|Search & Seizure
Hiland v. Trent, 868 N.E. 2d 396, Third District
Appellate Court (5/16/07).
People v. Williams, 858 N.E. 2nd 606. Illinois Appellate Court, Ist District.
United States v. Cherry, 436 F. 3d 769 ( C.A. 7, Ill., 2006)
People v. Miller, 824 N.E. 2d 1080 ,
Illinois 1st District Appellate Court (2-7-05).
HUDSON v. MICHIGAN. United States Supreme Court, June 2006. 126 S. Ct. 2159
People v. Dieppa, 357 Ill.
App. 3d 847
ILLINOIS v. CABALLES. U.S.
Supreme Court (1/25/05)
writ of certiorari to the Supreme Court of Illinois. 03-923
DEVENPECK et al. v. ALFORD No.
People v. Parra, 352 Ill. App.
3d 584, 817 N.E. 2d 141 ( 2d Dist., 10/12/04)
People v. Travis Smith, 346
Ill. App. 3d 146, 803 N.E. 2d 1074
People v. Starbuck, 358 Ill
App. 3d 234 (3rd Dist. 2005)
People v. Mendoza, 846 N.E. 2d 169 (2d Dist App. Ct.,
People v. Frederick Hampton, 358 Ill App. 3d 1029 (2d Dist 2005)
and People v. Shinara Mathews, 357 Ill App. 3d 1062 (3rd Dist. 2005)
|DOJ Opinion: The Second Amendment secures a right of
Earlier this year a number of sites have reported the U.S. Department of
Justice Report directed to the United States Attorney General, which states
that the Second Amendment grants an individual right to keep and bear arms.
Prepared by various deputy attorney generals named at its conclusion, the
Memorandum Opinion addresses the important issue of whether the Second
Amendment secures an individual right. In its 62 page report with 41 pages of
citations, the conclusion reached was that "[t]he Second Amendment
secures a right of individuals generally, not a right of states or a right
restricted to persons serving in militias.”
|The report appears to embrace every major source covering the
2nd Amendment, including the original and correct understanding of
the “individual right” to keep and bear arms as known to the Founding Fathers
of the Constitution. It references the writings of Madison, Jefferson and
Hamilton, to name a few, and scholarly treatises by leading commentators such
as St. George Tucker, William Rawle, Joseph Story, and others.
|After addressing such topics as the right inherited from
England, the right in America before the framing, and the development of the
Second Amendment with interpretations by the early commentators noted above, it
moves forward to commentaries such as those of Thomas Cooley, the leading
post-Civil War constitutional scholar, and then to other works of 19th
and 20th century constitutional scholars, including treatises, law
review articles and texts written by some of the leading authorities on
the Second Amendment.
|The earliest cases dealing with the “individual right” to keep
and bear arms are discussed with explanations of why they did not become the
law of the land, as well as those, of recent date, leading to the mistaken
position taken by numerous State and Federal courts advocating the “collective
right” and “quasi-collective right” views.
|While the report is a “legal document” in the sense that it
covers just about every important case dealing with the subject, with legal
authorities noted, it is so well-documented and all-encompassing of the subject
that it should be read by anyone interested in the Second Amendment. This work
is a veritable compendium of research done over the centuries by many
constitutional scholars, and others, and it provides a cornucopia of authority
not to be found anywhere else to date.
|There is, however, one caveat that should be understood. The
compilares of this mammoth work stated the following from the onset:
|" Our analysis is limited to determining whether the
Amendment secures an individual, collective, or quasi-collective right. We do
not consider the substance of that right, including its contours or the nature
or type of governmental interests that would justify restrictions on its
exercise, and nothing in this memorandum is intended to address or call into
question the constitutionality, under the Second Amendment, of any particular
limitations on owning, carrying, or using firearms.”
|In other words, ladies and gentlemen, it’s nice to know that
the highest prosecutorial office in our nation recognizes the “individual-right”
in our 2nd Amendment. However, never forget that while the
intellectual battle may have been won, the fight continues in the trenches,
case by case. Hopefully, one day in the not too distant future, the U.S.
Supreme Court will embrace the intellectual argument of the true meaning of the
Second Amendment, as the DOJ sees it now, and correctly address the substance
of that individual-right view so as to prohibit restrictions on its
exercise--that is, when the right case comes along at the right time. You can
view the entire DOJ Opinion at:
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