The Law Q&A | The balance between rights, restrictions

The Law Q&A | The balance between rights, restrictions


Several weeks ago, we discussed the unconstitutionality of laws that do not rationally relate to promoting the health, safety and welfare of the public.

What about laws that arguably do, but infringe on specific constitutional rights? Like, say, the right to own firearms?

The Illinois Supreme Court wrestled with this question when in February this year it ruled as unconstitutional an Illinois law prohibiting the possession of weapons within 1,000 feet of a public park.

The U.S. Supreme Court had ruled in 2008 that the federal Constitution's Second Amendment guarantees an individual's right to bears arms but that such right remains subject to restrictions. Since then, a host of federal and state courts in Illinois have made rulings about the government restrictions of weapons possession.

Let's remember that the enumerated rights afforded people under federal or state constitutions have never been regarded by courts as being without reasonable restriction.

For example, the First Amendment says that "Congress shall make no law ... abridging the freedom of speech." Well, there are countless laws that abridge freedom of speech.

They have been ruled constitutional. Libel laws, child pornography laws, sedition and anti-espionage laws, sign ordinances, employer confidentiality laws, copyright and trademark infringement, and regulations imposed on broadcasting institutions are to name just a very, very few.

And, there are countless constitutionally valid laws regarding reasonable limitations on time, manner and place for public demonstrations. On and on and on.

Such restrictions are in the name of protecting society, done in balance with protecting the particular right given the individual to be free of government diktat. The competing interests of promoting the general welfare in legislation versus the individual's freedom from governmental constraint is unending.

To achieve that workable balance, when we do have a law that restricts a fundamental constitutional right, courts will give great care to see if the legislated restriction is narrowly tailored to best achieve the public interest sought to be protected.

While many laws survive a court's scrutiny, many will not if the burden on a freedom did concretely advance a particular public benefit.

In the case of weapons possession, which is now declared a fundamental right under the Second Amendment, the Illinois law prohibiting weapons possession inside a 1,000-foot boundary of public parks must be shown to be justified in protecting society.

The Illinois Supremes found the 1,000-foot distance to be a rather nebulous and arbitrary distance. While the obvious goal, as announced by the state, was the protecting of children or other vulnerable persons from gun violence, the prosecution in the case produced no evidence that such a restriction achieved that goal.

Had the prosecution done so, the Supremes would have upheld that restriction.

So, the next time there is a public demonstration regarding gun control, those counterdemonstrating in favor of "saving" their guns from gun-control proponents must remember that the right to own a weapon is not absolute.

Not by a gosh dang sight.

I wanted to use another adjective in front of "sight" but my gosh dang publisher won't allow that.

I think I've been abridged. But reasonably so.

Brett Kepley is a lawyer with Land of Lincoln Legal Assistance Foundation. You can send your questions to The Law Q&A, 302 N. First St., Champaign, IL 61820. Questions may be edited for space.