In the 1950s, Democratic politicians in Virginia, led by Sen. Harry Byrd Sr., undertook an effort called "massive resistance." Through various legislative and administrative means, they sought to circumvent the mandate for school integration that the Supreme Court had issued in the 1954 case of Brown v. Board of Education.
Similar stirrings can be heard today in Illinois--specifically, from the Cook County State's Attorney's office, which prosecutes crimes in Chicago. At issue is not the 14th Amendment's guarantee of equal protection before the law, but the Second Amendment's guarantee of the right to keep and bear arms.
Over the past quarter-century, most states have enacted laws easing the burdens on citizens who wish to exercise their Second Amendment rights. But the Land of Lincoln has been a laggard--so much so that Illinois is now the only state in the country with an across-the-board ban on the carrying of concealed firearms in public.
That ban, as we noted in December, has been successfully challenged in court. In Moore v. Madigan, a three-judge panel of the Seventh U.S. Circuit Court of Appeals held, in the words of Judge Richard Posner, that "the Supreme Court's interpretation of the Second Amendment . . . compels us to reverse" lower-court decisions upholding the ban "and remand them to their respective district courts for the entry of declarations of unconstitutionality and permanent injunctions."
Immediately striking down the law and leaving nothing in its place could cause public-safety problems. To avoid this problem, Posner explained, "we order our mandate stayed for 180 days to allow the Illinois legislature to craft a new gun law that will impose reasonable limitations . . . on the carrying of guns in public." It was at a state House hearing in Springfield that the massive resistance-like idea was mooted.
"Prosecutors in Chicago are telling state lawmakers they can essentially ignore a federal court ruling and not legalize concealed carry in Illinois," reports the Illinois Watchdog website:
Paul Castiglione, policy director for the Cook County State's Attorney's office, told lawmakers there is no need for a new law.
"Only the Illinois Supreme Court can declare a statue [sic] from (the legislature) unconstitutional," Castiglione told lawmakers Tuesday. "I heard (someone) say that after 180 days our UUW (unlawful use of weapon) statute is unconstitutional. Not so."
Castiglione's assertion met with skepticism even from a Chicago Democrat, Rep. Michael Zalewski. "We're charged with passing a constitutional [law] down here in the next 60 to 90 days," the Watchdog quotes Zalewski as saying. "And if there is a dissenting belief that there is no ticking clock, it's going to cause all of us who wish to come to a constitutional, fair, and balanced solution [to have] a more difficult slog ahead."
Castiglione's constitutional theory is so bizarre and wrongheaded as to suggest either shocking ignorance or an intent to deceive. It's true that the Illinois Supreme Court is the final authority when it comes to interpreting the state constitution. But federal courts strike down state statutes all the time for violating the U.S. Constitution. In the 2010 case of McDonald v. Chicago, the U.S. Supreme Court held that the Second Amendment, like most other provisions of the Bill of Rights, is "incorporated" against the states. That means a state or local law violating it is as unconstitutional as a federal one.
The December ruling isn't necessarily the final word. Last month Illinois's Attorney General Lisa Madigan filed a petition asking the full Seventh Circuit to rehear the case. If that petition is denied or the full court upholds the panel's ruling, she could appeal to the U.S. Supreme Court, which has not yet taken a position on whether the Second Amendment protects a right to concealed carry.
It's entirely legitimate for the state to exhaust its appeals. But following Castiglione's advice to defy the authority of the federal courts would be as outrageously lawless as massive resistance was.