June 01, 2005

The Illinois House passed a

The Illinois House passed a bill Tuesday banning the sale of violent or sexually explicit video games to minors. The bill passed with an overwhelming 106-6 vote in favor of the ban. The bill now goes to Governor Rod Blogojevich, who proposed the ban last year after hearing of a game called JFK Reloaded which allows players to play the role of Lee Harvey Oswald in the assassination of President John F. Kennedy.

The bill passed the Illinois Senate earlier this month.

Other states and municipalities have tried similar bills, but they have repeatedly been struck down on First Amendment grounds. Under the impending law, clerks that knowingly sell adult video games to minors face a $1,000 fine, but the bill leaves it to the stores to determine which games are too violent or too sexually explicit for minors.

The proposed law has almost no chance of standing up to federal scrutiny. Not only does it place an undue burden upon stores to determine which games contain inappropriate content; it also fails to provide a significantly narrow definition of what constitutes violent or sexually explicit behavior, placing an undue burden upon store owners to make that determination without sufficient guidelines.

Two thoughts came to mind as I read of this proposed bill:

• That there are some similar problems between this bill and the practical failure of the “Assault Weapons Ban” embedded in the 1994 Crime Control and Prevention Act ( more commonly known as the “Assault Weapons Ban”) that expired last year, and;

• Illinois lawmakers must have known that this bill would not pass federal scrutiny based upon similar laws previously defeated… so why did they pass a bill that will almost certainly be challenged and struck down by federal courts once it becomes a law?

The 1994 Assault Weapons Ban signed into law by President Bill Clinton banned some specific firearms, but also attempted to ban similar weapons by banning certain features they felt were common to assault weapons. A partial list of these features included flash-hiders, pistol grips, and bayonet lugs.

The ban, while legal, was a practical failure. Firearm manufacturers simply removed the offending features and were then able to sell the exact same firearm type with only minor cosmetic changes.

It is a battle between the specific and the vague. The AW Ban failed because it tried to limit firearm access using specific but vague criteria, and the Illinois ban follows a similar path.

In the former, the 1994 Crime Bill was an attempt to get the desired result while ignoring the basic engineering truth that these firearm operating systems were identical to those of sporting guns. The lawmakers knew they could not pass a law that was a direct assault on the Second Amendment, and attempted a work-around that failed.

In the latter case , Illinois is attempting to get a desired result by while ignoring a basic truth that free speech, even speech we don't like, cannot be unreasonably constricted without just cause. They only compound their problems by unfairly placing an undue burden upon stores to determine what constitutes inappropriate content in an attempt to bypass the First Amendment.

So why are Illinois lawmakers so enthusiastically supporting a law that is destined to fail?

I have no easy answers, but suspect that it is a combination of some lawmakers trying to seriously address what they feel is a serious problem in our society, and others that calculated an immediate political gain from supporting such legislation with little or no political downside.

In any event, it will be interesting to see what Illinois lawmakers decide to once the law is signed and then almost certainly struck down. Will they go back to the proverbial drawing board and try to draft a constitutionally sound proposal, or will they simply throw their hands up and say, “we tried.”

Their response to a torpedoed law will go a long way towards telling us just how serious they really are.

Note: The bill that passed the House seems to be different that the version of the bill I discussed here in December.

Posted by Confederate Yankee at June 1, 2005 09:52 PM