VICTOR D. QUILICI, ROBERT STENGL, et al.,
GEORGE L. REICHERT, and ROBERT E. METLER, Plaintiffs-Appellants, v. VILLAGE OF
MORTON GROVE, et al., Defendants-Appellees
Nos. 82-1045, 82-1076, 82-1132
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
695 F.2d 261; 1982 U.S. App. LEXIS 23560
May 28, 1982, Argued
December 6, 1982, Decided
PRIOR HISTORY: [**1]
Appeal from the United States District Court for the Northern District of
Illinois, Eastern Division. Nos. 81 C 3432, 81 C 4086 & 81 C 5071 -- Bernard
M. Decker, Judge.
DISPOSITION: AFFIRMED.
COUNSEL: Victor D. Quilici,
Bennsonville, Illinois, Don B. Kates, Jr., O'Brien & Hallisey, San
Francisco, California, Richard V. Houpt, Pedersen & Houpt, Chicago,
Illinois, Donald J. Moran, for Plaintiff.
Eugene R. Wedoff, Jenner &
Block, Chicago, Illinois, for Defendant.
JUDGES: Bauer,
Wood, and Coffey, Circuit Judges. Coffey, Circuit Judge, dissenting.
OPINIONBY: BAUER
OPINION:
[*263] BAUER, Circuit Judge.
This appeal concerns the
constitutionality of the Village of Morton Grove's Ordinance No. 81-11, n1 which
prohibits the possession of handguns within the Village's borders.
[*264] The district court held that the Ordinance was
constitutional. We affirm.
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n1 Ordinance No. 81-11, in
pertinent part, provides:
AN ORDINANCE REGULATING THE POSSESSION OF FIREARMS AND OTHER
DANGEROUS WEAPONS
Whereas, it has been determined that in order to
promote and protect the health and safety and welfare of the public it is
necessary to regulate the possession of firearms and other dangerous weapons,
and
Whereas, the Corporate Authorities of the Village of Morton Grove
have found and determined that the easy and convenient availability of certain
types of firearms and weapons have increased the potentiality of firearm
related deaths and injuries, and
Whereas, handguns play a major role
in the commission of homicide, aggravated assault, and armed robbery, and
accidental injury and death.
Now, THEREFORE, BE IT ORDAINED BY THE
RESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF MORTON GROVE, COOK COUNTY,
ILLINOIS, AS FOLLOWS:
SECTION 1: The Corporate Authorities do hereby
incorporate the foregoing WHEREAS clauses into the Ordinance, thereby making
the findings as hereinabove set forth.
SECTION 2: That Chapter 132 of
the Code of Ordinances of the Village of Morton Grove be and is hereby amended
by the addition of the following section:
"Section 132.102.
Weapons Control
(A) Definitions:
Firearm: "Firearm"
means any device, by whatever name known, which is designed to expel a
projectile or projectiles by the action of an explosion, expansion of gas or
escape of gas; excluding however;
(1) Any pneumatic gun, spring gun or
B-B gun which expels a single globular projectile not exceeding.18 inches in
diameter.
(2) Any device used exclusively for signalling or safety and
required or recommended by the United States Coast Guard or the Interstate
Commerce Commission.
(3) Any device used exclusively for the firing of
stud cartridges, explosive rivets or similar industrial ammunition.
(4) An antique firearm (other than a machine gun) which, although
designed as a weapon, the Department of Law Enforcement of the State of
Illinois finds by reason of the date of its manufacture, value, design and
other characteristics is primarily a collector's item and is not likely to be
used as a weapon.
(5) Model rockets designed to propel a model vehicle
in a vertical direction.
Handgun: Any firearm which (a) is designed or
redesigned or made or remade, and intended to be fired while held in one hand
or (b) having a barrel of less than 10 inches in length or (c) a firearm of a
size which may be concealed upon the person.
Person: Any individual,
corporation, company, association, firm, partnership, club, society or joint
stock company.
Handgun Dealer: Any person engaged in the business of
(a) selling or renting handguns at wholesale or retail (b) manufacture of
handguns (c) repairing handguns or making or firing special barrels or trigger
mechanisms to handguns.
Licensed Firearm Collector: Any person
licensed as a collector by the Secretary of the Treasury of the United States
under and by virtue of Title 18, United States Code, Section 923.
Licensed Gun Club: A club or organization, organized for the purpose
of practicing shooting at targets, licensed by the Village of Morton Grove
under Section 90.20 of the Code of Ordinances of the Village of Morton Grove.
(B) Possession:
No person shall possess, in the
Village of Morton Grove the following:
(1) Any bludgeon, black-jack,
slug shot, sand club, sand bag, metal knuckles or any knife, commonly referred
to as a switchblade knife, which has a blade that opens automatically by hand
pressure applied to a button, spring, or other device in the handle of the
knife, or
(2) Any weapon from which 8 or more shots or bullets may be
discharged by a single function of the firing device, any shotgun having one
or more barrels less than 18 inches in length, sometimes called a sawed off
shotgun or any weapon made from a shotgun, whether by alteration, modification
or otherwise, if such weapon, as modified or altered has an overall length of
less than 26 inches, or a barrel length of less than 18 inches or any bomb,
bomb-shell, grenade, bottle or other container containing an explosive
substance of over one-quarter ounce for like purposes, such as, but not
limited to black powder bombs and molotov cocktails or artillery projectiles;
or
(3) Any handgun, unless the same has been rendered permanently
inoperative.
(C) Subsection B(1) shall not apply to or affect any
peace officer.
(D) Subsection B(2) shall not apply to or
affect the following:
(1) Peace officers;
(2) Wardens,
superintendents and keepers of prisons, penitentiaries, jails and other
institutions for the detention of persons accused or convicted of an offense;
(3) Members of the Armed Services or Reserve Forces of the United
States or the Illinois National Guard, while in the performance of their
official duties; and
(4) Transportation of machine guns to those
persons authorized under Subparagraphs (1) and (2) of this subsection to
possess machine guns, if the machine guns are broken down in a non-functioning
state or not immediately accessible.
(E) Subsection B(3) does not
apply to or affect the following:
(1) Peace officers or any
person summoned by any peace officer to assist in making arrests or preserving
the peace while he is actually engaged in assisting such officer and if such
handgun was provided by the peace officer;
(2) Wardens,
superintendents and keepers of prisons, penitentiaries, jails and other
institutions for the detention of persons accused or convicted of an offense;
(3) Members of the Armed Services or Reserve Forces of the United
States or the Illinois National Guard or the Reserve Officers Training Corps
while in the performance of their official duties.
(4) Special Agents
employed by a railroad or a public utility to perform police functions; guards
of armored car companies; watchmen and security guards actually and regularly
employed in the commercial or industrial operation for the protection of
persons employed and private property related to such commercial or industrial
operation;
(5) Agents and investigators of the Illinois Legislative
Investigating Commission authorized by the commission to carry such weapons;
(6) Licensed gun collectors;
(7) Licensed gun clubs provided
the gun club has premises from which it operates and maintains possession and
control of handguns used by its members, and has procedures and facilities for
keeping such handguns in a safe place, under the control of the club's chief
officer, at all times when they are not being used for target shooting or
other sporting or recreational purposes at the premises of the gun club; and
gun club members while such members are using their handguns at the gun club
premises;
(8) A possession of an antique firearm;
(9)
Transportation of handguns to those persons authorized under Subparagraphs 1
through 8 of this subsection to possess handguns, if the handguns are broken
down in a non-functioning state or not immediately accessible.
(10)
Transportation of handguns by persons from a licensed gun club to another
licensed gun club or transportation from a licensed gun club to a gun club
outside the limits of Morton Grove; provided however that the transportation
is for the purpose of engaging in competitive target shooting or for the
purpose of permanently keeping said handgun at such new gun club; and provided
further that at all times during such transportation said handgun shall have
trigger locks securely fastened to the handgun.
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[**2]
I
Victor D. Quilici initially
challenged Ordinance No. 81-11 in state court. Morton Grove removed the action
to federal court where it was consolidated with two similar actions, one brought
by George L. Reichert and Robert E. Metler (collectively Reichert) and one
brought by Robert Stengl, Martin Gutenkauf, Alice Gutenkauf, Walter J. Dutchak
and Geoffrey Lagonia (collectively Stengl). Plaintiffs alleged that Ordinance
#81-11 violated article I, section 22 of the Illinois Constitution and the
second, ninth and fourteenth amendments of the [*265] United States
Constitution. They sought an order declaring the Ordinance unconstitutional and
permanently enjoining its enforcement. The parties filed cross motions for
summary judgment. The district court granted Morton Grove's motion for summary
judgment and denied plaintiffs' motions for summary judgment.
In its
opinion, Quilici v. Village of Morton Grove, 532 F.
Supp. 1169 (N.D. Ill. 1981), the district court set forth several reasons for
upholding the handgun ban's validity under the state and federal constitutions.
First, it held that the Ordinance which banned only certain kinds of arms was a
valid exercise [**3] of Morton Grove's police power and did not
conflict with section 22's conditional right to keep and bear arms. Second,
relying on Presser v. Illinois, 116 U.S. 252, 29 L.
Ed. 615, 6 S. Ct. 580 (1886), the court concluded that the second amendment's
guarantee of the right to bear arms has not been incorporated into the
fourteenth amendment and, therefore, is inapplicable to Morton Grove. Finally,
it stated that the ninth amendment does not include the right to possess
handguns for self-defense. Appellants contend that the district court
incorrectly construed the relevant constitutional provisions, assigning numerous
errors based on case law, historical analysis, common law traditions and public
policy concerns. n2
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n2 Three amici briefs were also filed,
by the Illinois State Rifle Association, the Handgun Control, Inc., and the
States of Arizona, Connecticut, Hawaii, Idaho, Louisiana, Missouri, Montana,
Nevada, North Carolina, Oregon and Wyoming collectively. We have considered the
arguments raised in these briefs and find that, for the most part, they raise
the same arguments as those raised by the parties.
However, the states'
amici curiae brief raises one issue not raised by the parties or addressed by
the district court. The states argue that the district court should have
abstained because the federal court may not construe a state constitutional
provision when the state court has not yet had the opportunity to construe that
provision. Amici Curiae br. at 8. The states admit that abstention is not
required when the state constitutional provision parallels the federal
constitutional provision. However, relying on Railroad Comm'n v. Pullman
Co., 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941), they assert that
the state constitutional provision involved in this case is unique, and thus,
the federal court should not have prematurely usurped the state's prerogative to
interpret its own constitution.
We disagree. Since abstention is not
mandatory, the federal court must determine whether abstention is appropriate in
a particular case. 1A Moore's Federal Practice § 0.203[1] at 2105 (1977).
Federal courts have been reluctant to abstain when fundamental rights such as
voting, racial equality or rights of expression are involved. Id. at
2111-12. We consider the issue of gun control of vital importance to every
citizen and, for this reason, do not believe that abstention is any more
appropriate in this case than in cases where fundamental rights are involved.
Moreover, the purpose of the abstention doctrine is to minimize the conflict
between the federal and state systems. Railroad Comm'n v. Pullman Co.,
312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941). There is no conflict here,
for Morton Grove voluntarily removed this case to federal court. Accordingly, we
find that the abstention doctrine has no relevance.
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[**4]
While we recognize that this case raises controversial
issues which engender strong emotions, our task is to apply the law as it has
been interpreted by the Supreme Court, regardless of whether that Court's
interpretation comports with various personal views of what the law should be.
We are also aware that we must resolve the controversy without rendering
unnecessary constitutional decisions. Richard Nixon v. A. Ernest
Fitzgerald, 457 U.S. 731, 102 S. Ct. 2690, 73 L. Ed. 2d 349 (1982). With
these principles in mind we address appellants' contentions.
II
We consider the state constitutional issue first. The Illinois
Constitution provides:
Subject only to the police power, the right of the individual
citizen to keep and bear arms shall not be infringed.
Ill. Const. art. I, § 22. The parties agree that the meaning of this
section is controlled by the terms "arms" and "police power" but disagree as to
the scope of these terms.
Relying on the statutory construction
principles that constitutional guarantees should be broadly construed and that
constitutional [*266] provisions should prevail over conflicting
statutory provisions, appellants [**5] allege that section 22's
guarantee of the right to keep and bear arms prohibits a complete ban of any one
kind of arm. They argue that the constitutional history of section 22
establishes that the term "arms" includes those weapons commonly employed for
"recreation or the protection of person and property," 6 Record of Proceedings,
Sixth Illinois Constitutional Convention 87 (Proceedings), and contend that
handguns have consistently been used for these purposes.
Appellants
concede that the phrase "subject to the police power" does not prohibit
reasonable regulation of arms. Thus, they admit that laws which require the
licensing of guns or which restrict the carrying of concealed weapons or the
possession of firearms by minors, convicted felons, and incompetents are valid.
However, they maintain that no authority supports interpreting section 22 to
permit a ban on the possession of handguns merely because alternative weapons
are not also banned. They argue that construing section 22 in this manner would
lead to the anomalous situation in which one municipality completely bans
handguns while a neighboring municipality completely bans all arms but handguns.
In contrast, Morton Grove [**6] alleges that "arms" is a
general term which does not include any specific kind of weapon. Relying on
section 22's language, which they characterize as clear and explicit, Morton
Grove reads section 22 to guarantee the right to keep only some, but not all,
arms which are used for "recreation or the protection of person and property."
It argues that the Ordinance passes constitutional muster because standard
rifles and shotguns are also used for "recreation or the protection of person
and property" and Ordinance #81-11 does not ban these weapons.
While
Morton Grove does not challenge appellants' assertion that "arms" includes
handguns, we believe that a discussion of the kind of arms section 22 protects
is an appropriate place to begin our analysis. Because we disagree with Morton
Grove's assertion that section 22's language is clear and explicit, we turn to
the constitutional debates for guidance on the proper construction of arms. n3
Client Follow-Up Co. v. Hynes, 75 Ill. 2d 208, 216, 390 N.E.2d 847,
850, 28 Ill. Dec. 488 (1979), citing Wolfson v. Avery, 6 Ill.2d 78, 126
N.E.2d 701 (1955). n4
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n3 In construing section
22, the district court also relied heavily on the constitutional debates.
Appellants challenge this reliance, arguing that constitutional ambiguities are
best resolved by the voters' understanding at the time of the vote on the
proposed constitution. Appellants contend that the voters' understanding should
be gleaned from: (1) the Official Explanation published prior to the
ratification vote; (2) newspaper articles discussing the proposed section 22;
and (3) the meaning which the voters were likely to have attributed to the term
"police power." Since the district court thoroughly analyzed, and properly
rejected, this theory of statutory construction, Quilici v.
Village of Morton Grove, 532 F. Supp. at 1174-75, we need not repeat that
analysis here. [**7]
n4 Reichert cites Client Follow-Up
Co. v. Hynes, 75 Ill.2d 208, 390 N.E.2d 847, 28 Ill. Dec. 488 (1979) to
support his assertion that the district court erroneously relied on the
constitutional convention debates to construe section 22. He contends that
Client Follow-Up holds that constitutional convention debates are
useful only when those debates demonstrate a consensus among the delegates.
Reichert correctly states the Client Follow-Up holding, but ignores the
fact that the Proceedings indicate a majority consensus among the delegates as
to the meaning of section 22. See, e.g., 3 Proceedings 1711, 1717-19,
1818.
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The debates indicate that the category of arms
protected by section 22 is not limited to military weapons; the framers also
intended to include those arms that "law-abiding persons commonly employed" for
"recreation or the protection of person and property." 6 Proceedings 87.
Handguns are undisputedly the type of arms commonly used for "recreation or the
protection of person and property."
Our conclusion that the framers
intended to include handguns [**8] in the class of protected arms is
supported by the fact that in discussing the term the Proceedings refer to
People v. Brown, 253 Mich. 537, 541-42, 235 N.W. 245, 246-47 (1931) and
State v. Duke, [*267] 42 Tex. 455, 458
(1875). Brown defines weapons as those "relied upon . . . for defense
or pleasure," including "ordinary guns" and "revolvers." 253 Mich. at 542, 235
N.W. at 247. Duke states that "the arms which every person is secured
the right to keep and bear (in defense of himself or the State, subject to
legislative regulation), must be such arms as are commonly kept, . . . and are
appropriate for . . . self-defense, as well as such as are proper for the
defense of the State." 42 Tex. at 458. The delegates' statements and reliance on
Brown and Duke convinces us that the term arms in section 22
includes handguns.
Having determined that section 22 includes handguns
within the class of arms protected, we must now determine the extent to which a
municipality may exercise its police power to restrict, or even prohibit, the
right to keep and bear these arms. The district court concluded that section
[**9] 22 recognizes only a narrow individual right which is subject
to substantial legislative control. It noted that "to the extent that one looks
to the convention debate for assistance in reconciling the conflict between the
right to arms and the exercise of the police power, the debate clearly supports
a narrow construction of the individual right." Quilici v.
Village of Morton Grove, 532 F. Supp. at 1174. It further noted that while
the Proceedings cite some cases holding that the state's police power should be
read restrictively, those cases were decided under "distinctly different
constitutional provisions" and, thus, have little application to this case.
Id. at 1176.
We agree with the district court that the right to
keep and bear arms in Illinois is so limited by the police power that a ban on
handguns does not violate that right. In reaching this conclusion we find two
factors significant. First, section 22's plain language grants only the right to
keep and bear arms, not handguns. Second, although the framers intended handguns
to be one of the arms conditionally protected under section 22, they also
envisioned that local governments might [**10] exercise their police
power to restrict, or prohibit, the right to keep and bear handguns. For
example, Delegate Foster, speaking for the majority, explained:
It could be argued that, in theory, the legislature now
[prior to the adoption of the 1970 Illinois Constitution] has the right to ban
all firearms in the state as far as individual citizens owning them is
concerned. That is the power which we wanted to restrict -- an absolute ban on
all firearms.
3 Proceedings 1688. Delegate Foster
then noted that section 22 "would prevent a complete ban on all guns, but there
could be a ban on certain categories." Id. at 1693. n5 It is difficult
to imagine clearer evidence that section 22 was intended to permit a
municipality to ban handguns if it so desired.
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n5 The
Proceedings are replete with other statements supporting our holding. See, for
example, Delegate Foster's statement that "we feel that under . . . [section 22]
. . . the state would have the right to prohibit some classes of firearms, such
as war weapons, handguns, or some other category." 3 Proceedings 1818. See also
his statement immediately prior to the vote on the proposed section 22 that: "it
is the position of the majority that under the police power of the state, the
legislature would have the authority, for example, to forbid all handguns . . .
[and] it is still the position of the majority that short of an absolute and
complete ban on the possession of all firearms, this provision would leave the
legislature free to regulate the use of firearms in Illinois." 3 Proceedings
1718.
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Appellants argue that construing
section 22 to protect only some unspecified categories of arms, thereby allowing
municipalities to exercise their police power to enact dissimilar gun control
laws, leads to "untenable" and "absurd" results. Quilici br. at
14. This argument ignores the fact that the Illinois Constitution authorizes
local governments to function as home rule units to "exercise any power and
perform any function pertaining to its government and affairs". Illinois Const.
art. VIII, § 6(a). Home rule government n6 is based [*268] on the
the theory that local governments are in the best position to assess the needs
and desires of the community and, thus, can most wisely enact legislation
addressing local concerns. Carlson v. Briceland, 61 Ill. App. 3d 247,
377 N.E.2d 1138, 18 Ill. Dec. 502 (1978). Illinois home rule units have
expansive powers to govern as they deem proper, see generally Hall
& Wallack, Intergovernmental Cooperation and the Transfer of
Powers, 1981 U. Ill. L. Rev. 775, 777-79; Vitullo & Peters,
Intergovermental Cooperation and the Municipal Insurance
Crisis, 30 DePaul L. Rev. 325, 326-29 (1981); [**12]
including the authority to impose greater restrictions on particular rights than
those imposed by the state. See City of Evanston v. Create,
Inc., 85 Ill. 2d 101, 421 N.E.2d 196, 51 Ill. Dec. 688 (1981). The only
limits on their autonomy are those imposed by the Illinois Constitution,
City of Carbondale ex rel. Ham v. Eckert, 76 Ill. App. 3d 881, 395
N.E.2d 607, 32 Ill. Dec. 377 (1979), or by the Illinois General Assembly
exercising its authority to pre-empt home rule in specific instances. Because we
have concluded that the Illinois Constitution permits a ban on certain
categories of arms, home rule units such as Morton Grove may properly enact
different, even inconsistent, arms restrictions. This is precisely the kind of
local control envisioned by the new Illinois Constitution.
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n6 Ill. Const. Art. VII, § 6(a) provides:
A County which has a chief executive officer elected by the county
and any municipality which has a population of more than 25,000 are home rule
units. Other municipalities may elect by referendum to become home rule units.
Except as limited by this Section, a home rule unit may exercise any power and
perform any function pertaining to its government and affairs including, but
not limited to, the power to regulate for the protection of the public health,
safety, morals and welfare; to license; to tax and to incur
debt.
The parties do not dispute the fact that Morton
Grove is a home rule unit and the court notes that, in 1980, Morton Grove passed
a referendum maintaining its home rule status pursuant to Ill. Const. Art. VII,
§ 6(a).
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Appellants concede that
municipalities may, under the Illinois Constitution, exercise their police power
to enact regulations which prohibit "possession of items legislatively found to
be dangerous . . .", Quilici br. at 9. They draw a distinction,
however, between the exercise of the police power in general and the exercise of
police power with respect to a constitutionally protected right. Indeed, they
vehemently insist that a municipality may not exercise its police power to
completely prohibit a constitutional guarantee.
We agree that the state
may not exercise its police power to violate a positive constitutional mandate,
People v. Warren, 11 Ill. 2d 420, 143 N.E.2d 28 (1957), but we
reiterate that section 22 simply prohibits an absolute ban on all firearms.
Since Ordinance No. 81-11 does not prohibit all firearms, it does not prohibit a
constitutionally protected right. There is no right under the Illinois
Constitution to possess a handgun, nor does the state have an overriding state
interest in gun control which requires it to retain exclusive control in order
to prevent home rule units from adopting conflicting enactments. See
City of Evanston v. Create, Inc. , 85 Ill.2d 101, 421 N.E.2d 196,
51 Ill. Dec. 688 (1981). [**14] Accordingly, Morton Grove may
exercise its police power to prohibit handguns even though this prohibition
interferes with an individual's liberty or property. People v. Warren,
11 Ill.2d 420, 143 N.E.2d 28 (1957).
The Illinois Constitution
establishes a presumption in favor of municipal home rule. Carlson v.
Briceland, 61 Ill. App. 3d 247, 377 N.E.2d 1138, 18 Ill.
Dec. 502 (1978). Once a local government identifies a problem and enacts
legislation to mitigate or eliminate it, that enactment is presumed valid and
may be overturned only if it is unreasonable, clearly arbitrary, and has no
foundation in the police power. Illinois Gamefowl Breeders Ass'n v.
Block, 75 Ill.2d 443, 389 N.E.2d 529, 27 Ill. Dec. 465 (1979); People
v. Copeland, 92 Ill. App. 3d 475, 415 N.E.2d 1173, 47 Ill. Dec. 860 (1st
Dist. 1980). Thus, it is not the province of this court to pass judgment on the
merits of Ordinance No. 81-11; our task is simply to determine whether Ordinance
No. 81-11's restrictions are rationally related to its stated goals. People
ex rel. Difanis v. Barr, 83 Ill.2d 191, 414 N.E.2d 731, 46 Ill. Dec. 678
(1980). [**15] As the district court noted, there is at least
[*269] some empirical evidence that gun control legislation may
reduce the number of deaths and accidents caused by handguns.
Quilici v. Village of Morton Grove, 532 F. Supp. at
1179. This evidence is sufficient to sustain the conclusion that Ordinance No.
81-11 is neither wholly arbitrary nor completely unsupported by any set of
facts. People v. Copeland, 92 Ill. App. 3d 475, 415 N.E.2d 1173, 47
Ill. Dec. 860 (1st Dist. 1980). Accordingly, we decline to consider plaintiffs'
arguments that Ordinance No. 81-11 will not make Morton Grove a safer, more
peaceful place.
We agree with the district court that Ordinance No.
81-11: (1) is properly directed at protecting the safety and health of Morton
Grove citizens; (2) is a valid exercise of Morton Grove's police power; and (3)
does not violate any of appellants' rights guaranteed by the Illinois
Constitution. n7
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n7 We note that Kalodimos v. Village
of Morton Grove, 81 Ch. 6424 slip op. (Cook County, Ill. Jan. 29, 1982) in
which Reichert was one of several plaintiffs, is consistent with our analysis
here.
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III
We next consider
whether Ordinance No. 81-11 violates the second amendment to the United States
Constitution. While appellants all contend that Ordinance No. 81-11 is invalid
under the second amendment, they offer slightly different arguments to
substantiate this contention. All argue, however, that the second amendment
applies to state and local governments and that the second amendment guarantee
of the right to keep and bear arms exists, not only to assist in the common
defense, but also to protect the individual. While reluctantly conceding that
Presser v. Illinois, 116 U.S. 252, 29 L. Ed. 615, 6 S. Ct. 580 (1886),
held that the second amendment applied only to action by the federal government,
they nevertheless assert that Presser also held that the right to keep
and bear arms is an attribute of national citizenship which is not subject to
state restriction. Reichert br. at 36. Finally, apparently responding to the
district court's comments that "plaintiffs . . . have not suggested that the
Morton Grove Ordinance in any way interferes with the ability of the United
States to maintain public security . . ." Quilici v.
Village of Morton Grove, 532 F. Supp. at 1169, [**17]
Quilici and Reichert argue in this court that the Morton Grove
Ordinance interferes with the federal government's ability to maintain public
security by preventing individuals from defending themselves and the community
from "external or internal armed threats." Quilici br. at 12;
Reichert br. at 37-38. These are the same arguments made in the district court.
Accordingly, we comment only briefly on the points already fully analyzed in
that court's decision.
As we have noted, the parties agree that
Presser is controlling, but disagree as to what Presser held.
It is difficult to understand how appellants can assert that Presser
supports the theory that the second amendment right to keep and bear arms is a
fundamental right which the state cannot regulate when the Presser
decision plainly states that "the Second Amendment declares that it shall not be
infringed, but this . . . means no more than that it shall not be infringed by
Congress. This is one of the amendments that has no other effect than to
restrict the powers of the National government. . . ." Presser v.
Illinois, 116 U.S. 252, 265, 29 L. Ed. 615, 6 S. Ct. 580
(1886). As the district [**18] court explained in detail,
appellants' claim that Presser supports the proposition that the second
amendment guarantee of the right to keep and bear arms is not subject to state
restriction is based on dicta quoted out of context.
Quilici v. Village of Morton Grove, 532 F. Supp. at
1181-82. This argument borders on the frivolous and does not warrant any further
consideration.
Apparently recognizing the inherent weakness of their
reliance on Presser, appellants urge three additional arguments to
buttress their claim that the second amendment applies to the states. They
contend that: (1) Presser is no longer good law because later Supreme
Court cases incorporating [*270] other amendments into the
fourteenth amendment have effectively overruled Presser, Reichert br.
at 52; (2) Presser is illogical, Quilici br. at 12;
and (3) the entire Bill of Rights has been implicitly incorporated into the
fourteenth amendment to apply to the states, Reichert br. at 48-52.
None
of these arguments has merit. First, appellants offer no authority, other than
their own opinions, to support their arguments that Presser is no
longer good law or would have [**19] been decided differently today.
Indeed, the fact that the Supreme Court continues to cite Presser, Malloy v.
Hogan, 378 U.S. 1, 4 n.8, 12 L. Ed. 2d 653, 84 S. Ct. 1489 (1964), leads to
the opposite conclusion. Second, regardless of whether appellants agree with the
Presser analysis, it is the law of the land and we are bound by it.
Their assertion that Presser is illogical is a policy matter for the
Supreme Court to address. Finally, their theory of implicit incorporation is
wholly unsupported. The Supreme Court has specifically rejected the proposition
that the entire Bill of Rights applies to the states through the fourteenth
amendment. Adamson v. California, 332 U.S. 46, 91 L. Ed. 1903, 67 S.
Ct. 1672 (1947), overruled on other grounds, Malloy v. Hogan,
378 U.S. 1, 12 L. Ed. 2d 653, 84 S. Ct. 1489 (1964); Palko v.
Connecticut, 302 U.S. 319, 82 L. Ed. 288, 58 S. Ct. 149 (1937); Twining
v. New Jersey, 211 U.S. 78, 53 L. Ed. 97, 29 S. Ct. 14 (1908).
Since we hold that the second amendment does not apply to the states, we
need not consider the scope of its guarantee of the right [**20] to
bear arms. For the sake of completeness, however, and because appellants devote
a large portion of their briefs to this issue, we briefly comment on what we
believe to be the scope of the second amendment.
The second amendment
provides that "A well regulated Militia being necessary to the security of a
free State, the right of the people to keep and bear Arms, shall not be
infringed." U.S. Const. amend. II. Construing this language according to its
plain meaning, it seems clear that the right to bear arms is inextricably
connected to the preservation of a militia. This is precisely the manner in
which the Supreme Court interpreted the second amendment in United States v.
Miller, 307 U.S. 174, 83 L. Ed. 1206, 59 S. Ct. 816 (1939), the only
Supreme Court case specifically addressing that amendment's scope. There the
Court held that the right to keep and bear arms extends only to those arms which
are necessary to maintain a well regulated militia.
In an attempt to
avoid the Miller holding that the right to keep and bear arms exists
only as it relates to protecting the public security, appellants argue that "the
fact that the right to keep and bear arms is [**21] joined with
language expressing one of its purposes in no way permits a construction which
limits or confines the exercise of that right." Reichert br. at 35. They offer
no explanation for how they have arrived at this conclusion. Alternatively, they
argue that handguns are military weapons. n8 Stengl's br. at 11-13. Our reading
of Miller convinces us that it does not support either of these
theories. As the Village correctly notes, appellants are essentially arguing
that Miller was wrongly decided and should be overruled. Such arguments
have no place before this court. Under the controlling authority of
Miller we conclude that the right to keep and bear handguns is not
guaranteed by the second amendment. n9
- - - - - - - - - - - - -
- - - - -Footnotes- - - - - - - - - - - - - - - - - -
n8 Appellants
devote a portion of their briefs to historical analysis of the development of
English common law and the debate surrounding the adoption of the second and
fourteenth amendments. This analysis has no relevance on the resolution of the
controversy before us. Accordingly, we decline to comment on it, other than to
note that we do not consider individually owned handguns to be military weapons.
[**22]
n9 A similar conclusion has been reached by numerous
other courts. United States v. Oakes, 564 F.2d 384 (6th Cir. 1977),
cert. denied, 435 U.S. 926, 55 L. Ed. 2d 521, 98 S. Ct. 1493 (1978);
United States v. Warin, 530 F.2d 103 (6th Cir.), cert. denied,
426 U.S. 948, 49 L. Ed. 2d 1185, 96 S. Ct. 3168 (1976); Cody v. United
States, 460 F.2d 34 (8th Cir.), cert. denied, 409 U.S. 1010, 34 L.
Ed. 2d 303, 93 S. Ct. 454 (1972); Stevens v. United States, 440 F.2d
144 (6th Cir. 1971).
- - - - - - - - - - - - - - - - -End
Footnotes- - - - - - - - - - - - - - - - -
[*271] Because
the second amendment is not applicable to Morton Grove and because possession of
handguns by individuals is not part of the right to keep and bear arms,
Ordinance No. 81-11 does not violate the second amendment.
IV
Finally, we consider whether Ordinance No. 81-11 violates the ninth
amendment. Appellants argue that, although the right to use commonly-owned arms
for self-defense is not explicitly listed in the Bill of Rights, it is a
fundamental right protected by the ninth [**23] amendment. Citing no
authority which directly supports their contention, they rely on the debates in
the First Congress and the writings of legal philosophers to establish that the
right of an individual to own and possess firearms for self-defense is an
absolute and inalienable right which cannot be impinged.
Since
appellants do not cite, and our research has not revealed, any Supreme Court
case holding that any specific right is protected by the ninth amendment,
appellants' argument has no legal significance. Appellants may believe the ninth
amendment should be read to recognize an unwritten, fundamental, individual
right to own or possess firearms; the fact remains that the Supreme Court has
never embraced this theory. n10
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-Footnotes- - - - - - - - - - - - - - - - - -
n10 Appellants also
argued, in the district court, that Ordinance No. 81-11 violated the fifth
amendment and is unconstitutionally vague. These arguments were not raised in
this court.
- - - - - - - - - - - - - - - - -End Footnotes- - - -
- - - - - - - - - - - - -
V
Reasonable people may differ about
the wisdom of Ordinance No. 81-11. History may prove that [**24] the
Ordinance cannot effectively promote peace and security for Morton Grove's
citizens. Such issues, however, are not before the court. We simply hold the
Ordinance No. 81-11 is a proper exercise of Morton Grove's police power and does
not violate art. I, § 22 of the Illinois Constitution or the second, ninth, or
fourteenth amendments of the United States Constitution. Accordingly, the
decision of the district court is
AFFIRMED.
DISSENTBY: COFFEY
DISSENT:
COFFEY, Circuit Judge, dissenting.
The constitutions of the United
States and the respective states define and delineate the powers of our various
governmental units. As a fundamental principle, if a governing body (federal,
state or local) should at any time overstep its limits the judiciary must act as
a constitutional check. This was the intent of the framers of the Constitution
as evidenced by their dividing the powers and responsibilities of the government
into three separate and distinct branches. Specifically, if a legislative body
enacts a law exceeding the constitutional limits of its authority, it is the
responsibility and the duty of an independent judiciary to declare it void.
With this principle in mind and [**25] conscious of the
magnitude of the political and social implications of this case, I am compelled
to dissent from my brethren today. It is my opinion that the Village of Morton
Grove has improperly legislated beyond the legitimate parameters of its
authority.
I base my conclusion upon three grounds. First, Morton Grove
Ordinance No. 81-11 is an impermissible attempt by the governing body of the
Village to address an issue which the people of the State of Illinois through
their elected representatives have deemed to be a matter properly resolved by
state action. The state's long-standing and comprehensive regulation and
prohibition of handgun possession preempts local legislation on the subject.
Second, and closely related to the first, I believe that the Ordinance is
invalid under the home rule provisions of the Illinois Constitution in that the
regulation of handgun possession is a matter of statewide rather than local
concern and the Morton Grove Ordinance contradicts state law regarding the
possession of handguns. Third, I believe that Morton Grove Ordinance No. 81-11,
as a matter of constitutional law, impermissibly interferes [*272]
with individual privacy rights. I [**26] join others who throughout
history have recognized that an individual in this country has a protected
right, within the confines of the criminal law, to guard his or her home or
place of business from unlawful intrusions. In my view, today's majority
decision marks a new nadir for the fundamental principle that "a man's home is
his castle." It has been said that the greatest threat to our liberty is from
well-meaning, and almost imperceptible governmental encroachments upon our
personal freedom. Today's decision sanctions an intrusion on our basic rights as
citizens which would no doubt be alarming and odious to our founding fathers.
For the above-cited reasons, which I shall discuss in greater detail herein, I
respectfully dissent from the opinion of this court.
I.
The
Village of Morton Grove's Ordinance No. 81-11 is invalid as the law is an
improper attempt by the locality to address a subject which has been deemed by
the Illinois Legislature to be exclusively a matter of state concern and
control. The state legislature, through extensive and long-standing regulation,
has preempted the subject of handgun possession.
Although most
frequently addressed in the context of federal [**27] versus state
enactments, the doctrine of preemption has been recognized as also being
applicable to situations involving duplicate areas of state and local
legislation. The Illinois Supreme Court has recognized that the existence of
long-standing and extensive state regulation of a certain subject matter
evidences an implied intent to preempt that field to the exclusion of local
municipalities. In Ampersand, Inc. v. Finley, 61 Ill.2d 537, 338 N.E.2d
15 (1975), the Illinois Supreme Court acknowledged and approved the following
examples contained in the Record of the Proceedings of the Sixth Illinois
Constitutional Convention:
"'Home Rule County adopts an ordinance providing for limits
upon rates of interest that may be charged on mortgage and other loans to
residents of the Country. This ordinance is not valid. The interest-control
ordinance is not included in the home-rule powers granted by [section 6(a)]
because of the extensive federal and state regulation of credit
institutions.'
* * *
'Home Rule City adopts an ordinance
limiting the rates that may be charged by the telephone company for local
calls. Long-standing state regulation of [**28]
utility rates precludes this subject from being considered a matter
pertaining to home-rule government and affairs.'"
Id. 338 N.E.2d at 17 (emphasis added).
The Illinois
Appellate Court has also recognized that "where the legislature has adopted a
scheme for regulation of a given subject, local legislative control over such
phases of the subject as are covered by state regulation ceases." Hutchcraft
Van Serv. v. City of Urbana, Etc., 104 Ill.App.3d 817, 433 N.E.2d 329, 333,
60 Ill. Dec. 532 (1982). n1 The Hutchcraft court held that "the
legislature has preempted the subject of freedom from unlawful discrimination."
Id. at 334. In so deciding, the court emphasized that it "would be
hard-put to envision a more comprehensive statutory scheme than that contained
in the Illinois Human Rights Act." Id. Similarly, the subject of the
prohibition of handgun possession has been impliedly preempted by the Illinois
Legislature because one would be "hard-put to envision a more comprehensive
statutory scheme than that" set forth in the state statutes on the subject of
handgun possession.
- - - - - - - - - - - - - - - - - -Footnotes-
- - - - - - - - - - - - - - - - -
n1 On October 5, 1982, the Illinois
Supreme Court denied a petition for leave to appeal the Hutchcraft
decision, Illnois Supreme Court Docket No. 56635.
- - - - - - - -
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[**29]
The Illinois Legislature, when enacting and amending
chapter 38, set forth an extensive scheme, applying to all persons in Illinois,
regulating who may possess firearms, when and where they may possess firearms
and the types of firearms they may possess. Possession of a handgun or
[*273] other firearm by a minor, felon, drug addict or mentally ill
or retarded person is forbidden by Illinois statute. Ill. Rev.Stat.ch. 38, §
24-3.1. n2 Chapter 38, § 24-1(a) (10) of the Illinois statutes already prohibits
possession of a handgun by a person on a public street, alley or public lands n3
and the carrying of a concealed handgun under certain circumstances is
proscribed by Ill. Rev. Stat. ch. 38, § 24-1(a) (4). n4 Additionally, it is a
violation of state law to possess a firearm in an establishment licensed to sell
liquor, wine or beer. n5 Moreover, the legislature has banned the possession of
specific types of firearms (i.e., machine guns and sawed-off shotguns) in all
circumstances but has refrained from enacting such a categorical prohibition of
handgun possession. n6
- - - - - - - - - - - - - - - - -
-Footnotes- - - - - - - - - - - - - - - - - -
n2 Ill. Rev. Stat. ch. 38,
§ 24-3.1 provides in pertinent part:
"24-3.1. Unlawful possession of firearms and firearm ammunition.
(a) A person commits the offense of unlawful possession of firearms or
firearm ammunition when:
(1) He is under 18 years of age and has in
his possession any firearm of a size which may be concealed upon the person.
(2) He is under 21 years of age, has been convicted of a misdemeanor
other than a traffic offense or adjudged delinquent and has any firearms or
firearm ammunition in his possession; or
(3) He has been convicted of
a felony under the laws of this or any other jurisdiction within 5 years from
release from the penitentiary or within 5 years of conviction if penitentiary
sentence has not been imposed, and has any firearms or firearm ammunition in
his possession; or
(4) He is a narcotic addict and has any firearms or
firearm ammunition in his possession; or
(5) He has been a patient in
a mental hospital within the past 5 years and has any firearms or firearm
ammunition in his possession; or
(6) He is mentally retarded and has
any firearms or firearm ammunition in his possession; or
* *
*"
[**30]
n3 Ill. Rev. Stat. ch. 38,
§ 24-1(a) (10) recites:
"Unlawful Use of Weapons. (a) A person commits the offense of
unlawful use of weapons when he knowingly:
* * *
(10) Carries
or possesses on or about his person, upon any public street, alley, or other
public lands within the corporate limits of a city, village or incorporated
town, except when an invitee thereon or therein, for the purpose of the
display of such weapon or the lawful commerce in weapons, or except when on
his land or in his own abode or fixed place of business, any pistol, revolver,
stun gun or taser or other firearm."
n4 Ill. Rev.
Stat. ch. 38, § 24-1(a) (4) states:
"§ 24-1. Unlawful Use of Weapons. (a) A person commits the offense
of unlawful use of weapons when he knowingly:
* * *
(4)
Carries or possesses in any vehicle or concealed on or about his person except
when on his land or in his own abode or fixed place of business any pistol,
revolver, stun gun or taser or other firearm; or
* *
*"
n5 Ill. Rev. Stat. ch. 38, § 24-1(a) (8)
states:
"§ 24.1. Unlawful Use of Weapons. (a) A person commits the offense
of unlawful use of weapons when he knowingly:
* * *
(8)
Carries or possesses any firearm, stun gun or taser or other deadly weapon in
any place which is licensed to sell intoxicating beverages, or at any public
gathering held pursuant to a license issued by any governmental body or any
public gathering at which an admission is charged, excluding a place where a
showing, demonstration or lecture involving the exhibition of unloaded
firearms is conducted; or
* * *"
[**31]
n6 Ill. Rev. Stat. ch. 38, § 24-1(a) (7)
provides:
"§ 24-1. Unlawful Use of Weapons. (a) A person commits the offense
of unlawful use of weapons when he knowingly:
* * *
(7) Sells,
manufactures, purchases, possesses or carries any weapon from which 8 or more
shots or bullets may be discharged by a single function of the firing device,
any shotgun having one or more barrels less than 18 inches in length,
sometimes called a sawed-off shotgun, or any weapon made from a shotgun
whether by alteration, modification or otherwise, if such weapon, as modified
or altered, has an overall length of less than 26 inches, or a barrel length
of less than 18 inches or any bomb, bombshell, grenade, bottle or other
container containing an explosive substance of over one-quarter ounce for like
purposes, such as, but not limited to, black powder bombs and Molotov
cocktails or artillery projectiles; or
* * *"
- -
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As recognized by the majority, consideration was given to the issue of
firearm possession at Illinois' Sixth Constitutional Convention.
[*274] It is clear from a review of the transcript
[**32] of the debates that it was the state's police power
vis-a-vis firearm possession which was the subject of debate. It was noted that
Article I, section 22 of the 1970 Illinois Constitution allows the state
legislature considerable discretion in the regulation and prohibition of firearm
use and possession. It is pursuant to this authority that the State of Illinois
enacted and enforces the extensive provisions of chapter 38. Where the
legislature after due deliberation has seen fit to outlaw the possession of
handguns it has done so. The statutes discussed above constitute the Illinois
Legislature's comprehensive promulgation of mandates concerning the issue of gun
possession which: (1) prohibits minors, felons, drug addicts and mentally ill
and retarded persons from possessing any firearms; (2) proscribes firearm
possession on public streets and alleys and in public places; (3) forbids the
carrying of a concealed weapon under certain circumstances; (4) prohibits
possession of a firearm in a place licensed to sell alcoholic beverages; (5)
prohibits without exclusion the possession of a machine gun or a sawed-off
shotgun; and (6) expressly authorizes possession of a handgun within
[**33] the confines of one's home or fixed place of business.
A locality such as Morton Grove may address a matter of public concern,
such as handgun prohibition, only if the Illinois Legislature has not revealed,
either expressly or by implication, an intention to occupy the field to the
exclusion of all local legislation. The subject of the prohibition of firearm
possession has been so extensively and comprehensively addressed in the Illinois
Statutes as to impliedly indicate a positive legislative intent to exclusively
occupy the field. Therefore, Illinois municipalities are precluded from enacting
provisions prohibiting handgun possession.
Further support for the
proposition that the Illinois Legislature intended to peremptorily address the
issue of the prohibition of handguns and firearms is found when comparing Ill.
Rev. Stat. ch. 38, § 24 (addressed above) with Ill. Rev. Stat. ch. 38, §§ 83.
Section 24, known as the "Deadly Weapons Act," sets forth the qualifications for
the lawful ownership and possession of firearms while section 83 directs owners
of firearms to obtain "Firearm Owner's Identification Cards" issued by the
Illinois Department of Law Enforcement. Section 83 [**34] contains a
proviso authorizing municipalities to impose greater restrictions or
limitations on firearm registration and possession than those imposed by
the legislature under section 83. n7
- - - - - - - - - - - - - -
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n7 Ill. Rev. Stat.
ch. 38, § 83-13.1 recites:
"Municipal Ordinance Imposing Greater Restrictions or
Limitations
The provisions of any ordinance enacted by any
municipality which requires registration or imposes greater restrictions or
limitations on the acquisition, possession and transfer of firearms than are
imposed by this Act, are not invalidated or affected by this
Act."
- - - - - - - - - - - - - - - - -End Footnotes- - -
- - - - - - - - - - - - - -
Pursuant to section 83, a municipality can
enact an ordinance reasonably restricting or confining the use and possession of
firearms. A municipality can also require registration of firearm ownership.
What the legislature has authorized is limited regulation of firearm possession
by local units of government, but not prohibition. Section 83 does not allow a
municipality such as Morton Grove to categorically prohibit handgun possession.
[**35] To limit or restrict involves a circumscription which falls
far short of an absolute prohibition.
"The words 'prohibit' and 'restrict' are not synonymous. They
are not alike in their meaning in their ordinary use . . . . 'To restrict is
to restrain within bounds; to limit; to confine and does not mean to destroy
or prohibit.'"
Forest Land Co. v. Black,
216 S.C. 255, 57 S.E.2d 420, 424 (1950).
If the intention of the
Illinois Legislature had been to authorize local prohibition of handgun
possession, such intention would have been clearly expressed as was the
authorization of local regulation through restriction and limitation. As
"regulation is inconsistent with prohibition or exclusion," the proviso to
section 83 does not minimize the implied intention of the legislature to
[*275] exclusively address the issue of handgun possession under
section 24. See Chicago Motor Coach Co. v. City
of Chicago, 337 Ill. 200, 169 N.E. 22, 25 (1929).
The Illinois
Legislature, by enacting and amending the extensive provisions of chapter 38,
has prohibited certain individuals from possessing firearms, forbidden
possession of specific [**36] types of firearms and proscribed the
possession of firearms in certain places. Despite the Illinois Legislature's
refusal to prohibit handgun possession, Morton Grove has seen fit to disregard
the legislative intent and has enacted a categorical ban on the possession of
handguns, with limited exceptions. In light of long-standing and extensive state
control of firearm ownership and possession, Morton Grove Ordinance No. 81-11
impermissibly addresses a subject matter designated by the Illinois Legislature
to be the exclusive province of the state legislature.
II.
The
powers of Illinois home rule units are not without limitation. The Illinois
Constitution provides that a home rule unit, such as Morton Grove, may "exercise
any power and perform any function pertaining to its government and affairs. . .
." Ill. Const. Art. VII, § 6(a). However, any exercise of home rule power by a
municipality must be "concurrent" with state legislation in the area. Ill.
Const. Art. VII, § 6(i). Morton Grove's Ordinance No. 81-11 is invalid under the
Illinois Constitution because the matter of handgun prohibition is not one
solely pertaining to local government or local affairs and furthermore,
[**37] the ordinance is repugnant to and is not concurrent with
related state legislation.
Although the powers of home rule units are to
be liberally construed, Illinois courts have invalidated ordinances which
affected persons and governmental bodies outside the home rule unit. See
Landry v. Smith, 66 Ill.App.3d 616, 384 N.E.2d 430, 433, 23 Ill.
Dec. 636 (1978). Such a limitation on home rule authority was recognized by the
Illinois Supreme Court in the Ampersand decision noted above.
"The question is not whether the 'pertaining to . . . '
language should limit the home rule grant, but rather how extensive the
limitation should be.
The local government committee, explaining the
intended extent of this limitation, stated in its report to the constitutional
convention 'it is clear, however, that the powers of home rule units
relate to their own problems, not to those of the state or the nation.'"
Ampersand, 338 N.E.2d at 17 (emphasis
added).
In its City of Des Plaines v. Chicago & N.W. Ry.
Co., 65 Ill. 2d 1, 2 Ill. Dec. 266, 357 N.E.2d 433 (1976) decision, the
Illinois Supreme Court struck down a municipal [**38] noise
pollution ordinance holding that it was legislation in an area which did not
pertain to the government and affairs of the home rule unit. The City of Des
Plaines court noted that although "noise pollution may initially appear to
be a matter of local concern, an analysis of the problem reveals that noise
pollution is a matter requiring regional, if not statewide, standards and
controls." Id. 357 N.E.2d at 433. Of particular import to the City
of Des Plaines court was "the question of noise emission from trains in
transit which may pass through numerous municipalities en route to their
destination." Id. at 435.
Practical considerations regarding
the Morton Grove Ordinance show why handgun possession is properly a matter of
statewide concern. Like the ordinance invalidated in City of Des
Plaines, the Morton Grove Ordinance applies not only to residents of the
Village, but also is applicable to non-residents traveling through the Village.
n8 The Ordinance is obviously designed to prohibit, with limited exceptions,
possession of all handguns in Morton Grove whether by residents, non-residents,
travelers, etc.
- - - - - - - - - - - - - - - - - -Footnotes- - -
- - - - - - - - - - - - - - -
n8 Ordinance No. 81-11 § 2(B) recites:
"No person shall possess, in the Village of Morton Grove the
following:
* * *
(3) Any handgun, unless the same has been
rendered permanently inoperative."
- - - - - - - - - - -
- - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**39]
[*276] Under the Morton Grove Ordinance, a handgun owner
must either take a circuitous route around the Village of Morton Grove or make
arrangements to surrender his handgun to the police upon entering the Village
and reacquire possession when he leaves. n9 Not only does this infringe upon the
citizen's right to travel and, arguably, interfere with interstate commerce but
it lends credence to the distinct possibility that gun control in Illinois will
be no more than a crazy quilt of conflicting and unenforceable home rule
ordinances. In this respect, it is important to remember that "a concomitant
effect of this unenforceability is an erosive disrespect for the law which
should not be tolerated." n10 Experience has taught mankind that the retention
of unenforceable laws which are regularly violated breeds contempt for the law
in general. Citizens must not be permitted to pick and choose which laws they
wish to obey.
- - - - - - - - - - - - - - - - - -Footnotes- - - -
- - - - - - - - - - - - - -
n9 Illinois law permits a handgun owner to
transport a handgun by car if the handgun is not immediately accessible to the
driver or any other occupant of the vehicle. See Ill. Rev. Stat. ch.
38, §§ 24-1(a) (4) and 24(2) (b) (4). [**40]
n10 People
v. Abrahams, 40 N.Y.2d 277, 286, 353 N.E.2d 574, 386 N.Y.S.2d 661 (1976).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - -
- - - - - - -
The majority opinion fails to recognize that the subject
of handgun possession poses problems that transcend municipal boundaries and is
thus not a local affair within the meaning of the Illinois Constitution. The
majority flatly and cavalierly states that Illinois has "no overriding state
interest in gun control which requires it to retain exclusive control in order
to prevent home rule units from adopting conflicting enactments." To support
this proposition, the majority relies without discussion on City of Evanston
v. Create, Inc., 85 Ill.2d 101, 421 N.E.2d 196, 51 Ill. Dec. 688 (1981).
The Create decision, however, is inapposite to the instant
case. In Create, the Illinois Supreme Court held that an Evanston
landlord-tenant ordinance was a valid exercise of Evanston's home rule powers
granted by the Illinois Constitution. Landlord-tenant ordinances are, by their
very nature, matters of local concern since, like zoning ordinances, they apply
exclusively to [**41] local residents and landowners. Such
ordinances are enacted to be specifically suited to the unique needs of a
locality's residents. The local governing body involved is keenly and uniquely
aware of the needs of the community it serves. The landlord-tenant ordinance in
Create had no impact on temporary or transitory visitors to Evanston.
On the other hand, the Morton Grove handgun ordinance has a far broader scope in
that it effects not only Morton Grove residents but also those citizens who
merely pass through the Village.
That the prohibition of handgun
possession is properly a matter of state concern can be further illustrated as
follows: consider the political and administrative difficulties which would
arise if Home-Rule Unit A were to pass an ordinance banning the possession of
all handguns and Home-Rule Unit B were to pass an ordinance making handgun
possession mandatory. What is outlawed in one municipality becomes mandatory in
another. The Illinois Legislature never intended to permit the possibility of a
hodgepodge of conflicting home rule enactments when it adopted Ill. Rev. Stat.
ch. 38 to address the statewide issue of the prohibition of handgun ownership.
[**42]
An analogy between the subject of gun control and the
field of children's health care further highlights the propriety of statewide
uniformity and enforcement. Due to difficulties in enforcement and the need for
statewide uniformity, many states have passed legislation requiring the
immunization of school age children against contagious diseases. See,
e.g., Ill. Rev. Stat. ch. 111 1/2 §§ 22.11 and 22.12. If local authorities
were allowed to pass conflicting ordinances regarding the vaccination of school
age children, the enforcement of these ordinances in multi-municipal school
districts would be extremely difficult, if not impossible.
The Illinois
Legislature has not enacted a categorical prohibition of handgun possession,
[*277] even though it was the view of the framers of the Illinois
Constitution that firearm possession was a matter of statewide concern and that
the state legislature had the power to ban handgun possession, if it so desired.
In the debates at the Sixth Illinois Constitutional convention which adopted the
present Illinois Constitution, Delegate Foster, speaking for the majority
explained:
"We feel that . . . the state would have the right
[**43] to prohibit some classes of firearms, such as war weapons,
handguns, or some other category.
* * *
It is the position of the
majority that under the police power of the state, the legislature would have
the authority, for example, to forbid all handguns . . . [and] it is still the
position of the majority that short of an absolute and complete ban on the
possession of all firearms, this provision would leave the legislature free to
regulate the use of firearms in Illinois."
3
Proceedings of Sixth Illinois Constitutional Convention at 1688, 1818 and 1718.
Delegate Foster's comments demonstrate that it was recognized by the
Convention that firearm possession is a matter of state concern. Despite the
clear meaning of Foster's words, the majority in the instant case concludes,
based on the Delegate's remarks, that the framers of the Illinois Constitution
"envisioned that local governments might exercise their police power to
restrict, or prohibit, the right to keep and bear arms." (emphasis added). The
fallacy of the majority's logic is obvious; Delegate Foster said that "the
state would have the right to prohibit . . . handguns" and "that under
the police [**44] power of the state, the legislature would
have the authority, for example, to forbid all handguns. . . ." (emphasis
added). In fact, Foster's remarks directly contradict, rather than support, the
majority's conclusion that a local municipality such as Morton Grove may
prohibit handgun possession; clearly, Foster's view was that handgun possession
was a matter of statewide concern best addressed by state legislation.
The Morton Grove Ordinance prohibiting handgun possession is invalid
because it does not act concurrently with the Illinois Legislature's extensive
regulation of firearm registration and possession. Black's Law Dictionary
defines "concurrent" as "united in agreement." BLACK'S LAW DICTIONARY 263 (5th
Ed. 1979). Morton Grove's prohibition of handgun possession is not "united in
agreement" with the state statutory scheme but is fundamentally at odds with the
extensive state regulation of handgun possession. The state legislation is
regulatory while Morton Grove's enactment is prohibitory.
The state
legislature and the Morton Grove Ordinance approach the subject of gun control
from opposite directions. The legislature started from the point that all
persons may [**45] possess handguns and then proceeded to regulate
and restrict specific types of guns, rather than banning handguns and then
authorizing certain persons or classes to possess them. This reveals an implied
intent to extend to all citizens a privilege to possess handguns except where,
by operation of state law, that privilege is circumscribed in the
interests of the common good. Morton Grove, in contrast, takes the opposite
approach by prohibiting all handguns and then grants permission to possess
handguns to limited classes of persons. Thus, the Morton Grove Ordinance is
invalid as it is fundamentally at odds with the legislature's will to allow
Illinois citizens to possess handguns, except in very limited circumstances,
because "the test of concurrent authority . . . is the absence of conflict with
the legislative will." Maryland & District of Columbia Rifle &
Pistol Ass'n., Inc. v. Washington, 142 U.S. App. D.C. 375, 442 F.2d 123,
130 (D.C. Cir. 1971).
The second reason Morton Grove's Ordinance does
not operate concurrently with state law is even more significant. The ordinance
is invalid to the extent that it prohibits what is expressly permitted by state
[**46] statute. "To be sure, a municipal regulation cannot permit an
act which the statute forbids, or forbid an act which the statute permits."
Id.
[*278] A number of sections of chapter 38 of
the Illinois Statutes contain exceptions to the general provisions which ban the
possession of handguns under certain circumstances. Of particular significance
are those statutory sections which expressly allow for the possession of
handguns by individuals when in their homes, in their fixed places of business
or upon their land. n11 The Illinois Legislature has expressly authorized the
citizens of Illinois to carry handguns while present in certain locations. Such
authorization is directly nullified by Morton Grove Ordinance No. 81-11.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - -
- - - - - - -
n11 See, e.g., Ill. Rev. Stat. ch. 38, §§ 24-1(a)
(4), (10).
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- - - - - - - - - - - - -
A municipal ordinance providing for the
registration of firearms was attacked in Brown v. City of Chicago, 42
Ill.2d 501, 250 N.E.2d 129 (1969). Although the Illinois Supreme Court noted
that the [**47] legislature had not preempted the registration
aspect of the subject of gun control, the court did note that the ordinance
would be struck down if it contradicted the provisions of the statute. The
registration ordinance was upheld because there was "no inconsistency or
repugnancy" between it and statutory provisions relating to firearm ownership
registration. Id. at 250 N.E.2d 129. There can be no doubt as to the
repugnancy of Morton Grove Ordinance No. 81-11 as it directly contradicts an
authorization recited in the state statutes. Additionally, the ordinance is
inconsistent with the state regulatory scheme as prohibition is inconsistent
with regulation. I would find no problem with Morton Grove requiring handgun
registration similar to that involved in Brown. Registration and
prohibition, by their very nature, seek to achieve different goals. Regulation
through registration allows possession subject to reasonable limits while
prohibition mandates an outright ban on possession.
As Morton Grove has
impermissibly acted under its home rule powers vis-a-vis Ordinance No. 81-11, it
is the obligation of this court to strike down the municipal enactment. Clearly,
[**48] the creation of a uniform regulatory scheme
concerning the possession of handguns is a matter of statewide, or even federal
concern, which should not be disrupted by permitting this type of contradictory
local action.
III.
I find today's decision particularly
disturbing as it sanctions governmental action which I feel impermissibly
interferes with basic human freedoms. I cannot let this opportunity pass without
expressing my concern with the erosion of these rights.
The majority
cavalierly dismisses the argument that the right to possess commonly owned arms
for self-defense and the protection of loved ones is a fundamental right
protected by the Constitution. Justice Cardozo in Palko v. Connecticut,
302 U.S. 319, 325, 82 L. Ed. 288, 58 S. Ct. 149 (1937), defined fundamental
rights as those rights "implicit in the concept of ordered liberty." Surely
nothing could be more fundamental to the "concept of ordered liberty"
than the basic right of an individual, within the confines of the criminal law,
to protect his home and family from unlawful and dangerous intrusions.
Article I, section 22 of the Illinois Constitution provides that subject
to the "police [**49] power," the right of an individual to bear
arms shall not be infringed. The United States Supreme Court has noted the
difficulty in attempting to outline the parameters of a state's legitimate
police power. In Berman v. Parker, 348 U.S. 26, 99 L. Ed. 27, 75 S. Ct.
98 (1954), addressing the concept of "police power," the Supreme Court stated
that "an attempt to define its reach or trace its outer limits is fruitless, for
each case must turn on its own facts." Id. at 33. The term is neither
"abstractly nor historically capable of complete definition." Id. In
enacting Ordinance No. 81-11, Morton Grove has gone beyond the "outer limits" of
its legitimate police powers.
In Haller Sign Works v. Physical
Culture Training School, 249 Ill. 436, 94 N.E. 920 (1911), the Illinois
Supreme Court recognized that it is the responsibility of the [*279]
courts to determine when constitutional limits have been exceeded in the
enactment of police power legislation. It is the duty of the courts to determine
whether there has been an "unreasonable invasion of private rights."
Id. at 922.
"Necessarily there are limits beyond [**50] which
legislation cannot constitutionally go in depriving individuals of their
natural rights and liberties. To determine where the rights of the individual
end and those of the public begin is a question which must be determined by
the court."
Id. 94 N.E. at 927.
In
today's decision this court has refused to take cognizance of the natural right
of an individual, within the confines of the criminal law, to protect his home
and family from unlawful and dangerous intrusions. It is my opinion that Morton
Grove Ordinance No. 81-11 impermissibly interferes with the rights of Illinois
citizens to guard their personal security, subject to the limits of the criminal
law, and that it is the duty of this court to so declare.
The court
today has also refused to recognize the tremendous impact of Morton Grove
Ordinance No. 81-11 on personal privacy rights. There is no doubt that the right
to one's privacy is afforded constitutional protection. The United States
Supreme Court has repeatedly recognized a right to privacy implicit in the
federal constitution and Article I, section 6, of the Illinois Constitution
expressly establishes a right to privacy. The Illinois [**51]
provision has been interpreted by some members of the Illinois Supreme Court as
creating a direct right to freedom from invasions of privacy by government or
public officials. See Stein v. Howlett, 52 Ill.2d 570, 289
N.E.2d 409, 411, appeal dismissed, 412 U.S. 925, 37 L. Ed. 2d 152, 93
S. Ct. 2750 (1973).
The Morton Grove Ordinance, by prohibiting the
possession of a handgun within the confines of the home, violates both the
fundamental right to privacy and the fundamental right to defend the home
against unlawful intrusion within the parameters of the criminal law. There is
no area of human activity more protected by the right to privacy than the right
to be free from unnecessary government intrusion in the confines of the home.
The unique importance of the home from time immemorial has been amply
demonstrated in our constitutional jurisprudence. Among the enumerated rights in
the Bill of Rights are the Third Amendment's prohibition of quartering of troops
in a private house in peace-time and the right of citizens to be "secure in
their . . . houses . . . against unreasonable searches and seizures . . ."
guaranteed by the Fourth Amendment. [**52] As early as 1886, the
United States Supreme Court recognized that the Fifth Amendment protects against
all governmental invasions "of the sanctity of a man's home and the privacies of
life." Boyd v. United States, 116 U.S. 616, 630, 29 L. Ed. 746, 6 S.
Ct. 524 (1886). The First Amendment had been held to encompass the right to
"privacy and freedom of association in the home." Moreno v. United States
Dep't of Agriculture, 345 F. Supp. 310, 314 (D.D.C. 1972), aff'd,
413 U.S. 528, 37 L. Ed. 2d 782, 93 S. Ct. 2821 (1973).
In Stanley v.
Georgia, 394 U.S. 557, 22 L. Ed. 2d 542, 89 S. Ct. 1243 (1969), the Supreme
Court overturned a state conviction for possession of obscene material, holding
"that the First and Fourteenth Amendments prohibit making the private possession
of obscene material a crime." The Supreme Court had previously held that
obscenity is not protected by the First Amendment, but in Stanley the
Court made a distinction between commercial distribution of obscene matter and
the private possession of such materials in the home and held the Georgia
statute unconstitutional because it prohibited the [**53] possession
of such materials in the home. The Court recited:
"For also fundamental is the right to be free, except in very
limited circumstances, from unwanted governmental intrusions into one's
privacy."
Id. at 564. n12
- -
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n12 I am aware of Justice Marshall's comments contained in footnote No.
11 of the Stanley decision. I believe however, as noted herein, that
subsequent decisions of the Court have divested the footnote of any significance
vis-a-vis this court's review of Morton Grove Ordinance No. 81-11.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - -
- -
The Court has made it clear that its Stanley decision was
not based on the idea that [*280] obscene matter is itself protected
under the right of privacy. Rather, the focus in Stanley was on the
fact that the activity prohibited by the Georgia statute occurred in the privacy
of the home. In United States v. Reidel, 402 U.S. 351, 356, 28 L. Ed.
2d 813, 91 S. Ct. 1410 (1971), the Court rejected the argument that commercial
distribution [**54] of pornography is constitutionally protected and
held that the "focus" of Stanley was "on freedom of mind and thought
and on the privacy of one's home." Subsequently, the Court in United States
v. Orito, 413 U.S. 139, 142, 37 L. Ed. 2d 513, 93 S. Ct. 2674 (1973) stated
"the Constitution extends special safeguards to the privacy of the home" and
there exists a " myriad" of activities which may be prohibited in public but
which may be lawfully conducted within the privacy and confines of the home.
Most importantly, the Supreme Court in Paris Adult Theatre I v.
Slaton, 413 U.S. 49, 66, 37 L. Ed. 2d 446, 93 S. Ct. 2628 (1973), held that
Stanley was decided "on the narrow basis of the 'privacy of the home'
which was hardly more than a reaffirmation that "a man's home is his
castle.'" (emphasis added).
Privacy in the home is a fundamental
right under both the federal and Illinois Constitutions. This does not mean, of
course, that a person may do anything at anytime as long as the activity takes
place within a person's home. Instead, the right to privacy is limited in two
important respects. First, the Supreme Court strictly limited its
[**55] Stanley holding to possession for purely private,
noncommercial use in the home. Second, as noted in Stanley, the right
to privacy must yield when it seriously interferes with the public welfare. The
government bears a heavy burden when attempting to justify an expansion, as in
gun control, of the "limited circumstances" in which intrusion into the privacy
of a home is permitted.
Morton Grove has not met that heavy burden.
Without question, the state may, should and has placed reasonable restrictions
on the possession of handguns outside one's home to protect the public welfare.
However, Morton Grove's prohibition of handgun possession within the confines of
a person's own home has not been shown to be necessary to protect the public
welfare and thus violates the fundamental right to privacy.
The right to
privacy is one of the most cherished rights an American citizen has; the right
to privacy sets America apart from totalitarian states in which the interests of
the state prevail over individual rights. A fundamental part of our concept of
ordered liberty is the right to protect one's home and family against dangerous
intrusions subject to the criminal law. Morton [**56] Grove, acting
like the omniscient and paternalistic "Big Brother" in George Orwell's novel,
"1984", cannot, in the name of public welfare, dictate to its residents that
they may not possess a handgun in the privacy of their home. To so prohibit the
possession of handguns in the privacy of the home prevents a person from
protecting his home and family, endangers law-abiding citizens and renders
meaningless the Supreme Court's teaching that "a man's home is his castle."
IV.
In summary, I believe a truly independent judiciary must
exercise its powers with discretion and reservation, giving due deference to the
other branches of government. Our judicial responsibility, however, obligates us
to declare an act by another governmental unit to be void if we believe the
enacted law is contrary to the principles of the Constitution. Because I believe
that the Morton Grove Ordinance as enacted is contrary to the principles of the
Constitution, I must respectfully dissent from the opinion of this court.