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[Cite as Quilici v. Village of Morton Grove,
695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983).]
Victor D. QUILICI, Robert Stengl, et al., George L. Reichert, and Robert E.
Metler v. VILLAGE OF MORTON GROVE, et al.
Nos. 82-1045, 82-1076 and 82-1132.
United States Court of Appeals, Seventh Circuit.
Argued May 28, 1982.
Decided Dec. 6, 1982.
Amended Dec. 10, 1982.
Rehearing and Rehearing En Banc Denied March 2,
Victor D. Quilici, Bennsonville, Ill., Don B.
Kates, Jr., O'Brien & Hallisey, San Francisco, Cal., Richard V. Houpt,
Pedersen & Houpt, Donald J. Moran, Chicago, Ill., for
Eugene R. Wedoff, Jenner & Block, Chicago,
Ill., for defendants-appellees.
Before BAUER, WOOD, and COFFEY, Circuit Judges.
BAUER, Circuit Judge.
This appeal concerns the constitutionality of the Village of Morton
Grove's Ordinance No. 81-11,[1.1]
which prohibits the possession of handguns within the Village's borders. (p.264)The district court held that the Ordinance was
constitutional. We affirm.
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 No. 81-11 violated article I,
section 22 of the Illinois Constitution and the second,
ninth and fourteenth amendments of the (p.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
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 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, 6 S.Ct.
580, 29 L.Ed. 615 (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
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, ____ U.S. ____, 102 S.Ct. 2690, 73 L.Ed.2d 349
(1982). With these principles in mind we address appellants'
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
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 (p.266)provisions should prevail over conflicting statutory
provisions, appellants 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 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 No. 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.[1.3] Client Follow-Up Co. v. Hynes, 75
Ill.2d 208, 216, 28 Ill.Dec. 488, 390 N.E.2d 847, 850 (1979), citing Wolfson v. Avery, 6 Ill.2d 78, 126 N.E.2d 701
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 employ[ed]" 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 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, (p.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 "[t]he 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 22 recognizes only a
narrow individual right which is subject to substantial legislative control. It
noted that "[t]o 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 factorss
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 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.[1.5] It
is difficult to imagine clearer evidence that section 22 was intended to permit
a municipality to ban handguns if it so desired.
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[1.6] is
based (p.268)on 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, 18
Ill.Dec. 502, 377 N.E.2d 1138 (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,
Intergovernmental Cooperation and the Municipal Insurance Crisis, 30
DePaul L.Rev. 325, 326-29 (1981); 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,
51 Ill.Dec. 688, 421 N.E.2d 196 (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, 32 Ill.Dec. 377, 395
N.E.2d 607 (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.
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
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, 51 Ill.Dec. 688,
421 N.E.2d 196 (1981). 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, 18 Ill.Dec. 502, 377 N.E.2d 1138 (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, 27
Ill.Dec. 465, 389 N.E.2d 529 (1979); People v.
Copeland, 92 Ill.App.3d 475, 47 Ill.Dec. 860, 415 N.E.2d 1173 (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, 46 Ill.Dec. 678, 414 N.E.2d 731 (1980). As
the district court noted, there is at least (p.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, 47 Ill.Dec. 860, 415 N.E.2d 1173 (1st Dist.1980).
Accordingly, we decline to consider plaintiffs' arguments that Ordinance No. 81-11 will not make Morton Grove a safer, more
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
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, 6 S.Ct.
580, 29 L.Ed. 615 (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 "[p]laintiffs ... 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, 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 "[t]he 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, 6 S.Ct. 580, 584,
29 L.Ed. 615 (1886). As the district 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 (p.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 been decided differently
today. Indeed, the fact that the Supreme Court continues to cite Presser,
Malloy v. Hogan, 378 U.S. 1, 4 n.2, 84 S.Ct. 1489, 1491 n.
2, 12 L.Ed.2d 653 (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, 67 S.Ct. 1672, 91 L.Ed. 1903 (1947), overruled
on other grounds, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct.
1489, 12 L.Ed.2d 653 (1964); Palko v.
Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937); Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97
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 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, 59 S.Ct. 816, 83
L.Ed. 1206 (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
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 "[t]he fact that the right to keep and bear arms is 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.[1.8]
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.[1.9](p.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
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 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.[1.10]
Reasonable people may differ about the wisdom of
Ordinance No. 81-11. History may prove that 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
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 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 longstanding 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 (p.272)with individual
privacy rights. I 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.
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 longstanding regulation, has preempted the
subject of handgun possession.
Although most frequently addressed in the context of federal 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 county. 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 utility rates precludes this subject from being considered a
matter pertaining to home-rule government and affairs.'"
Id. 338 N.E.2d at 17
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, 60 Ill.Dec. 532, 536, 433 N.E.2d 329, 333
(1982).[2.1] The Hutchcraft court held that "the legislature has
preempted the subject of freedom from unlawful discrimination." Id. 60 Ill.Dec. at 537, 433 N.E.2d 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.
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 (p.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.[2.2]
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[2.3] and the carrying of a concealed handgun under certain
circumstances is proscribed by Ill.Rev.Stat. ch. 38, §
24-1(a)(4).[2.4] Additionally, it is a violation of state law to possess a
firearm in an establishment licensed to sell liquor, wine or beer.[2.5]
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
As recognized by the majority, consideration was given to the issue
of firearm possession at Illinois' Sixth Constitutional Convention. (p.274)It is clear from a review of the transcript 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 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 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.[2.7]
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.
To limit or restrict involves a circumscription which falls far short of an
"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 "[r]egulation is inconsistent with prohibition or exclusion," the
proviso to section 83 does not minimize the implied intention of the legislature
to (p.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
The Illinois Legislature, by enacting and amending the extensive
provisions of chapter 38, has prohibited certain individuals from possessing
firearms, forbidden possession of specific 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
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, 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, 23 Ill.Dec. 636, 639, 384
N.E.2d 430, 433 (1978). Such a limitation on home rule authority was
recognized by the Illinois Supreme Court in the Ampersand decision noted
"[T]he 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 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. 2 Ill.Dec. at 266, 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. 2 Ill.Dec. at 268, 357
N.E.2d 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.[2.8] The
Ordinance is obviously designed to prohibit, with limited exceptions, possession
of all handguns in Morton Grove whether by residents, non-residents, travelers,
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.[2.9] 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."[2.10]
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.
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, 51 Ill.Dec. 688, 421 N.E.2d 196
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 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
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.
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
The Illinois Legislature has not enacted a categorical prohibition
of handgun possession, (p.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
to prohibit some classes of firearms, such as war weapons, handguns, or some
[I]t 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 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, Delegate 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
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 possess handguns and then proceed 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 & D.C. Rifle & Pistol
Ass'n., Inc. v. Washington, 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 statute.
"To be sure, a municipal regulation cannot permit an act which the state
forbids, or forbid an act which the statute permits." Id.(p.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.[2.11] 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.
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
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, 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.
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, 58 S.Ct. 149, 151, 82
L.Ed. 288 (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 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,
75 S.Ct. 98, 99 L.Ed. 27 (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, 75 S.Ct. at 102. 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 (p.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. 94 N.E. at 922.
"Necessarily there are limits beyond 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
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 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, 93 S.Ct. 2750, 37 L.Ed.2d 152
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. 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, 6 S.Ct. 524, 532, 29
L.Ed. 746 (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, 93 S.Ct. 2821,
37 L.Ed.2d 782 (1973).
In Stanley v. Georgia, 394 U.S. 557, 89 S.Ct.
1243, 22 L.Ed.2d 542 (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 possession of such materials in the home. The Court
"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, 89 S.Ct. at
The Court has made it clear that its Stanley decision was not
based on the idea that (p.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, 91 S.Ct. 1410, 1412, 28 L.Ed.2d 813 (1971), the Court
rejected the argument that commercial distribution 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, 93
S.Ct. 2674, 2677, 37 L.Ed.2d 513 (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, 93 S.Ct. 2628, 2639, 37 L.Ed.2d 446
(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 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 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."
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
[1.1] Ordinance No. 81-11, in pertinent
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
Now, Therefore, Be It Ordained By The President
And Board Of Trustees Of The Village Of Morton Grove, Cook County, Illinois,
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
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
singular globular projectile not exceeding .18 inches in diameter.
(2) Any device used exclusively for signaling or safety and
required or recommended by the United States Coast Guard or the Interstate
(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
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.
No person shall possess, in the Village of Morton Grove the
(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 all 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;
(3) Any handgun, unless the same has been rendered permanently
(C) Subsection B(1) shall not apply to or affect any peace
(D) Subsection B(2) shall not apply to or affect the
(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
(E) Subsection B(3) does not apply to or affect the
(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
(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
(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
(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.
[1.2] 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, 61 S.Ct. 643, 85 L.Ed. 971 (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 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, 61 S.Ct. 643, 85 L.Ed. 971 (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.
[1.3] 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.
[1.4] Reichert cites Client Follow-Up Co. v.
Hynes, 75 Ill.2d 208, 28 Ill.Dec. 488, 390 N.E.2d 847 (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,
[1.5] 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: "[i]t 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.
[1.6] Ill. Const. Art. VII, § 6(a)
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).
[1.7] 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
[1.8] 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.
[1.9] 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, 98 S.Ct. 1493, 55
L.Ed.2d 521 (1978); United States v. Warin,
530 F.2d 103 (6th
Cir.), cert. denied, 426 U.S. 948, 96 S.Ct. 3168, 49
L.Ed.2d 1185 (1976); Cody v. United States,
460 F.2d 34 (8th Cir.), cert. denied, 409 U.S. 1010, 93
S.Ct. 454, 34 L.Ed.2d 303 (1972); Stevens v.
United States, 440 F.2d 144 (6th Cir. 1971).
[1.10] 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.
[2.1] On October 5, 1982, the Illinois Supreme Court denied a
petition for leave to appeal the Hutchcraft decision,
Illinois Supreme Court Docket No. 56635.
[2.2] Ill.Rev.Stat. ch. 38, § 24-3.1
provides in pertinent part:
"24-3.1. Unlawful possession of firearms and firearm
(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
[2.3] Ill.Rev.Stat. ch. 38, § 24-1(a)(10)
"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."
[2.4] Ill.Rev.Stat. ch. 38, § 24-1(a)(4)
"§ 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
[2.5] Ill.Rev.Stat. ch. 38, § 24-1(a)(8)
"§ 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
[2.6] Ill.Rev.Stat. ch. 38, § 24-1(a)(7)
"§ 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
[2.7] Ill.Rev.Stat. ch. 38, § 83-13.1
"Municipal Ordinance Imposing Greater Restrictions or
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."
[2.8] Ordinance No. 81-11 § 2(B)
"No person shall possess, in the Village of Morton Grove the
(3) Any handgun, unless the same has been rendered permanently
[2.9] 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).
[2.10] Peoples v. Abrahams, 40 N.Y.2d 277, 286, 386
N.Y.S.2d 661, 353 N.E.2d 574 (1976).
[2.11] See, e.g., Ill.Rev.Stat. ch.
38, §§ 24-1(a)(4), (10).
[2.12] 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.