Petition — George L.Reichert and Robert E. Metler v. Village of Morton Grove, 695 F.2d 261 (1982) (No.82-1930)

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MAY $1 1963

No.

AlLrwAAne © 1 SIEVAS,

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

GEORGE L. REICHERT and RosBertT E. METLER.

Petitioners,

VILLAGE OF MORTON GROVE.

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE SEVENTH CIRCUIT

STEPHEN N. SHULMAN*

BARRY S. SPECTOR

CADWALADER, WICKERSHAM & TAFT

1333 New Hampshire Avenue, N.W.

Suite 700

Washington. D.C. 20036

(202 ) 293-6300

Counsel for Petitioners

Of Counsel:

MICHAEL K. MCCABE

RICHARD E. GARDINER

ROBERT DOWLUT

1600 Rhode Island Avenue, N.W.

Washington, D.C. 20036

*Counsel of record

QUESTIONS PRESENTED

1. Should the courts below have abstained from deciding

whether a village ordinance banning the possession of hand-

guns violated the Illinois and United States Constitutions when

the Illinois Supreme Court had never had the opportunity to

interpret the state constitution’s mght to arms provision and a

case involving the same village ordinance was pending before

the Illinois state courts?

2. Does the Second Amendment’s prohibition against

infringement of the right to keep and bear arms apply through

the Fourteenth Amendment to a village ordinance banning the

keeping of handguns in the home?

PARTIES

The parties in the Court of Appeals were Petitioners

George L. Reichert and Robert E. Metler, Victor D. Quilici,

Robert Stengl, Martin Gutenkauf, Alice Gutenkauf, Walter J.

Dutchak, Geoffrey LaGioia, and the Village of Morton Grove.

TABLE OF CONTENTS

Page

8 a ee ill

ee l

LE l

CONSTITUTIONAL PROVISIONS AND ORDI-

I drhasicoincidarycotnestintehetininniinersvenitoys 2

eS a | 2

REASONS FOR ALLOWING THE WRIT..........0......... 6

1. BY DECIDING A CONTROLLING, UNRE-

SOLVED QUESTION OF ILLINOIS CON-

STITUTIONAL LAW RATHER’- THAN

ABSTAINING, THE DISTRICT COURT AND

THE COURT OF APPEALS DEPARTED SO

FAR FROM THE ACCEPTED JUDICIAL

COURSE AS TO CALL FOR AN EXERCISE

OF THIS COURT’S POWER OF SUPER-

Tia chracllahniuiithngnebanticoutensenasitieceemwinonens 6

2. IN LIGHT OF THIS COURT’S MODERN DE-

CISIONS INCORPORATING ALL “FUNDA-

MENTAL RIGHTS” CONTAINED IN THE

BILL OF RIGHTS INTO THE FOURTEENTH

AMENDMENT’S DUE PROCESS CLAUSE,

THIS COURT SHOULD REVISIT ITS 97-

YEAR OLD PRECEDENT IN PRESSER V.

Py COO I. 2OE (PBIB) ween receiccersecceseseneses 10

3. THE COURT OF APPEALS SERIOUSLY MIS-

APPLIED UNITED STATES V. MILLER, 307

U.S. 174 (1939), THIS COURTS ONLY

SUBSTANTIVE DECISION UNDER THE

SECOND AMENDMENT, CALLING FOR AN

EXERCISE OF THE COURT’S POWER OF

acc tcdahettinddsesinrwncientaciaroviceriammenicniaiion 15

SE Te 18

ac ncclenciaveepeninsennnenintnreainatunreonieseonss la

ill

TABLE OF AUTHORITIES

CASES

Adamson v. California, 332 U.S. 46 (1947)... 13

Bellotti v. Baird, 428 U.S. 132 (1976) .......cccceceeeeeeeeees 8

Benton v. Maryland, 395 U.S. 784 (1969) ...........ccceeeee 13

Bowers v. DeVito, 686 F.2d 616 ( 7th Cir. 1982).......... 15

Breithaupt v. Abram, 352 U.S. 342 (1957) wu. 13

City of Las Vegas v. Moberg, 82 N.M. 626, 485 P.2d

Pipa Gh RY OER. f ) RAT on bere menue Ret ether anne 17

DeJonge v. Oregon, 299 U.S. 353 (1937) ....ceceeeeeeeees 12

Dimick v. Schiedt, 293 U.S. 474 (1935) woe 16

Duncan v. Louisiana, 391 U.S. 145 (1968) wo... 13

Elkins v. Moreno, 435 U.S. 647 (1978) .....cccccccseeeeeeeees 6

Engblom v. Carey, 677 F.2d 957 (2nd Cir. 1982)........ 13

Examining Board of Engineers, Architects and Sur-

veyors v. Flores De Otero, 426 U.S. 572 (1976)........ 7

Fiske v. Kansas, 274 U.S. 380 (1927) ................scescceees 12

Gideon v. Wainwright, 372 U.S. 335 (1963) ............. 13

Gitlow v. New York, 268 U.S. 652 (1925)... 12

Grosjean v. American Press Co., 297 U.S. 233

i _) RRR ERS REN Cea Sat ete lbaaee nut parse veel eo 12

Hamilton v. Regents of the University of California,

Re EE Oe icrchintectenlccrattninececiemnibaceedbess 12

Harrison v. NAACP, 360 U.S. 167 (1959) wees 8

Herndon v. Lowry, 301 U.S. 242 (1937) ....cccceeeeeeeeeees 12

Hunt v. Roth, 648 F.2d 1148 (8th Cir. 1981), vacated

as moot sub nom. Murphy v. Hunt, 455 U.S. 478

Bf SRD ct hk BE eR AON gt NY OURS ee 13

In Re Brickey, 8 Idaho 597, 70 P. 609 (1902) ........00... 17

Irvine v. California, 347 U.S. 128 (1954) ..... eee. 13

Kalodimos v. Village of Morton Grove, No. 82-282,

slip op. (App. Ct. Ill. Feb. 9, 1983) appeal filed,

ee eR __-_ 5 Ravnrpemeen enn mre 4,9

Klopfer v. North Carolina, 386 U.S. 213 (1967).......... 13

Mallock v. Eastley, 87 Eng. Rep. 1370 (K.B. 1744) .... 14

Malloy v. Hogan, 378 U.S. 1 (1964) 0.0... ccecceeceeeeeeeee 13,14

McGrain v. Daugherty, 273 U.S. 135 (1927) 0... 16

Be oC, BOT UB. GIF CUIGT ) occrccecsecetivcccecesessces

Maxwell v. Dow, 176 U.S. 581 (1900) ....... cece eeeeeeee

Meridian v. Southern Bell Telephone & Telegraph

ee tN I 0 STD seircpeatnnnniivennicvestiesenenereveeones

Midler v. Tatas, 153 US. SSD (LSPS) ..cccvccccescessnccscccseees

Near v. Minnesota, 283 U.S. 697 (1931 )......ccccccceeeeeeeee

Palko v. Connecticut, 302 U.S. 319 (1937)...

Patsone v. Pennsylvania, 232 U.S. 138 (1914).............

People v. Zerillo, 219 Mich. 635, 189 N.W. 927

IE Birth eren dba iniacasincdcltnach enanentioneaetasnenemneesnenbeniens

Pointer v. Texas, 380 U.S. 400 (1965) oo... cece eee ee

Powell v. Alabama, 287 U.S. 45 (1932) .....cceeecceeeeeeeee

Presser v. Illinois, 116 U.S. 252 (1886)...........ccc.ceeeeeee

Prudential Insurance Co. of America v. Cheek, 259

eas a caichcla dink ieeniticinelaemindiniacnennenseh

Quilici v. Village of Morton Grove, No. 81 C 3432

ee I I I a ienreneincncouinesinentareenonnnsunees

Quilici v. Village of Morton Grove, 532 F. Supp. 1169

eS NE Picts csintoncicadeanisadnonienepenntvreseiamehoontnenite

Quilici v. Village of Morton Grove, 695 F.2d 261 (7th

SN seid ih aitate nsitlicndsiobesconndlbacaneciiranpesinionesanincententes

Railroad Commission of Texas v. Pullman Co., 312

I A IT sci cccs cslsdsteiscteviandtenntaebeniedandvaipertd

Reetz v. Bozanich, 397 U.S. 82 (1970)...........eceeeeeeeeeees

Rex v. Dewhurst, | State Trials, New Ser. 529 (1820)

Rex v. Gardiner, 95 Eng. Rep. 386 (K.B. 1738)..........

Rex v. Gardner, 87 Eng. Rep. 1240 (K.B. 1739).........

pe Re Be BO)

Rex v. Knight, 87 Eng. Rep. 75, 90 Eng. Rep. 330

NI MMIITTE DF Ais sinscad.thesiecensemnennise heahaperibeineniecaneilsniineiuatcenibin

Rex v. Thompson, 100 Eng. Rep. 10 (K.B. 1787)........

Rinzler v. Carson, 262 So.2d 661 (Fla. 1972)..............

Riss v. City of New York, 22 N.Y.2d 579, 293

N.Y.S.2d 897, 240 N.E.2d 860 ( 1968)......... cece

Robinson v. California, 370 U.S. 660 (1962)...............

Schubert v. Debard, 398 N.E.2d 1339 (Ind.App.

| MRBEESSAR Es SDRC na Cee Wel eeNU ROSSER

Page(s)

passim

4,9

passim

7,10

State v. Kerner, 181 N.C. 574, 107 S.E. 222 (1921)... 17

State v. Kessler, 289 Or. 359, 614 P.2d 94 (1980)....... 17

State v. Nickerson, 126 Mont. 157, 247 P.2d 188

a scsmepintsbunienunioes 17

State v. Rosenthal, 75 Vt. 295,55 A. 610 (1903) ........ 17

Taylor v. McNeal, 523 S.W.2d 148 (Mo.App. 1975)... 17

Twining v. New Jersey, 211 U.S. 78 (1908 ).............002.. 12

United States v. Miller, 307 U.S. 174 (1939)... 15,16,17

Warren v. District of Columbia, 444 A.2d 1

a oi nghceeeatiehncsinnkeradnanied 15

Washington v. Texas, 388 U.S. 14 (1967) ...... 13

Weeks v. United States, 232 U.S. 383 (1914) oe. 12

Wolf v. Colorado, 338 U.S. 25 (1949) oo... eeeeeeeeeees 13

Wingfield v. Stratford, 96 Eng. Rep. 787 (K.B.

, erle HO CS SMES Nee 14

CONSTITUTIONS

a ee anstcinasteshconadieninunaninivnnn passim

I I oo ccnicaceueanudedeuvaneusiuecasuine passim

SD. a passim

STATUTES

I a cas susnniicadeisvinesiniaainiveseseonerie 15

ETE. y. )

eS oR De |) ae 4

es I ccs duncsewevnniiioransieaeuwavensens 3

Sa secedunisuwenioy 16

Ill. Rev. Stat. ch. 38, § 83-1 to 16.3 (1979)... 3

Morton Grove, Ill. Ordinance No. 81-11 (June 8,

Neen a ccodonminmasuniiniies passim

I The Colonial Laws of New York from 1664 to the

es cancealintunibuaeinueien 16

VI Documents Relating to Colonial History of N.J.

ee ES | > 2 a cn 16

III Laws of Virginia from the First Session of the

Legis. in 1619 (W. Hening ed. 1823)... 16

III The Public Records of the Colony of Conn. (C.

III Records of the Colony of R.I. & Providence

Plantations (J. Bartlett ed. 1856) .0......cc eee eee

ARTICLES

Cantrell, The Right to Keep and Bear Arms, 53 Wis.

I io aca cetchdeanlamienlessionmniins

Caplan, Handgun Control: Constitutional or Uncon-

stitutional?, 10 N.C. Central L.J. 53 (1978). 0.0.0.0...

Caplan, Restoring the Balance: The Second Amend-

ment Revisited, 5 Fordham Urban L.J. 31 (1976)...

Caplan, The Right of the Individual to Bear Arms: A

Recent Judicial Trend., 1982 Det. C.L. Rev. 789.....

Comment, The Right to Keep and Bear Arms: A

Necessary Constitutional Guarantee or an Out-

moded Provision of the Bill of Rights?, 31 Alb. L.

| _ : Eee Se

Gardiner, To Preserve Liberty—A Look at the Right

to Keep and Bear Arms, 10 N. Ky. L. Rev. 63

eal cid ccc aici ec oichacnapmiiniginnrmeisinsoicuneinneante

Halbrook, The Jurisprudence of the Second and

Fourteenth Amendments, 4 Geo. Mason U.L. Rev.

Ie Ditetndeiaticenentstcionncinicmmenavia te

Halbrook, To Keep and Bear Their Private Arms:

The Adoption of the Second Amendment, 1787-

Fg We ts tele Bes IW, BD CLG Pave cccesescececesvecoenee

Hardy & Stompoly, Of Arms and the Law, 51 Chi-

Rg 0: RE eee

Hays, The Right to Bear Arms: A Study in Judicial

Misinterpretation, 2 Wm. & Mary L. Rev. 381

SSE ee

Levine & Saxe, The Second Amendment: The Right

to Bear Arms, 7 Hous‘on L. Rev. 1 (1969) ..............

B. Levy, Guerrilla Warfare (Panther Publications

NER CERES Ee OAR eC

Malcolm, The Right of the People to Keep and Bear

Arms: The Common Law Tradition, 10 Hastings

ne sienneimnmnoroins

McClure, Firearms and Federulism, 7 Idaho L. Rev.

| Sab Rs, SEM ee

Page(s)

Vil

Olds, The Second Amendment and the Right to Keep

and Bear Arms, 46 Mich. St. B.J. 15 (1967) .....000...

Shalhope, The Ideological Origins of the Second

Amendment, 69 J. Am. Hist. 599 (1982) wo...

W.H.B. Smith, Small Arms of the World (\\th rev.

AE. z 5 YORRMNCIRNEaFe ee ae Briere wCaD SRM a Noa tak ee

Sprecher, The Lost Amendment, §\ A.B.A.J. 554 &

ee Or ee 0 BE secrete dcennitperecaennitennaies

Weiss, A Reply to Advocates of Gun Control Law, 52

es RH Ee EET 0 HII censiactckintiecouceemerissenimensndnnn

Whisker, Historical Development and Subsequent

Erosion of the Right to Keep and Bear Arms, 78

We Wl Bee BO FF 8- C UB UWE ceserrenenkoinenanenionsinnansecntanbiien

MISCELLANEOUS

Fes Ts MIE BIG seiceciceaiientntsurcemnapateniccrnnmcs

The Christian Science Monitor, Dec. 9, 1982.00.00...

The Washington Post, Mar. 1, 1982 .........cccccecseeeeseeees

Page(s)

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

No.

GEORGE L. REICHERT and ROBERT E. METLER,

Petitioners,

Vv.

VILLAGE OF MORTON GROVE,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE SEVENTH CIRCUIT

OPINIONS BELOW

The Memorandum Opinion and Order of the United States

District Court is reported at 532 F. Supp. 1169 (N.D. Ill. 1981).

The opinion of the United States Court of Appeals is reported

at 695 F.2d 261 (7th Cir. 1982). Both opinions are reproduced

in the Appendix.

JURISDICTION

The judgment sought to be reviewed was entered by the

United States Court of Appeals for the Seventh Circuit on

December 6, 1982. The Court of Appeals denied a timely filed

petition for rehearing on March 2, 1983. Petitioners invoke the

jurisdiction of this Court under section 1254(1) of Title 28,

United States Code.

CONSTITUTIONAL PROVISIONS AND ORDINANCE

INVOLVED

United States Constitution, Amendment II:

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.

United States Constitution, Amendment XIV:

SECTION |. All persons born or naturalized in the

United States, and subject to the junsdiction thereof,

are citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or immu-

nities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.

Illinois Constitution, Article 1, Section 22:

Subject only to the police power, the mght of the

individual citizen to keep and bear arms shall not be

infringed.

Morton Grove, Illinois Ordinance No. 81-11 (June 8, 1981)

appears in the Appendix at pages 63a-69a, as an Appendix to

the District Court’s opinion.

STATEMENT OF THE CASE

This case involves the constitutionality of Village of Mor-

ton Grove, Illinois’ (‘“‘Morton Grove”) Ordinance No. 81-11,

banning the possession of handguns. Appendix at 63a. Morton

Grove enacted the ordinance, entitled “An Ordinance Regu-

lating the Possession of Firearms and Other Dangerous Weap-

ons,” on June 8, 1981. The ordinance became effective on

September 6, 1981, although its enforcement was stayed briefly

pending the District Court’s ruling on its validity.

In significant part, the ordinance provides that “no person

shall possess, in the Village of Morton Grove... [a]ny hand-

gun, unless the same has been rendered permanently inopera-

tive.” Appendix at 65a. The only exceptions are those per-

taining to individuals such as peace Officers, prison officials, and

members of the armed forces. Violation of the handgun ban is

punishable by a fine of up to $500.00 and incarceration for up

to six months. The ordinance thus completely deprives private

individuals in Morton Grove of the possession of handguns,

even in the home. The ban is total and absolute.

Petitioners George L. Reichert and Robert E. Metler are

residents of the Village of Morton Grove. They are law-abiding

citizens and owners of operative handguns. In full compliance

with Illinois law, each possesses a valid Illinois Firearms

Owner’s Identification Card. See Ill. Rev. Stat., ch. 38, § 83-1

to 16.3 (1979). However, under Ordinance 81-11, these

lawfully licensed gun owners may not keep their handguns in

their homes to protect themselves and their families.

On June 9, 1981, the day after Ordinance 81-11 was

enacted, Victor D. Quilici brought the first action challenging

the validity of Ordinance 81-11 in the Circuit Court of Cook

County, Illinois. Quilici v. Village of Morton Grove, No. 81 CH

4439 (Cir. Ct. Cook County, filed June 9, 1981). The suit

challenged the ordinance under both the Illinois and United

States Constitutions. Citing the federal questions presented,

however, Morton Grove removed that action to the United

States District Court for the Northern District of [linois

pursuant to 28 U.S.C. § 1441 (1976).

Following the removal, Quilici forthwith asked the District

Court to abstain and remand the case to the Cook County

Circuit Court. The Illinois Supreme Court had never addressed

the Illinois Constitution’s separate mght to arms provision,

which 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. A ruling by the Illinois courts

that Ordinance 81-11 violated the Iilinois Constitution could

have obviated the need for the District Court to address the

federal constitutional issues. Nonetheless, on August 20, 1981,

the District Court declined to abstain. Quilici v. Village of

Morton Grove, No. 81 C 3432 (N.D. Il). Aug. 20, 1981) (order

denying motion to abstain ), reproduced in the Appendix at 72a-

74a.

After the District Court refused to abstain, petitioners

Reichert and Metler brought this separate action in the United

States District Court. As in the Quilici case, petitioners

contended that the Morton Grove ordinance violated both the

Illinois and United States Constitutions, specifically Article I,

Section 22 of the Illinois Constitution and the Second and Ninth

Amendments to the United States Constitution as applied to the

states and localities through the Fourteenth Amendment. Peti-

tioners invoked the District Court’s federal question jurisdic-

tion, 28 U.S.C. § 1331 (Supp. V 1981). The Court, on its own

motion, consolidated petitioners action with the Quilici case.'

Petitioners Reichert and Metler, along with others, also

filed a separate action in the Circuit Court of Cook County

challenging the validity of Ordinance 81-11 under the Illinois

Constitution alone. Petitioners sought to obtain a definitive

answer to the unresolved state constitutional question by the

Illinois, not the federal, courts. Petitioners’ Illinois action is

currently pending before the Illinois Supreme Court. Kalo-

dimos v. Village of Morton Grove, No. 82-282, slip op. (App. Ct.

Ill. Feb. 9, 1983), appeal filed, No. __ (S. Ct. May 25, 1983).

The District Court issued its opinion in the federal case on

December 29, 1981. It held that Ordinance 81-11 did not

violate either the Illinois or United States Constitutions. On the

federal questions, the District Court determined that the Second

Amendment did not apply to state and local governments,

relying on this Court’s 1886 decision in Presser v. Illinois, 116

U.S. 252 (1886). The District Court simply declared that

Presser was “still good law” and “controls this court.” Quilici v.

Village of Morton Grove, 532 F. Supp. 1169, 1182 (N.D. Ill.

1981), Appendix at 58a.

1A third action, Steng/ v. Village of Morton Grove, No. 81 C 4086 (N.D.

Ill. complaint filed July 20, 1981), was also consolidated with these cases.

In a split decision, the Court of Appeals for the Seventh

Circuit affirmed the District Court judgment. As an initial

matter, the Court of Appeals also declined to abstain. It

reasoned that an immediate federal decision was required

because “the issue of gun control [is] of vital importance to

every citizen.”’ Quilici v. Village of Morton Grove, 695 F.2d 261,

265, n.2 (7th Cir. 1982), Appendix at Sa. Further, it found

abstention unwarranted because it saw no “conflict between the

federal and state systems” in light of Morton Grove’s removal

of the case to federal court. Jd.

The majority of the Court of Appeals then followed the

District Court’s holding that the Second Amendment did not

apply to the states or their political subdivisions. As did the

District Court, the majority considered itself bound by its view

of Presser v. Illinois: ““{1]}t is the law of the land and we are

bound by it.” Jd. at 270, Appendix at 14a.

The dissenting judge of the Seventh Circuit panel vigor-

ously took issue with the majority’s decision. Disagreeing

entirely with the other two members of the panel, he concluded

that Ordinance 81-11 violated both the Illinois and United

States Constitutions. As to the federal questions, he stated:

The majority cavalierly dismisses the argument

that the night 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 USS.

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 or-

dered \iberty” than the basic right of an individual,

within the confines of the criminal law, to protect his

home and family from unlawful and dangerous intru-

sions.

Id. at 278, Appendix at 30a.

On March 2, 1983, the Court of Appeals denied a timely

filed petition for rehearing and suggestion for rehearing en

banc, with two judges dissenting. Appendix at 76a.

REASONS FOR ALLOWING THE WRIT

1. BY DECIDING A CONTROLLING, UNRESOLVED

QUESTION OF ILLINOIS CONSTITUTIONAL LAW

RATHER THAN ABSTAINING, THE DISTRICT

COURT AND THE COURT OF APPEALS DEPARTED

SO FAR FROM THE ACCEPTED JUDICIAL COURSE

AS TO CALL FOR AN EXERCISE OF THIS COURT'S

POWER OF SUPERVISION.

The District Court and the Court of Appeals should not

have addressed the difficult Second Amendment questions in

this case until the Illinois courts had had an opportunity to

consider the Illinois Constitution’s right to arms provision. Both

the District Court and the Court of Appeals should have

abstained pursuant to Railroad Commission of Texas v. Pull-

man Co., 312 U.S. 496 (1941).

This Court has repeatedly explained that, in a federal

system, it is often necessary for federal courts to abstain from

deciding certain cases in order to ensure the furtherance of

harmonious relations between state and federal authorities.

Railroad Commission of Texas v. Pullman Co., 312 U.S. 496

(1941). In a federal system, it is crucial that important

questions of state law be decided in the first instance by state,

not federal, courts. Elkins v. Moreno, 435 U.S. 647 (1978).

Not only does this course minimize federal-state conflict, but it

also reduces the risk that federal courts will decide con-

Sstitutional issues unnecessarily, when a conclusive state court

answer to solely state law questions could avoid entirely a

constitutional adjudication. Pullman, 312 U.S. at 500. As this

Court has said, the federal courts should not “decide an issue by

making a tentative answer which may be displaced tomorrow

by a state adjudication” with the concomitant “friction of a

premature constitutional adjudication.” Jd

The threshold question before both courts below was

whether Ordinance 81-11 violated Article I, Section 22 of the

Illinois Constitution. That provision—which the Illinois Su-

preme Court has never interpreted—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. That the provision is fairly capable of

different constructions as applied to the Morton Grove ordi-

nance at issue is plainly evident from the split decision of the

Court of Appeals on this very question. See Quilici, 695 F.2d at

265-69 and 271-80, Appendix at 6a-l2a and 1l6a-34a. The

courts below should have abstained to have the Illinois con-

stitutional issue resolved definitively by the Illinois courts rather

than tentatively by the federal courts. By not abstaining, the

courts below not only intruded into the Illinois state courts’

proper domain, but also proceeded to decide important federal

constitutional questions, possibly unnecessarily.?

This Court’s decision in Reetz v. Bozanich, 397 U.S. 82

(1970), is on almost all fours with this case. In Reetz, the

District Court had invalidated certain Alaskan fishing laws

under both the Alaska and United States constitutions. This

Court vacated that judgment and ordered the District Court to

abstain, finding that a state court decision on the state con-

stitutional issues presented “‘could conceivably avoid any deci-

sion under the Fourteenth Amendment and would avoid any

possible irritant in the federal-state relationship.” Jd. at 87.

Because “‘the nub of the whole controversy may be the state

constitution,” “the federal court should have stayed its hand

while the parties repaired to the state courts for a resolution of

their state constitutional questions.” Jd.

2 This is not a case where the state constitutional provision in issue simply

mirrors or tracks a federal constitutional provision. See Examining Board of

Engineers, Architects and Surveyors v. Flores De Otero, 426 U.S. 572 (1976).

The Illinois Constitution’s right to arms provision does not make any

reference to the militia, as in the Second Amendment. It applies expressly to

“the individual citizen” as compared to the Second Amendment’s reference to

“the people.” And the Illinois Constitution specifically refers to the state

police power, clearly a matter for the Illinois courts to address in the first

instance.

The course federal courts should follow in these circum-

stances is also plainly set forth in this Court’s decision in

Meridian v. Southern Bell Telephone & Telegraph Co., 358 US.

639 (1959):

Proper exercise of federal jurisdiction requires that

controversies involving unsettled questions of state

law be decided in the state tribunals preliminary to a

federal court’s consideration of the underlying fed-

eral constitutional questions... [W]hen the state

court’s interpretation of the statute or evaluation of its

validity under the state constitution may obviate any

need to consider its validity under the Federal Con-

stitution, the federal court should hold its hand, \est it

render a constitutional decision unnecessarily.

358 U.S. at 640-41 (emphasis added).

The courts below rejected abstention for unwarranted and

illogical reasons. The Court of Appeals stated that federal

courts are reluctant to abstain “when fundamental nghts such

as voting, racial equality or rights of expression are involved.”

695 F.2d at 265, n.2, Appendix at 5a. While petitioners agree

wholeheartedly that fundamental rights are involved here, it

was those very citizens trying to preserve their fundamental

rights who asked the federal courts to abstain so that they could

obtain a definitive state court determination of their state

constitutional claims. The Court of Appeals transmogrified the

very core of the abstention doctrine in telling petitioners that

they should have a prompt federal decision when they were not

asking for one.

The Court of Appeals also rejected abstention because it

viewed Morton Grove’s voluntary removal of the case to

federal court as eliminating any federal-state conflict. 695 F.2d

at 265, n. 2, Appendix at Sa. There is no logic, however, in

allowing a municipality to avoid its own state courts when its

citizens, threatened with prosecution, seek a state forum to

3 Moreover, this Court has ordered abstention in many cases where

fundamental rights were involved. E£.g., Bellotti v. Baird, 428 U.S. 132

(1976) (abortion rights); Harrison v. NAACP, 360 U.S. 167 (1959) (racial

discrimination ).

determine the validity of the municipality’s ordinances under

state law. Morton Grove’s removal of the case to federal court

should be viewed not as a waiver but an attempt to evade a

definitive state court determination of the consistency of its

ordinance with the Illinois Constitution. Moreover, the Court of

Appeals’ reasoning ignores the principal basis for abstention:

the avoidance of an unnecessary federal constitutional adjudi-

cation when the state court’s determination could terminate the

controversy.

The District Court’s rationale for not abstaining was

equally as flawed. Quilici v. Village of Morton Grove, No. 81 C

3432 (N.D. Ill. Aug. 20, 1981), Appendix at 72a-74a. In the

District Court’s view, because it had available the debates from

the Illinois constitutional convention, and two Illinois /ower

courts had addressed Section 22 of the Illinois Constitution in

other contexts, the meaning of the Illinois right to arms clause

was “not wholly unsettled.” Appendix at 73a. Yet, the District

Court did not deny that the highest court of the state had never

addressed the meaning of Section 22. And the Court of

Appeals’ split decision makes clear that the issue is far from

settled.

Significantly, the Court of Appeals would not have had to

send the parties back to a new state court litigation to have the

state constitutional question resolved. The meaning of Section

22 was already beiore the Illinois state courts, on its way to the

Illinois Supreme Court. See Kalodimos v. Village of Morton

Grove, No. 82-282, slip op. (App. Ct. Ill. Feb. 9, 1983), appeal

filed No. — (S. Ct. May 25, 1983). What is more, the pending

State action involves the same Morton Grove ordinance that

was before the Court of Appeals. The Court of Appeals, well

aware of these facts, ignored them.¢

4 The Court of Appeals was seriously wrong in stating that only the amici

briefs, and not petitioners, raised the abstention question. Quilici, 695 F.2d at

265, n. 2, Appendix at Sa. Petitioners filed a motion to abstain and

supporting memorandum of law on April 8, 1982, in the Court of Appeals.

Plaintiff-Appellants’ Motion To Abstain and Memorandum of Law in Support

of Plaintiff-Appellants’ Motion To Abstain. And petitioners urged abstention

at oral argument. At the District Court level, petitioners were compelled to

file their federal complaint by the District Court’s denial of Quilici’s motion to

remand his complaint to state court. In the absence of the District Court’s

action, petitioners would have litigated this case only in state court.

It is hard to imagine a clearer case for abstention. There

unquestionably exists an unsettled question of state con-

stitutional law. And the state courts are, in fact, in the very

process of resolving that question as it pertains to the same

ordinance in question in the federal proceeding. If this Court

determined that abstention was the proper course in Reetrz,

where no state court action was even pending, abstention must

be the proper course here. This Court should summarily vacate

the opinions in this case and direct the Court of Appeals and

the District Court to abstain, pending the Illinois Supreme

Court’s consideration of the threshold, state constitutional

question.

2. IN LIGHT OF THIS COURT’S MODERN DECISIONS

INCORPORATING ALL “FUNDAMENTAL RIGHTS”

CONTAINED IN THE BILL OF RIGHTS INTO THE

FOURTEENTH AMENDMENT’S DUE PROCESS

CLAUSE, THIS COURT SHOULD REVISIT ITS 97-

YEAR OLD PRECEDENT IN PRESSER V. ILLINOIS,

116 U.S. 252 (1886).

The Court of Appeals held that the Second Amendment

does not apply to state and local governments. It did so by

relying on a 97-year old decision of this Court, Presser v.

Illinois, 116 U.S. 252 (1886). That decision long preceded the

modern Fourteenth Amendment incorporation analysis that is

now well established.

The impact of the Court of Appeals’ decision, if left

standing, will be enormous. Since the District Court rendered its

decision in this case, Morton Grove has been inundated with

requests for copies of Ordinance 81-11, as municipalities across

the country apparently plan similar legislation. J/linois Suburb

Inspires A National Drive For Handgun Controls, The Washing-

ton Post, Mar. 1, 1982, at A9, col. 1. Another source reports that

‘“*(]]awmakers in more than a dozen states are expected to have

pro-gun control measures on their 1983 agendas.” The Chris-

tian Science Monitor, Dec. 9, 1982, at 3, col. 3. The course that

this gun legislation will take nationwide will be drastically

affected by whether state and local governments are left to

believe that the Second Amendment is inapplicable to them, as

the Court of Appeals held.

This Court should not leave state and local governments to

draft their legislation unguided on this important constitutional

issue. Only by acting now to review the Court of Appeals’

decision can the Court assure that subsequent legislation fol-

lows a course which does not infringe fundamental nights.

Where as fundamental a guarantee of the Bill of Rights as the

right to protect oneself and one’s family in the home is at stake,

the Court should avoid delay in addressing the issue. The

dissenting judge of the Seventh Circuit panel noted the great

“magnitude of the political and social implications of this case.”

695 F.2d at 271, Appendix at 17a. The question of the Second

Amendment’s applicability to the states and their local subdivi-

sions through the Fourteenth Amendment is of paramount

importance.

Because this Court has not considered whether the Second

Amendment’s guarantees apply to the states since 1886, it has

never applied a modern analysis to the question. Nor did the

Court of Appeals. It simply cited this Court’s ancient holding in

Presser v. Illinois, 116 U.S. 252 (1886), that the Second

Amendment by its terms “‘is a limitation only upon the power of

congress and the national government, and not upon the

state[s].” 116 U.S. at 265.

But Presser was decided before the Court even began to

incorporate fundamental guarantees of the Bill of Rights into

the Due Process Clause of the Fourteenth Amendment, to

ensure their applicability to the states.5 At the time of Presser,

numerous cases, all explicitly or implicitly since overruled, held

5 A close reading of Presser reveals that the Court did not even address

the issue of incorporation of the Second Amendment through the Fourteenth

Amendment. The Court expressly held only that the Second Amendment by

its own terms does not apply to the states. As to the applicability of the

guarantees of the Bill of Rights to the states through the Fourteenth

Amendment, the Court in Presser considered only the right to assemble, not

the right to keep and bear arms, as it had first determined that the right to

keep and bear arms was not infringed by a ban on private parties “parading

with arms,” which was the issue in Presser. 116 U.S. at 267. Subsequently, in

Miller v. Texas, 153 U.S. 535, 538 (1894), the Court cited Presser, but only

for the proposition that the Second Amendment itself applied to the Federal

Government, not the states. As to the Fourteenth Amendment, the Court

said: “[{I]f the Fourteenth Amendment limited the power of the states as to

such rights, as pertaining to citizens of the United States, we think it was fatal

to this claim that it was not set up in the trial court.” Jd. at 538.

that neither the Privileges and Immunities Clause nor the Due

Process Clause bound the states to comply with the guarantees

of the Bill of Rights. E.g., Maxwell v. Dow, 176 U.S. 581

(1900) (no right to jury trial in criminal cases); Twining v. New

Jersey, 211 US. 78 (1908) (no privilege against self-

incrimination); Weeks v. United States, 232 U.S. 383 (1914)

(no right to freedom from unreasonable searches and seizures );

Prudential Insurance Co. of America v. Cheek, 259 U.S. 530

(1922) (no nght to free speech).

Commencing in 1925 and continuing to the present day,

the Court has firmly rejected the narrow view of the Fourteenth

Amendmenm that prevailed in the late 19th and early 20th

centuries. Starting with the substantive guarantees of the First

Amendment, the Court began applying to the states on a case-

by-case basis each fundamental guarantee of the Bill of Rights.

See, e.g., Gitlow v. New York, 268 U.S. 652 (1925) (freedom of

speech and press); Fiske v. Kansas, 274 U.S. 380 (1927)

(freedom of speech); Near v. Minnesota, 283 U.S. 697 (1931)

(freedom of the press); Hamilton v. Regents of the University of

California, 293 U.S. 245 (1934) (free exercise of religion);

Grosjean v. American Press Co., 297 U.S. 233 (1936) (freedom

of the press); DeJonge v. Oregon, 299 U.S. 353 (1937) (free-

dom of assembly); Herndon v. Lowry, 301 U.S. 242 (1937)

(freedom of speech and assembiy). See also Powell v. Ala-

bama, 287 U.S. 45 (1932) (right to counsel). For the most

part, these decisions distinguished or ignored adverse Presser-

era precedents without explicitly overruling them. See, e.g.,

Gitlow v. New York, 268 U.S. at 666; Fiske v. Kansas, 274 US.

at 386-87.

In the landmark case of Palko v. Connecticut, 302 U.S. 319

(1937), the Court harmonized its decisions. It explicitly

articulated a new test for the content of the Due Process Clause

which prevails to this day: “[I]mmunities that are valid as

against the federal government by force of the specific pledges

of particular amendments have been found to be implicit in the

concept of ordered liberty, and thus, through the Fourteenth

Amendment, become valid as against the states.” 302 U.S. at

324-25 (footnote omitted). The Presser court did not apply

this test.

This Court has adopted a broad and all-encompassing

definition of rights “implicit in the concept of ordered liberty.” &

In its recent decisions, the Court has incorporated into the

Fourteenth Amendment every explicit guarantee of the Bill of

Rights it has considered and upheld every challenge to state

violations of the explicit guarantees of the first eight amend-

ments. £.g., Mapp v. Ohio, 367 U.S. 643 (1961) (Fourth

Amendment exclusionary rule); Robinson v. California, 370

U.S. 660 (1962) (Eighth Amendment right to freedom from

cruel and unusual punishment); Gideon v. Wainwright, 372

U.S. 335 (1963) (Sixth Amendment right to counsel ); Malloy v.

Hogan, 378 U.S. 1 (1964) (Fifth Amendment right to freedom

from self-incrimination ); Pointer v. Texas, 380 U.S. 400 (1965)

(Sixth Amendment right to confront opposing witnesses);

Klopfer v. North Carolina, 386 U.S. 213 (1967) (Sixth Amend-

ment right to speedy trial); Washington v. Texas, 388 U.S. 14

(1967) (Sixth Amendment right to compulsory process for

witnesses ); Duncan v. Louisiana, 391 U.S. 145 (1968) (Sixth

Amendment right to jury trial); Benton v. Maryland, 395 US.

784 (1969) (Fifth Amendment privilege against double jeop-

ardy).7”

6 The Court initially applied the Pa/ko test somewhat cautiously. See

Palko v. Connecticut, 302 U.S. at 328, overruled, Benton v. Maryland, 395 US.

784 (1969) (no privilege against double jeopardy); Adamson v. California,

332 U.S. 46, 54-56 (1947), overruled, Malloy v. Hogan, 378 U.S. 1 (1964)

(state prosecutor may comment on accused’s failure to testify); Wolf v.

Colorado, 338 U.S. 25 (1949), overruled, Mapp v. Ohio, 367 U.S. 643 (1961)

(exclusionary rule not applied to the states); Irvine v. California, 347 US.

128 (1954) (exclusionary rule); Breithaupt v. Abram, 352 U.S. 342 (1957)

(exclusionary rule).

7 See also Engblom v. Carey, 677 F.2d 957 (2d Cir. 1982), a recent

decision which had no hesitation incorporating into the Fourteenth Amend-

ment the Third Amendment’s prohibition against quartering troops, and Hunt

v. Roth, 648 F.2d 1148 (8th Cir. 1981), vacated as moot sub nom. Murphy v.

Hunt, 455 U.S. 478 (1982), incorporating the excessive bail provision of the

Eighth Amendment.

Presser v. Illinois cries out for revisiting. The guarantees of

the Second Amendment should be tested to determine whether

they meet the Court’s current standard for incorporation

through the Due Process Clause.® Particularly is this so in light

of the fact that the Morton Grove ordinance prohibits the

keeping of a handgun in the home. The fundamental nature of

such a right has long been recognized. In Rex v. Dewhurst, |

State Trials, New Ser. 529, 601-02 (1820), the jury was

instructed:

But are arms suitable to the condition of the people in

the ordinary class of life, an. are they allowed by

law? A man has a clear right to arms to protect

himself in his house. A man has a clear nght to

protect himself when he is going singly or in a small

party upon the road where he is travelling or going

for the ordinary purposes of business. But I have no

difficulty in saying you have no mght to carry arms to

a public meeting, if the number of arms which are so

carried are calculated to produce terror and alarm.

(Emphasis added.) See Rex v. Thompson, 100 Eng. Rep. 10, 12

(K.B. 1787) (it “is not an offense to keep or use a gun’”’); Rex

v. Hartley, Cald. 175, 178 (1782) (“ta gun may be used for...

the protection of a man’s house”); Wingfield v. Stratford, 96

Eng. Rep. 787 (K.B. 1752) (“a gun may be kept for the

defense of a man’s house”); Mallock v. Eastley, 87 Eng. Rep.

1370, 1374 (K.B. 1744) (“the mere having a gun was no

offense ... for a man may keep a gun for the defense of his

house and family ...”); Rex v. Gardner, 87 Eng. Rep. 1240,

1241 (1739); Rex v. Gardiner, 95 Eng. Rep. 386, 388 (K.B.

1738) (keeping a gun in the home is a “liberty which was

allowed by the common law”); Rex v. Knight, 87 Eng. Rep. 75,

76, 90 Eng. Rep. 330 (K.B. 1687).

8 See Malloy v. Hogan, 378 U.S. 1, 5 ( 964). In Malloy, the Court noted

that it “has not hesitated to re-examine past decisions according the

Fourteenth Amendment a less central role in the preservation of basic liberties

than that which was contemplated by its Framers when they added the

Amendment to our constitutional scheme.” Jd.

In current times, courts have repeatedly held that the

police have no !egal duty to protect the individual citizen.

Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982); Warren v.

District of Columbia, 444 A.2d 1 (D.C. App. 1981); Riss v. City

of New York, 22 N.Y. 2d 579, 293 N.Y.S. 2d 897, 240 N.E. 2d

860 (1968). Police are understaffed, and, even when ade-

quately staffed, cannot possibly be expected always to protect

individuals. Every citizen must be able to defend himself, his

family, and his home.

3. THE COURT OF APPEALS SERIOUSLY MiIS-

APPLIED UNITED STATES V. MILLER, 307 U.S. 174

(1939), THIS COURT’S ONLY SUBSTANTIVE DECI-

SION UNDER THE SECOND AMENDMENT, CALL-

ING FOR AN EXERCISE OF THE COURT’S POWER

OF SUPERVISION.

The Court of Appeals further concluded that possession of

handguns “‘is not part of the right to keep and bear arms.” 695

F.2d at 271, Appendix at 15a. Relying on United States v.

Miller, 307 U.S. 174 (1939), the Court of Appeals stated that

the Second Amendment right to keep arms “‘is inextricably

connected to the preservation of a militia” and “extends only to

those arms which are necessary to maintain a well regulated

militia.” 695 F.2d at 270, Appendix at 14a. Inexplicably,

however, the Court of Appeals concluded that “‘[u]nder the

controlling authority of Miller ... the right to keep and bear

handguns is not guaranteed by the second amendment.” Jd.

(footnote omitted), Appendix at 1 Sa.

The conclusion drawn by the Court of Appeals seriously

misapplies the Miller test. In Miller, the Court upheld the

constitutionality of section 11 of the National Firearms Act, 26

U.S.C. § 1132j (1934), which prohibited interstate trans-

portation of unregistered firearms. But that statute expressly

excluded from its coverage pistols or revolvers. Id., § 1132,

reproduced in the Court’s opinion, 307 U.S. at 175, n.1. Miller

therefore never addressed the right to possess pistols.

Miller was decided on very narrow grounds. In addressing

the short-barrel shotgun at issue in Miller, the Court held only

that there was no evidence, and it was not within judical notice,

that a short-barrel shotgun “is any part of the ordinary military

equipment or that it could contribute to the common defense.”

307 U.S. at 178. Pistols are plainly arms vital to the preserva-

tion of a militia.

The Framers clearly contemplated that pistols would be

protected militia arms. Colonial militia laws routinely required

individuals to keep them. See, e.g., I The Colonial Laws of

New York from 1664 to the Revolution 232 (1894); III Laws

of Virginia from the First Session of the Legis. in 1619 at 338

( W. Hening ed. 1823); III The Public Records of the Colony of

Conn. 178 (C. Hoadly ed. 1868); III Records of the Colony of

R.I. & Providence Plantations 433 (J. Bartlett ed. 1856); VI

Documents Relating To Colonial History of N.J. 192-93 (W.

Whitehead ed. 1882). The first federal militia statute also

mentioned pistols. | Stat. 271, 272 (1792).

Pistols have also persisted since colonial times as common

military arms. During World War II, for example, the War

Department distributed a manual specifically recommending

the keeping of arms “which a guerrilla in civilian clothes can

carry without attracting attention. They must be easily portable

and easily concealed. First among these is the pistol.” B. Levy,

Guerrilla Warfare 56 (Panther Publications 1964) (emphasis

added ). To this day, the military continues to issue pistols to its

personnel. See Service Pistol Update, Am. Rifleman, Sept.

1981, at 30. And the pistol is used by every armed force in the

world. W.H.B. Smith, Small Arms of the World passim (\\th

rev. ed. 1977).

Moreover, the right to keep arms extends not only to the

preservation of the militia, but also to the protection of self,

family, and home. The Framers were protecting existing rights

through the Bill of Rights, not creating new rights. Dimick v.

Schiedt, 293 U.S. 474, 476 (1935); McGrain v. Daugherty, 273

U.S. 135, 156 (1927). As noted above, the right to defend

oneself with arms has been fundamental throughout history.

And the possession of pistols is basic to self-protection, if not, in

fact, necessary to it. Cf. Patsone v. Pennsylvania, 232 U.S. 138,

| =

143 (1914) (Holmes, J.) (distinguishing a pistol from rifles

and shotguns as an arm necessary to self-defense). A pistol is

both a militia arm, protected by the Second Amendment as

interpreted by this Court’s holding in Miller, and an important

instrument of self-defense, especially in the home.

9 Numerous state courts have held, explicitly or implicitly, that handguns

are constitutionally protected arms. Strate v. Kessler, 289 Or 359, 614 P.2d

94, 98-99 (1980): Schubert v. DeBard, 398 N.E.2d 1339 (Ind.App. 1980)

(“handgun”); Taylor v. McNeal, 523 S W.2d 148, 150 (Mo.App. 1975)

(“pistols”); Rinzler v. Carson, 262 So.2d 661, 666 (Fla. 1972) (‘“semi-

automatic pistols”); City of Las Vegas v. Moberg, 82 N.M. 626, 485 P.2d 737

(N.M.App. 1971) (“pistols”); State v. Nickerson, 126 Mont. 157, 247 P.2d

188, 192 (1952) (“revolver”); People v. Zerillo, 219 Mich. 635, 189 N.W. 927

(1922) (“revolver ); State v. Kerner, 181 N.C. 574, 107S.E. 222, 224( 1921)

(“pistol”); Stare v. Rosenthal, 75 Vt. 295, 55 A. 610 (1903) (“revolver”); Jn

Re Brickey, 8 Idaho 597, 70 P. 609 (1902) (“revolver”)

See also, Malcolm, The Right of the People to Keep and Bear Arms: The

Common Law Tradition, \0 Hastings Const. LQ __ (1983); Caplan, The

Right of the Individual to Bear Arms: A Recent Judicial Trend, \982 Det. C.L

Rev. 789; Shalhope, The Ideological Origins of the Second Amendment, 69 J

Am. Hist. 599 ( 1982); Halbrook, To Keep and Bear Their Private Arms: The

Adoption of the Second Amendment, \787-1791, 10 N. Ky. L. Rev. 13 (1982);

Gardiner, To Preserve Liberty—A Look at the Right to Keep and Bear Arms,

10 N. Ky. L. Rev. 63 (1982); Halbrook, The Jurisprudence of the Second and

Fourteenth Amendments, 4 Geo. Mason U. L. Rev. | (1981); Cantrell, The

Right to Keep and Bear Arms, $3 Wis. Bar Bull. 21 (1980); Caplan, Handgun

Control: Constitutional or Unconstitutional?, 10 N.C. Central L.J. §3 (1978);

Caplan, Restoring the Balance: The Second Amendment Revisted, § Fordham

Urban L.J. 31 (1976); Whisker, Historical Development and Subsequent

Erosion of the Right to Keep and Bear Arms, 78 W. Va. L. Rev. 171 (1976):

Weiss, A Reply to Advocates of Gun Control Law, 52 J. Urban L. 577 (1974);

Hardy & Stompoly, Of Arms and the Law, 5| Chi-Kent L. Rev. 62 (1974);

McClure, Firearms and Federalism, 7 Idaho L. Rev. 197 (1970); Levine &

Saxe, The Second Amendment: The Right to Bear Arms, 7 Houston L. Rev. |

(1969); Olds, The Second Amendment and the Right to Keep and Bear Arms,

46 Mich. St. B.J. 15 (1967); Comment, The Kight to Keep and Bear Arms: A

Necessary Constitutional Guarantee or an Outmoded Provision of the Bill of

Rights?, 31 Alb. L. Rev. 74 (1967); Sprecher. The Lost Amendment, 5|

A.B.A.J. 554 & 665 (2 parts) (1965): Hays, The Right to Bear Arms, A Study

in Judicial Misinterpretation, 2 Wm. & Mary L. Rev. 381 (1960).

CONCLUSION

The Court should vacate summarily the Seventh Circuit’s

opinion and direct the courts below to abstain. Should the

Court regard summary action as inappropriate, the writ should

be granted for the reasons set forth above.

Respectfully submitted,

STEPHEN N. SHULMAN

Barry S. SPECTOR

CADWALADER, WICKERSHAM & TAFT

1333 New Hampshire Avenue, N.W.

Suite 700

Washington, D.C. 20036

(202) 293-6300

Counsel for Petitioners

Of Counsel:

MICHAEL K. MCCABE

RICHARD E. GARDINER

ROBERT DOWLUT

1600 Rhode Island Avenue, N.W.

Washington, D.C. 20036

May 31, 1983

UNITED STATES COURT OF APPEALS,

SEVENTH CIRCUIT.

Victor D. QuiLicil, ROBERT STENGL, ef al., GEORGE L. REIC-

HERT, and ROBERT E. METLER,

Plaintiffs-Appellants.

Vv.

VILLAGE OF MORTON GROVE, ef al.,

Defendants-Appellees.

Nos. 82-1045, 82-1076 and 82-1132.

Argued May 28, 1982.

Decided Dec. 6, 1982.

As Amended Dec. 10, 1982.

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,' which prohibits the

' 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 PRESIDENT AND BoarD OF

TRUSTEES OF THE VILLAGE OF MORTON Grove, Cook Counry, ILLINOIS, AS

FOLLows:

SECTION |: The Corporate Authorities do hereby incorporate the fore-

going WHEREAS clauses into the Ordinance, thereby making the findings as

hereinabove set forth.

(footnote continues)

possession of handguns within the Village’s borders. The

district court held that the Ordinance was constitutional. We

affirm.

(footnote continued)

SECTION 2: Thai 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 signaling or safety and required or

recommended by the United States Coast Guard or the Interstate Commerce

Commission.

(3) Any device used exclusively for the fining 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, partner-

ship, 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.

(RP) 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

(footnote continues)

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

(footnote continued)

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-sheli, 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.

(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-fun-*!oning 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, penitentianes, 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

(footnote continues)

brought by George L. Reichert and Robert E. Metler (collec-

tively 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 Con-

stitution and the second, ninth and fourteenth amendments of

the 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.IIl. 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

(footnote continued)

guards actually and regularly employed in the commercial or industnal

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 | 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 trans-

portation 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.

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 mght to possess handguns for self-defense.

Appellants contend that the district court incorrectly construed

the relevant constitutional provisions, assigning numerous er-

rors based on case law, historical analysis, common law tradi-

tions and public policy concerns.?

While we recognize that this case raises controversial issues

which engender strong emotions, our task is to apply the law as

2 Three amici briefs were also filed, by the Illinois State Rifle Associ-

ation, the Handgun Control, Inc., and the States of Arizona, Connecticut,

Hawaii, Idaho, Louisiana, Missoun, 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 Curae 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[1] at 2105 (1977). Federal courts have been

reluctant to abstain when fundamental nghts such as voting, racial equality or

rights of expression are involved. Jd. 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 appropnate 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 voluntanly removed this

case to federal court. Accordingly, we find that the abstention doctrine has no

relevance.

it has been interpreted by the Supreme Court, regardless of

whether that Court’s interpretation comports with various per-

sonal 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’ contentions.

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 con-

stitutional guarantees should be broadly construed and that

constitutional provisions should prevail over conflicting statu-

tory 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 posses-

sion 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 municipal-

ity 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 nght 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 stan-

dard rifles and shot guns 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’ asser-

tion that “‘arms” includes handguns, we believe that a dis-

cussion 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 iurn to the constitutional debates for guidance on the proper

construction of arms.% 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 (1955).4

3In construing section 22, the district court also relied heavily on the

constitutional debates. Appellants challenge this reliance, arguing that con-

stitutional 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.

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, 1717-

19, 1818.

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 hand-

guns 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, 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 cnly a

narrow individual right which is subject to substantial legisla-

tive 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 appli-

cation to this case. Jd. 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 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 Con-

stitution] has the right to ban all firearms in the state

as far as individual citizens owning them is con-

cerned. 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.” Jd. at 1693.5 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 munici-

palities 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

5The 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.

10a

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® is based 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. Brice-

land, 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.IIl.L.Rev. 775, 777-79; Vitullo & Peters, Jnter-

governmental 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 Mll.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 vy. 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 regu-

lations which prohibit “possession of items legislatively found

6 Tl]. 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).

lla

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 the police power with respect to a con-

stitutionally 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 [ll.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 prohibi-

tion 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. Iilinois Gamefowl

Breeders Ass’n v. Block, 75 Ill.2d 443, 27 Ill.Dec. 465, 389

N.Ed2d 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 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

l2a

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

(Ist 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 appel-

lants’ rights guaranteed by the Illinois Constitution.”

Ill

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 differ-

ent 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 amend-

ment 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

7 We note that Kalodimos v. Village of Morton Grove, 8\ Ch. 6424 slip

op. (Cook County, Ill. Jan. 29, 1982) in which Reichert was one of several

plaintiffs, is consistent with our analysis here

l3a

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 might 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 other amend-

ments into the fourteenth amendment have effectively over-

ruled 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

14a

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, 4n.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 unsup-

ported. 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 (1908).

Since we hold that the second amendment does not apply

to the states, we néed 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

militia.

In an attempt to avoid the Miller holding that the

right to keep and bear arms exists only as it relates to protecting

l5a

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 mili-

tary weapons.® 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 con-

trolling authority of Miller we conclude that the right to keep

and bear handguns is not guaranteed by the second amend-

ment.9

Because the second amendment is not applicable to Mor-

ton 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.

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

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.

9A similar conclusion has been reached by numerous other courts.

United States v. Oakes, 564 F.2d 384 (6th Cir.1977), cert. denied, 435 US.

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).

l6a

the First Congress and the writings of legal philosophers to

establish that the nmght 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’ argu-

ment 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. '0

Reasonable people may differ about the wisdom of Ordi-

nance 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

AFFIRMED.

COFFEY, Circuit Judge, dissenting.

The constitutions of the United States and the respective

states define and delineate the powers of our various govern-

mental 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

10 Appellants also argued, in the district court, that Ordinance No. 81-11

violated the fifth amendment and is unconstitutionally vague. These argu-

ments were not raised in this court.

17a

three separate and distinct branches. Specifically, if a legisla-

tive 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 representa-

tives 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 legisla-

tion 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 con-

stitutional law, impermissibly interferes 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 respect-

fully 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 long-

standing 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 [ll.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 Con-

stitutional 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 in-

stitutions.’

* * * _ * &

‘Home Rule City adopts an ordinance limiting

the rates that may be charged by the telephone

company for local calls. Long-standing state regu-

lation of utility rates precludes this subject from being

considered a matter pertaining to home-rule govern-

ment 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

19a

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).1 The Hutchcraft

court held that “the legislature has preempted the subject of

freedom from unlawful discrimination.” Jd. 60 IIl.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 posses-

sion has been impliedly preempted by the Illinois Legislature

because one would be “hard-put to envision a more com-

prehensive 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 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

1On October 5, 1982, the Illinois Supreme Court denied a petition for

leave to appeal the Hutchcraft decision, Illinois Supreme Court Docket No.

56635.

2 Tll.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

** *

20a

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? and the carrying of a concealed

handgun under certain circumstances is proscribed by

Ill.Rev.Stat. ch. 38, § 24-1(a)(4).4 Additionally, it is a violation

of state law to possess a firearm in an establishment licensed to

sell liquor, wine or beer.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

3 ]ll.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:

7 * = * * *

(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.”

4 Tl].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:

_ * * x * *

(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

** * #

5 [ll.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:

* a * o i. *

(8) Carnes 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

** *”

2la

from enacting such a categorical prohibition of handgun posses-

sion.®

As recognized by the majority, consideration was given to

the issue of firearm possession at Illinois’ Sixth Constitutional

Convention. 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 Tlinois 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.

6 [l].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:

* * e = * *

(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

** *”

22a

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 prohibit-

ing handgun possession.

Further support for the proposition that the Illinois Legis-

lature intended to peremptorily address the issue of the prohibi-

tion of handguns and firearms is found when comparing

Ill.Rev.Stat. ch. 38, § 24 (addressed above) with IIl.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

83.7

Pursuant to section 83, a municipality can enact an ordi-

nance 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 circum-

scription which falls far short of an absolute prohibition.

7 Tll.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.”

23a

“The words ‘prohibit’ and ‘restrict’ are not syn-

onymous. 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 in-

tention would have been clearly expressed as was the author-

ization 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 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 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 cate-

gorical ban on the possession of handguns, with !imited ex-

ceptions. 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.

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 af-

fairs....” 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).

24a

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 above.

“[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.” Jd. 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.” Jd. 2

Ill.Dec. at 268, 357 N.E.2d at 435.

Practical considerations regarding the Morton Grove Ordi-

nance show why handgun possession is properly a matter of

25a

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. The Ordinance is obviously

designed to prohibit, with limited exceptions, possession of all

handguns in Morton Grove whether by residents, non-residents,

travelers, etc.

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.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 contrcl 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.”’'° Experience has taught mankind that

the retention of unenforecable 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

8 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.”

9 Illinois law permits a handgun owner to transport a handgun by car if

the handgun is nct immediately accessible to the driver or any other occupant

of the vehicle. See IIl.Rev.Stat. ch. 38, §§ 24—1(a)(4) and 24(2)(b)(4).

10 Peoples v. Abrahams, 40 N.Y.2d 277, 286, 386 N.Y.S.2d 661, 353

t.E.2d 574 (1976).

26a

prevent home rule units from adopting conflicting enactments.”

To support this proposition, the majority relies without dis-

cussion on City of Evanston v. Create, Inc., 85 I[ll.2d 101, 51

Ill.Dec. 688, 421 N.E.2d 196 (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 power granted by the Illinois Con-

stitution. 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

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 manda-

tory. What is outlawed in one municipality becomes manda-

tory in another. The Illinois Legislature never intended to

permit the possibility of a hodgepodge of conflicting home rule

enactments when it adopted IIl.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. 1114, §§ 22.11 and 22.12. If local authorities were allowed

27a

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, even though it was the view

of the framers of the Illinois Constitution that firearm posses-

sion 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 weap-

ons, handguns, or some other category.

* * * * * *

[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 hand-

guns... [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 recog-

nized 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 “envis-

ioned 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

28a

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, Fos-

ter’s view was that handgun possession was a matter of

statewide concern best addressed by state legislation.

The Morton Grove Ordinance prohibiting handgun posses-

sion 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 ( Sth

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

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 te allow Illinois citizens to possess hand-

guns, 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, 422 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 statute forbids, or

forbid an act which the statute permits.” Jd.

29a

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 ex-

pressly allow for the possession of handguns by individuals

when in their homes, in their fixed places of business or upon

their land.'' 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.

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 provi-

sions of the statute. The registration ordinance was upheld

because there was “no inconsistency or repugnancy” between it

and statutory provisions relating to firearm ownership registra-

tion. 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. Addi-

tionally, 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 regis-

tration 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 posses-

sion of handguns is a matter of statewide, or even federal

concern, which should not be disrupted by permitting this type

of contradictory local action.

See, e.g., Ill.Rev.Stat. ch. 38, §§ 24—1(a)( 4), (10)

30a

Ill.

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 mght 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), address-

ing 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.” Jd. at 33, 75

S.Ct. at 102. The term is neither “abstractly nor historically

capable of complete definition.” Jd. 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 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.” Jd. 94 N.E. at 922.

“Necessarily there are limits beyond which legisla-

tion cannot constitutionally go in depriving individ-

3la

uals of their natural rights and liberties. To deter-

mine 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 cogni-

zance of the natural nght 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 tre-

mendous 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 night

to freedom from invasions of privacy by government or public

officials. See Stein v. Howlett, 52 Ull.2d 570, 289 N.E.2d 409,

411, appeal dismissed, 412 U.S. 925, 93 S.Ct. 2750, 37 L.Ed.2d

152 (1973).

The Morton Grove Ordinance, by prohibiting the posses-

sion 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 para-

meters 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 jurispru-

dence. Among the enumerated rights in the Bill of Rights are

the Third Amendment’s prohibition of quartering of troops in a

32a

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 in-

vasions “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 rights 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 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, 89 S.Ct. at 1247.12

The Court has made it clear that its Stanley decision was

not based on the idea that 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

12] 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.

33a

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

34a

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. Mor-

ton 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.

35a

United States District Court,

N. D. ILLinots, E. D.

Victor D. QUILICI,

Plaintiff,

Vv.

VILLAGE OF MORTON GROVE,

Defendant.

ROBERT STENGL, et al.,

Plaintiffs,

Vv.

VILLAGE OF MORTON GROVE, ef al.,

Defendants.

GEORGE L. REICHERT, ef al.,

Plaintiffs,

. e

VILLAGE OF MORTON GROVE,

Defendant.

Nos. 81 C 3432, 81 C 4086 and 81

C 5071.

Dec. 29, 1981.

MEMORANDUM OPINION AND ORDER

DECKER, District Judge.

This is a civil action challenging the constitutionality of a

gun control ordinance passed by the Trustees of the Village of

Morton Grove. On June 8, 1981, the Morton Grove Board of

Trustees enacted Ordinance # 81-11, entitled “An Ordinance

Regulating the Possession of Firearms and Other Dangerous

36a

Weapons.” (A copy of the ordinance is attached as an appen-

dix.) In part, the ordinance provides that “no person shall

possess, in the Village of Morton Grove... [a]ny handgun,

unless the same has been rendered permanently inoperative.”

The ordinance specifies various limited exceptions for certain

individuals, such as peace officers, prison officials, and members

of the armed forces and national guard. The ordinance also

exempts licensed gun collectors and provides that handgun

owners are free to retain their operative handguns for recrea-

tional use, as long as the guns are kept and used on the

premises of licensed gun clubs and certain other rules are met.

Violation of the ordinance is punishable by fines of up to

$500.00, and incarceration for up to six months for repeat

offenders.

Consolidated here are three civil suits, filed shortly after

the enactment of the ordinance, by several residents of Morton

Grove.' The plaintiffs have alleged that the enforcement of the

ordinance, which has been stayed pending this court’s ruling on

its validity, would violate both the Illinois and United States

constitutions. Both sides have moved for summary judgment

on the issue of whether the ordinance, on its face, violates

article 1, section 22 of the Illinois Constitution, or the Second,

Fifth, Ninth or Fourteenth Amendments to the United States

Constitution. Because the state constitutional issue is poten-~

tially dispositive, the court will first address the validity of

Ordinance # 81-11 under the Illinois Constitution.

The Right to Arms Under the Illinois Constitution

In 1970, a right to arms clause was included in the Illinois

Constitution for the first time. Article 1, section 22 provides:

Right to Arms

Subject only to the police power, the right of the

individual citizen to keep and bear arms shall not be

infringed.

' The four named plaintiffs, Victor D. Quilici, Robert Stengl, George L.

Reichert, and Robert E. Metler, all allege that they own handguns as defined

in the ordinance and would be adversely affected if the ordinance were

upheld.

37a

The plaintiffs have contended that Morton Grove’s ordinance

impermissibly infringes upon that right, while the defendant

claims that its action represents a valid exercise of the police

power. Central to the court’s resolution of this controversy is a

determination of the meaning of section 22, itself.

Section 22, on its face, requires a reconciliation of two

competing notions of individual mght and legislative pre-

rogative. On one hand, it clearly recognizes the constitutional

right of the individual “to keep and bear arms,” and provides

that the right “shall not be infringed.” Yet, at the same time,

the section expressly sanctions “constitutional infringements” of

the mght pursuant to the “police power,” which is generally

understood to mean the power of state and local governments

to regulate and even prohibit conduct which is perceived to be

inimical to the safety, health and welfare of society. People v.

Warren, 11 IIll.2d 420, 424-25, 143 N.E.2d 28 (1957). Accord,

Drysdale v. Prudden, 195 N.C. 722, 143 S.E. 530, 536 (1928);

Liquor Control Commission v. City of Calumet City, 28

Ill.App.3d 279, 283, 328 N.E.2d 153 (1st Dist. 1975).

The plaintiffs have advocated a broad and liberal inter-

pretation of the individual right to keep and bear arms, and a

restrictive view of the scope of the police power. That power,

they insist, must not be interpreted in a manner which would

allow it to circumscribe the individual nght contained in section

22. The defendant disagrees. Morton Grove argues that since

the individual right in section 22 is made expressly subject to

the broad power of the legislature, that mght should be

construed narrowly, and the police power should be interpreted

according to its usual and customary meaning, free from

artificially-imposed restrictions. Because the language con-

tained in section 22 itself offers no clue as to the proper

reconciliation of these two competing concepts, the court finds it

necessary to examine the provision’s constitutional history, the

source traditionally relied upon for the clarification of am-

biguous constitutional provisions. See Cosentino v. County of

Adams, 82 Ill.2d 565, 46 Ill.Dec. 116, 413 N.E.2d 870 ( 1980):

Client Follow-Up Co. v. Hynes, 75 Ull.2d 208, 28 Ill.Dec. 488,

390 N.E.2d 847 (1979); Wolfson v. Avery, 6 Ill.2d 78, 126

38a

N.E.2d 701 (1955); Davis v. Attic Club, 56 Ill.App.3d 58, 13

Ill.Dec. 811, 371 N.E.2d 903 (Ist Dist. 1977).

While it is true that there are several sources upon which

one might draw in reviewing the constitutional history of a

provision, “the practice of consulting the debates of the mem-

bers of the convention. . . has long been indulged in by courts

as aiding to a true understanding of the meaning of provisions

that are thought to be doubtful.” Burke v. Snively, 208 Ill. 328,

344-45, 70 N.E. 327 (1904), quoted with approval in Coalition

for Political Honesty v. State Board of Elections, 65 [\l.2d 453,

467, 3 Ill.Dec. 728, 359 N.E.2d 138 (1976); Wolfson v. Avery, 6

Ill.2d at 88, 126 N.E.2d 701; Davis v. Attic Club, 56 Ill.App.3d

at 67-70, 13 Ill.Dec. 811, 371 N.E.2d 903. In this case, the court

has found the delegates’ debate on section 22 helpful to a

meaningful reconciliation of the individual’s right to arms and

the state’s broad police powers.

Prior to the delegates’ floor debate on section 22, the Bill of

Rights Committee voted twelve to three to include the follow-

ing right to arms provision in the new constitution:

Subject only to the police power of the State, the

night of the individual citizen to keep and bear arms

shall not be infringed.

Vol. 6, Record of Proceedings, Sixth Illinois Constitutional

Convention [hereinafter “Proceedings’’] 84.2 Leonard Foster,

the spokesman for the majority of the committee, was respon-

sible for explaining the provision to the delegates. Although his

explanation necessitated a narrow construction of the individ-

ual’s right to arms, Foster suggested a resolution of the

apparent tension between the section’s terms. According to

Foster, section 22 stood only for the limited right of the

individual citizen to keep and bear “some form” of firearm; and

as long as the government, in the exercise of its police power,

did not totally prohibit the possession of all firearms, the right

2 In order to avoid any possible question as to whether the police power

could be exercised by local governments, the delegates ultimately amended

the proposed provision to delete the words “of the State” from the clause

“Subject only to the police power." No challenge has been raised in this case

regarding Morton Grove’s ability as a local government to exercise that

power.

39a

provided for in section 22 was not violated. 3 Proceedings at

1687, 1689, 1718 (remarks of delegate Foster).

Although the right to arms described by delegate Foster

might have appeared on its face to be evanescent, Foster told

the convention that under the 1870 Illinois Constitution, which

contained no right to arms provision at all, a total prohibition of

firearms was possible, and that the proposed section was

designed to do no more than eliminate that possibility:

It could be argued that, in theory, the legislature now

has the night 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. Nothing further.

3 Proceedings at 1688. Later in the debate, Foster emphasized

just how limited the proposed right to arms would be:

[SJhort 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.

* * - * * ad

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.

3 Proceedings at 1718 (order inverted). Foster characterized

the committee as “very reluctant” to include any right to arms

provision at all in the new constitution, 3 Proceedings at 1687,

and indicated clearly in his remarks that once the committee

finally decided to include such a provision, that provision was

intended to be construed narrowly, and fully subject to the

broad police power.

During the debate, several of the delegates questioned

Foster specifically with respect to the meaning of the term

“police power” in the context of section 22, and any limitations

which section 22 might impose upon the legislature. Foster was

unequivocal: Section 22 would restrain no exercise of the

40a

legislature’s power short of an absolute ban on all firearms.

That statement prompted the following exchange:

MR. FAY: Well, is that the extent of it?

MR. FOSTER: This is the extent of it, Mr. Fay.

7 * . * * *

MRS. LEAHY: For a while, I had thought that perhaps

the proposal might be a nullity—that you granted the right, but

it could be taken away under the police power. According to

your answer to the question asked by Mr. Fay, there is one

exception to that police power [being] exercised, and ‘hat

would be the total taking away?

MR. FOSTER: Right.

= . . * . *

MRS. LEAHY: Well, then you have total abolition and

total right; and somewhere in between there, there are grada-

tions.

MR. FOSTER: No, we don’t have total abolition versus

total mght. We have total abolition versus limited mght—right

limited by the police power extending up to but not including

total abolition.

MRS. LEAHY: Anything short of total abolition [that] is

justified as reasonable for the safety, then, would be approved

under your proposal?

MR. FOSTER: Yes, in the opinion of the majority.

3 Proceedings at 1688. Clearly, section 22 was presented to the

delegates as recognizing a narrow individual mght which was

subject to substantial legislative control.

From a review of the remarks of the delegates which

followed Foster’s explanation, it is clear that whatever their

individual feelings about the right to arms, there was very little

disagreement about the effect of making that nght subject to the

police power. As the debate progressed, two principal views

emerged with respect to the meaning of the right to arms

provision in section 22. One group of delegates supported the

section, and seemed to adopt the view of the majority of the

4la

committee that section 22 represented only a narrow right, and

limited virtually no exercise of the police power short of a total

ban on all firearms. Typical of this group was delegate Durr:

{H]and guns are by far and away the problem in this

country and in this state, where there is a problem

with firearms or arms of any kind. This document

[Section 22] does not in any way attempt or intend,

as I read it and as I suspect the courts would read

it—and I’ve done some research on this—would not

restrict the state or the county or the city or any other

government within the confines of a reasonable—that

is the key word, reasonable—control over hand guns.

And I submit to you that that would include the

prohibition, if they reasonably determined that hand

guns were an undue hazard.

3 Proceedings at 1717-18. See also 3 Proceedings at 1709

(remarks of delegate Elward: “the plain language of the

majority proposal . . . denies almost nothing that the General

Assembly or any city council could do in the future.”’)

A second group of delegates saw little distinction between

a limited right to keep “some form” of arms, and no nght to

arms at all. While in apparent agreement with the committee

view that section 22 provided very little protection of an

individual’s rights in the face of a proper exercise of the police

power, this group criticized the majority provision as being

totally illusory. E.g., 3 Proceedings at 1697 (remarks of

delegate Weisberg). Some of those delegates favored no right

to arms provision at all, and voted for the minority proposal to

exclude any right to arms provision from the constitution. £.g.,

3 Proceedings at 1713 (remarks of delegate Tomei), 1720

(remarks of delegate Thompson). Others supported a strong

constitutional right to arms, and eventually voted for the

majority proposal, but only after making it clear to the con-

vention that they felt it too weak. See 3 Proceedings at 1708

(remarks of delegate Friedrich: “Frankly, I don’t think what

we're putting in. . . is strong enough. .. . [MlJany of [the

states’] constitutional provisions are much more enabling than

the one that’s proposed here.”); 1704 (remarks of Father

42a

Lawlor, proposing, inter alia, the removal of the term “police

power” from the provision). Most of those delegates acknowl-

edged that the inclusion of the term “police power” substan-

tially undercut the right to arms. 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.

The plaintiffs, in urging the court to reject a narrow

construction of the right to arms, have sharply criticized any

significant reliance on the constitutional debates. First, they

argue that emphasis on the debates is misplaced because the

true inquiry in resolving constitutional ambiguities is to deter-

mine “the understanding. . . by the voters who, by their vote,

have given life to the product of the convention.” Cosentino v.

County of Adams, 82 IIl.2d at 569, 46 Ill.Dec. 116, 413 N.E.2d

870. See also Client Follow-Up Co. v. Hynes, 75 Ill.2d at 222, 28

Ill.Dec. 488, 390 N.E.2d 847; Wolfson v. Avery, 6 Ill.2d at 88,

126 N.E.2d 701. But see Winokur v. Rosewell, 83 Ill.2d 92, 100-

102, 46 Ill.Dec. 671, 414 N.E.2d 724 (1980) (relying on

framers’ intent to clarify ambiguous constitutional provision ).9

To determine the voters’ understanding, the plaintiffs have

requested the court to consider such additional sources as: (1)

The Official Explanation of section 22 which was provided to

the voters prior to ratification of the constitution; (2) News-

paper articles written at around the time of the ratification vote

discussing the right to arms provisions; and (3) The “plain

meaning” which ordinary voters might have attributed to the

term “police power.” None of those sources, however, mean-

ingfully addresses the reconciliation of individual right and

legislative power which section 22 requires.

3 It must be emphasized that the cases relied upon by the plaintiffs do not

support outright rejection of the delegates’ debate as a source of information,

but only suggest the consideration of alternative sources as an aid to resolving

constitutional ambiguities. See Client Follow-Up Co. v. Hynes, 75 Ill.2d at 220,

28 Ill.Dec. 488, 390 N.E.2d 847: “When the meaning of provisions of the

constitution are in doubt, it is appropriate to consult the debates of the

delegates to the constitutional convention to ascertain the meaning which they

intended to give those provisions.” See also, Wolfson v. Avery, 6 Ill.2d at 88,

126 N.E.2d 701.

43a

The “Official Text of the Proposed 1970 Illinois Con-

stitution with Explanation” provides:

Section 22 Right to Arms

Subject only to the police power, the mght of the

individual citizen to keep and bear arms shall not be

infringed.

Explanation

This new section states that the right of the citizen to

keep and bear arms cannot be infringed, except as

the exercise of this mght may be regulated by appro-

priate laws to safeguard the welfare of the commun-

ity.

Even taking the “Official Explanation” into consideration, the

court is unconvinced of the plaintiffs’ position. Far from

reconciling the tension between the exercise of the individual

right and the exercise of the police power, the above ex-

planation begs the question. Like the text of the section itself,

the explanation offers no clue as to the limits on the police

power. See Davis v. Attic Club, 56 Ill.App.3d at 67, 13 Ill.Dec.

811, 371 N.E.2d 903 (rejecting reliance on the “Official Ex-

planation of the 1970 Proposed Constitution” as being too

conclusory and superficial ).

Similarly, the court can find no meaningful reconciliation

of the two concepts in the Chicago Tribune article of December

13, 1970, which referred to the new right only sketchily as a

“new right... to keep and bear arms,” and summarized section

22 as providing “a guarantee of the individual’s nght to own

firearms.” No attention at all is devoted to the critical issue of

interpretation as to the limit on the police power.

Finally, the suggestion that the right to arms warrants a

liberal reading because that is how “the people” would read it

must be rejected. According to this argument, the voters did

not understand the full import of the term “police power” when

they ratified the constitution. Instead, they most likely thought

that they were ratifying a broad right to arms, one which would

not tolerate a total handgun ban. Therefore, the plaintiffs argue

44a

that the court should give effect to the public’s perception of the

right rather than its actual meaning. The court cannot agree.

Section 22 says explicitly that the individual right is subject to

the police power. The Illinois Supreme Court has defined that

term to include the power “to prohibit.” People v. Warren, 11

Ill.2d at 424-25, 143 N.E.2d 28. Sound principles of construc-

tion require that “in those instances in which [the Illinois

Supreme Court], prior to the adoption of the constitution of

1970, has defined a term found therein, that it be given the

same definition, unless it is clearly apparent that some other

meaning was intended.” Bridgewater v. Hotz, 51 Ill.2d 103, 109,

281 N.E.2d 317 (1972). The plaintiffs’ arguments to the

contrary are incorrect.

The plaintiffs’ final attack on the debates concerns the

conflict between certain language in the Bill of Rights Com-

mittee majority report on section 22 and the position taken by

the committee on the floor of the convention. The plaintiffs

refer the court to the following language in the report:

The substance of the right [contained in Section 22]

is that a citizen has the nmght to possess and make

reasonable use of arms that law-abiding persons

commonly employ for purposes of recreation or the

protection of person and property. Laws that at-

tempted to ban all possession or use of such arms, or

laws that subjected possession or use of such arms to

regulations or taxes so onerous that all possession or

use was effectively banned, would be invalid.”

6 Proceedings at 87, citing People v. Brown, 253 Mich. 537, 541-

42, 235 N.W. 245, 246-47 (1931); State v. Duke, 42 Tex. 455,

458 (1875); In re. Brickey, 8 Idaho 597, 70 P. 609 (1902);

People v. Zerillo, 219 Mich. 635, 189 N.W. 927 (1922); State

V. Kerner, 181 N.C. 574, 107 S.E. 222(1921). The plaintiffs

argue first that those cases, decided under other states’ con-

stitutions, support their conclusion that the police power should

be read restrictively. Second, they argue that the mere fact that

those cases were included in the committee report serves as an

indication of the delegates’ intent that the police power should

45a

be narrowly constructed, contrary to the intent expressed on the

convention floor. The court rejects both of these arguments.

While the language used in some of these cases supports

the text used in the report, the cases themselves were decided

under distinctly different constitutional provisions. In re

Brickey, for example, was decided 80 years ago, under a state

constitutional provision which stated:

The people have the right to bear arms for security

and defense, but the legislature shall regulate the

exercise of this night by law.

70 P. at 609. In its opinion in Brickey, the Supreme Court of

Idaho held only that the inclusion of the term “regulate” in the

Idaho Constitution did not permit the legislature to prohibit

persons from carrying firearms. Jd. The framers of the Illinois

Constitution did not choose to use the term “regulate” to limit

the Illinois right to arms. Instead, they used the expression

“subject to the police power,” which the Illinois Supreme Court

had already held to include the power to prohibit. See People v.

Warren, supra. In fact, the Illinois Supreme Court had already

stated that the police power specifically included the power to

prohibit firearms. Biffer v. City of Chicago, 278 Ill. 562, 116

N.E. 182 (1917). By including an express police power

limitation, the Illinois right to arms provision is simply different

from those of the other states.

A further distinction between section 22 and the other

provisions is that the Illinois mght to arms provision has a clear

constitutional history which supports a narrow reading of the

right to arms. No such constitutional history is mentioned in

the two-paragraph Brickey opinion, or in the other cases cited

by the plaintiffs. E.g., State v. Kerner, supra. For these reasons,

the court finds the cases decided under other states’ con-

stitutional provisions unpersuasive in this case.

Although the cases decided under other states’ con-

stitutions were mentioned in the committee report, little can be

concluded merely from the fact of their mention in the report.

For, on the very page following its citation of Jn re Brickey, the

46a

report quoted with approval the following language from the

Illinois Supreme Court opinion in Biffer v. City of Chicago:

It is clear, under the authorities, that the sale of

deadly weapons may be absolutely prohibited under

the police power of the State, and to do this in no

way conflicts with the provisions of the constitution of

the United States and of various state constitutions

that “the people have a right to bear arms for their

defense and security.”

278 Ill. at 570, 116 N.E. 182. 6 Proceedings at 88. The

majority report then added:

Because arms pose an extraordinary threat to the

safety and good order of society, the possession and

use of arms is subject to an extraordinary degree of

control under the police power.

6 Proceedings at 88. Contrary to the plaintiffs’ arguments, the

views contained in the committee report are certainly consistent

with the narrow reading of the mght to arms expressed so

clearly by the delegates on the floor of the convention.

Nothing in the committee report persuades the court to dis-

regard the clear expression of the delegates’ intent contained in

the debates.

After carefully reviewing the constitutional history of sec-

tion 22, including the actual language used in the provision, the

text of the convention debates, the committee report, and the

other sources discussed above, the court concludes that the right

to arms in Illinois is so limited by the police power that a ban

on handguns does not violate that right. On at least five

occasions, the convention debates indicated that such a ban

would not be unconstitutional, 3 Proceedings at 1687, 1689,

1693, 1718, and the court agrees with that assessment. Further-

more, the court concludes that as long as a law does not totally

ban all firearms, it must only qualify as a valid exercise of the

police power in order to survive constitutional challenge under

4 Similarly, the report’s failure to list a handgun ban among its illustra-

tions of such applications of the police power is not necessarily inconsistent

with the committee’s view during the debate. The report explicity indicated

that its list of illustrations was intended to be non-exhaustive.

47a

section 22. Therefore, the narrow question remaining for the

court is whether Morton Grove’s enactment was a proper

exercise of the police power.

By banning the possession of handguns by private citizens

within its borders, Morton Grove has gone further than either

the state legislature or any other municipality in gun regulation,

either before or after the inclusion of a right to arms in the

Illinois Constitution. Therefore, it is necessary to give ex-

tremely careful consideration to the permissible limits of the

police power as applied to the sweeping provisions of this

ordinance.

Despite the fact that no other court has been called upon to

consider a handgun ordinance of this scope, this court, when

considering the police power of the state or municipality, is not

writing on a blank slate. The Illinois Supreme Court has

recently considered and restated the guiding principles by

which this court must be led in its review of an enactment under

the police power. See City of Carbondale v. Brewster, 78 I\|.2d

111, 34 Ill.Dec. 832, 398 N.E.2d 829 (1979), appeal dismissed,

446 U.S. 931, 100 S.Ct. 2145, 64 L.Ed.2d 783 (1980). The

Carbondale court stated the following:

The police power may be exercised to protect the

public health, safety, morals, and general welfare or

convenience.... To be a valid exercise of police

power, the legislation must bear a_ reasonable

relationship to one of the foregoing interests which is

sought to be protected, and the means adopted must

constitute a reasonable method to accomplish such

objective .... Although the determination of reason-

ableness is a matter for the court, the legislature has

broad discretion to determine not only what the

interests of the public welfare require but what

measures are necessary to secure such _inter-

est.... The court will not disturb a police regulation

merely where there is room for a difference of

opinion as to its wisdom, necessity and expediency.

Id. at 114-15, 34 Ill.Dec. 832, 398 N.E.2d 829

( citations omitted ).

48a

See also People v. Haron, 85 Ill.2d 261, 279-80, 52 Ill.Dec. 625,

422 N.E.2d 627 (1981) (“[T]he standard of a proper exercise

of the police power is whether the statute is reasonably

designed to remedy the evils which the legislature has deter-

mined to be a threat to the public health, safety and general

welfare.” (citation omitted ) ).

Certainly, there can be no question that the Morton Grove

ordinance is oriented to those interests which are proper aims of

any exercise of the state’s police power. The preamble to the

ordinance demonstrates that the public health and safety were

uppermost in the minds of the Trustees of Morton Grove. The

preamble states:

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 firearms related deaths and

injuries, and

WHEREAS, handguns play a major role in the commis-

sion of homicide, aggravated assault, and armed robbery, and

accidental injury and death.

The public health and safety are proper police power

objectives. Illinois courts have consistently held firearms

controls to be within the purview of the police power. See

Brown v. City of Chicago, 42 Ill.2d 501, 250 N.E.2d 129 (1969)

(declaring Chicago firearms registration ordinance valid); Bif-

fer v. City of Chicago, supra (declaring Chicago ordinance

restricting sale of concealable weapons valid); Rawlings v.

Department of Law Enforcement, 73 Ill.App.3d 267, 29 Ill.Dec.

333, 391 N.E.2d 758 (3d Dist. 1979) ( declaring Illinois statute

prohibiting, inter alia, former mental patients from obtaining

gun licenses to be a valid exercise of the police power); People

v. Williams, 60 Ill.App.3d 726, 18 Ill.Dec. 132, 377 N.E.2d 285

( Ist Dist. 1978) (declaring Illinois concealed weapons statute

49a

valid). Here, too, the court concludes that Morton Grove’s

firearms ordinance is properly related to the public health and

safety.

The above finding that the interests sought to be protected

by the Trustees of Morton Grove may properly be the targets of

an exercise of the police power does not end this court’s inquiry.

The question remains whether the Morton Grove ordinance,

which effectively bans the possession of any handguns, is a

reasonable method of promoting the interests of public health

and safety.

The plaintiffs suggest in the strongest possible terms that

this requirement for a proper exercise of the police power has

not been met here. They argue that the ordinance does not

reflect a reasonable response to the problems of weapons

misuse, but rather is an arbitrary and simplistic response,

resulting in an unreasonable and capricious exercise of the

police power.

Morton Grove defends its ordinance as a reasonable

legislative response to the very serious problem of handguns in

our society, and disputes the characterization of its ordinance as

a total prohibition of firearms, or even handguns. By its terms,

the ordinance (1) excludes “long guns” such as shot guns and

rifles from its proscriptions; (2) exempts certain individuals,

such as peace officers, members of the armed forces, and

licensed gun collectors, from many of the ordinance’s restric-

tions; and (3) allows the continued recreational use of hand-

guns under certain conditions, at licensed gun clubs. The

inclusion of those exceptions, the Village argues, indicates that

the Trustees attempted to construct an ordinance broad enough

to effectuate its objective of protecting public safety without

unnecessarily restricting the possession and use of firearms.

In reviewing the reasonableness of Morton Grove’s ordi-

nance, it is necessary to recognize certain important limitations

on the court’s review function. First, it is not the role of the

court to test the factual validity of the findings which support an

exercise of the police power. That is a uniquely legislative

50a

responsibility. The Illinois Supreme Court made this very clear

when it ruled on the validity of Chicago’s gun registration

ordinance in 1969:

Plaintiffs argue at length that strict gun laws do not

tend to reduce crime, and statistics and excerpts from

reports of surveys are quoted to show that legal

restrictions are easily circumvented by experienced

criminals.... These arguments, whatever validity

they might have, are not appropriately addressed to

this court. They relate to matters of legislative

instead of judicial concern, and bear on the advis-

ability of the present provisions rather than on their

validity.”

Brown v. City of Chicago, 42 Ill.2d at 507, 250 N.E.2d 129. This

court is not free, in reviewing Morton Grove’s ordinance, to

reexamine and reweigh the evidence upon which the legislative

decision was premised.

In addition, the court is not to decide whether the means

selected by the legislature are the best way to deal with the

perceived problem, or whether other alternatives available

would have been better. As quoted above, “The court will not

disturb a police regulation merely where there is room for a

difference of opinion as to its wisdom, necessity, and ex-

pediency.” City of Carbondale, 78 Ill.2d at 115, 34 Ill.Dec. 832,

398 N.E.2d 829. See Memorial Gardens Assoc. v. Smith, 16

Ill.2d 116, 156 N.E.2d 587, appeal dismissed, 361 U.S. 31, 80

S.Ct. 121, 4 L.Ed.2d 98 (1959); State Dental Society v. Sutker,

76 Ill.App.3d 240, 32 Ill.Dec. 67, 395 N.E.2d 14 (Ist Dist.

1979), cert. denied, 447 U.S. 930, 100 S.Ct. 3029, 65 L.Ed.2d

1124 (1980).

The appropriate test is one of arbitrariness. City of

Carbondale, 78 Ill.2d at 115, 34 Ill.Dec. 832, 398 N.E.2d 829.

A prediction that the present ordinance may not be a panacea

for all of the problems arising from the possession and use of

handguns would not prove the plaintiffs’ contention that this

ordinance is arbitrary and simplistic. If the present ordinance

was adopted on the expectation of the Trustees that it would

serve to inch the Morton Grove community one step further to

be coming peaceable and safe, this would justify the use of the

Sla

police power. Many social experiments have only small

beginnings.

The issue of whether or not private citizens should be

allowed to possess handguns freely, whether for their own

defense or for other purposes, has constantly been in the

political arena. Plaintiffs themselves have presented substantial

material to this court showing that the question was con-

troversial in England as early as the 1600’s. Certainly it was a

very important issue in the debates of the Illinois Constitutional

Convention, as is shown by the preceding review of those

debates. The Trustees of the Village of Morton Grove could

not have been unaware of the existence of the handgun debate.

In addition, the Morton Grove Trustees were entitled to

take notice of a recent Illinois case in which the instant

provision of the Illinois Constitution was discussed. People v.

Williams, supra, involved a prosecution under the Illinois

Criminal Code for knowing possession within a city of “any

loaded pistol, revolver or other firearm.” 60 Ill.App.3d at 727,

18 Ill.Dec. 132, 377 N.E.2d 285. An exception in that statute

allowed possession by an individual in his own home or place

of business. The defendant in that case had in his possession a

.32-caliber pistol loaded with four rounds of live ammunition

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