# Petition — George L.Reichert and Robert E. Metler v. Village of Morton Grove, 695 F.2d 261 (1982) (No.82-1930) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1026%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1982 ## Text 8 3. e 1 93 0 { ~~ ee US. 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, V. 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 i 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. ll 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) 17 13 12 passim 12 4,9 4 passim 6 7,10 14 14 14 14 14 14 17 15 13 17 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 Vi III The Public Records of the Colony of Conn. (C. Ee 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) 17 17 17 17 17 17 17 16 17 17 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) 17 17 16 17 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. 2 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. 3 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 4 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. 5 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. 6 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 ). 9 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. 10 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. 12 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. 13 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. 14 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. 15 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 16 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). 18 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 la 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) 2a 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) 3a I Victor D. Quilici initially challenged Ordinance No. 81-11 in state court. Morton Grove removed the action to federal court where it was consolidated with two similar actions, one (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. (C) Subsection B(1) shall not apply to or affect any peace officer. (D) Subsection B(2) shall not apply to or affect the following: (1) Peace officers; (2) Wardens, superintendents and keepers of prisons, penitentiaries, jails and other institutions for the detention of persons accused or convicted of an offense; (3) Members of the Armed Services or Reserve Forces of the United States or the Illinois National Guard, while in the performance of their official duties; and (4) Transportation of machine guns to those persons authorized under Subparagraphs (1) and (2) of this subsection to possess machine guns, if the machine guns are broken down in a non-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) 4a 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. Sa 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. 6a 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. II We consider the state constitutional issue first. The Illinois Constitution provides: Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed. Ill. Const. art. I, §22. The parties agree that the meaning of this section is controlled by the terms “arms” and “police power” but disagree as to the scope of these terms. Relying on the statutory construction principles that 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 7a 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. 8a 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. 9a 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. IV Finally, we consider whether Ordinance No. 81-11 violates the ninth amendment. Appellants argue that, although the right to use commonly-owned arms for self-defense is not explicitly listed in the Bill of Rights, it is a fundamental right protected by the ninth 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 V 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.C [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1026%3A1. Public record. Not legal advice.