Petition — Robert Stengl, Martin Gutenkauf, Alice Gutenkauf, Walter J. Dutchak and Geoffrey LaGioia v. Village of Morton Grove, Illinois
Supreme Court brief1983
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Office- Supreme Court, U.S.
82-1934 SILLE DS
MAY 28 1983
” ALEXANOER L. STEVAS,
CLERK
In the
Supreme Count of the United States
OCTOBER TERM. 1983
ROBERT STENGL, MARTIN GUTENKAUF, ALICE GUTENKAUF
WALTER J. DUTCHAK 2" GEOFFREY LAGIOIA
Petitioners,
VILLAGE OF MORTON GROVE. ILLINOIS.
Respondent
PETITION FOR WRIT OF CERTIORARI
to the United States
Court of Appeals for the Seventh Circuit
DON B. KATES, JR
BENENSON, KATES & HARDY
1 California St., Suite 2535
San Francisco, CA 94111
(415) 433-5300
Counsel for Petitioners
QUESTIONS PRESENTED
1. Whether the Second and Fourteenth Amendments bar a
municipality from prohibiting the home possession of hand-
guns by the citizenry, and confiscating the same.
2. Whether penumbral privacy, and particularly the “castle
doctrine” of the Fourth Amendment, allow a municipality to at
once deny responsibility for protecting its residents’ homes
and prohibit them from possessing the means to do so.
3. Whether the court below should have abstained to allow
the determination by the state courts of the state constitutional
challenge to the same municipal ordinance.
PARTIES
Appellants-Plaintiffs Below:
Robert Stengl, Martin Gutenkauf, Alice Gutenkauf, Walter J.
Dutchak and Geoffrey La Gioia are the only direct parties to
this appeal. In the district court their case was consolidated
with two others and on appeal the cases were jointly heard. It
is our understanding that separate petitions are being filed by
the plaintiffs-appellants in those cases.
Appellee-Defendant Below:
Village of Morton Grove, Illinois.
i]
TABLE OF CONTENTS
Question Presented... . Baek ee
Parties Affected... ee DO ge a:
Se
Jurisdiction-Citation of Opinions Below. . ee
Constitutional and Statutory Authority Relied Upon... .
Statement of the Case. eee
Argument. . ee Cee
|. Although the decision below accords with
most modern academic analysis, it conflicts
both with the original u understanding and the
emerging scholarship of the Second
Amendment : Te re
Il. The Second Amendment's text absolutely
compels an individual right interpretation
Il]. The legislative hist tory absolutely compels an
individual right interpretation of the Second
Amendment ....................00.,
IV. This Court has recognized that the Second
Amendment guarantees an individual right
V. The Amendment is not obsolete nor (if it
were) would it be the pi ie of the
idiciary to read it out of the Constitution by
‘efus sing to enforce it ..................
VI. Ordinance 81-11 violates the ‘castle
doctrine’ which is central to the Fourth
Amendment and penumbral to several
others .... pee See eee nee eueeucse,
Conclusion... a ee ee ee rn
Appendices . . , ee ere
ho
o-
TABLES OF AUTHORITIES
Cases
Anonymous 1353, 26 Liber Assisarum, (Edw. Ill), fol.
123, pl. 23.
(C.B. 1744), --------------
21
Anonymous, 21 Hen. VII, fol. 39, pl. 50 21
Aymette v. State, 2 Humphreys, Tenn. 154, 158. 15
City of Meridian v. Southern Bell Telephone and
Telegraph, 358 U.S. 639 (1959). 3
City of Salina v. Blaksely, 83 Pac. 61 (1905).------------ 15
Colautti v. Franklin, 439 U.S. 379, (1979). ---------eeeeeeneneneneeeeeee }
Dhutti’s Case, Northumberland Assize Rolls (1255),
88 Publications of Surtees Soc 94 (1891 ).-------------------------- 2]
Duncan v. Louisiana, 391 U.S. 229 (1963).----------------------------- 7
Ex parte Grossman, 267 U.S. 87 (1925).-------------------------------- 1]
Griswold v. Connecticut, 381 U.S. 479 (1965).----------------------- 2]
Harris County Commissioners Court v. Moore,
420 U.S. 717 (1975) -------------nnnne ence cece cen n cence cece cece eeeeeeneneeenee 3.4
Jamison v. City of Chicago, 48 Ill. App. 3d 567 (1977).---------- 22
Kalodimos v.. Village of Morton Grove, IL, Ill.
Court of Appeals, Third Div. (Feb. 9, 1983).------------------------ 3
Lovell v. Griffin, 303 U.S. 444 (1938).---- 25
Malloch v. Eastly, 7 Mod. 482, 87 Eng. Rep. 1370
12
Metromedia v. San Diego, 453 U.S. 490 (1981). 25
Miller v. Texas, 153 U.S. 535 (1894). 4
Palko v. Connecticut, 302 U.S. 319, (1937). 7
Paris Adult Theater / v. Slaton, 413 U.S. 49 (1973).---------------- 2]
Payton v. New York, 445 U.S. 573 (1980). 21,22
Powell v. McCormack, 395 U.S. 486 (1969). 14
Presser v. Illinois, 116 U.S. 252 (1886). 4
Rankin v. Howard, 633 F. 2d 844 (9 Cir. 1980). 20
Reetz v. Bozanich, 397 U.S. 82 (1970). 3
Rex v. Compton, 22 Liber Assisarum pl. 55 (1347).--------------- 21
Rex v. Gardner, 7 Mod. 279, 87 Eng. Rep. 1240
IZ, is
(K.B. 1739).
iV
Semayne’'s Case, 5 Coke Rep. 91a (1603). ----------------------------- 2]
Stanley v. Georgia, 394 U.S. 557 (1969). —21, 22, 24
United States v. Miller, 307 U.S. 174 (1939).----------------------- ™ 15
United States v. Orito, 413 U.S. 139 (1973),--------------------------- 2]
Warren v. District of Columbia, 444 A. 2d 1 (1981).--------------- Ze
Constitutional Provisions
U.S. Const. Art. 1, §8 (15, 16)--------------------------------------------- 1,10
U.S. Const. Art. 1, §9 (3)-----------------------------eeecneeen------------------ 10
U.S. Const. Amend. |------------------------------------------------------207 1, 20
U.S. Const. Amend. II 3. 4,10, 13, 14, 15, 20
U.S. Const. Amend. IV—--------------------------------------------- i, 4, 21
U.S. Const. Amend. VIl—----——-------_-----__--____----...-.-__. 20
US. CORSE, ATTICIC, TX mann 10
U.S. Const. Amend. X--------------------------------------0--ss0-----oe----non- 10
U.S. Const. Amend. XIV--------------------------------------------------- i. 3.6
American Statutes and Ordinances
Village of Morton Grove, IL ordinance 81-] ].--------------- 2,3, A-1
First Militia Act (1 792), ------------------------------2--------22-eene22eeeeeneeees g
10 U.S.C. §31 1 (a). -------------------------------------------nnnnnnnneene-e-ee- 2 19
28 U.S.C. §1254,----------------------2----nnnnnccee cee ceeeeeneeenteeeneeneeeeeeeees 9
English Statutes
Forest & Game Act Of 167 | ,-------------------------------00----c00ee-eeceee 12
Commentaries and Other Authorities
Asbury, C. “The Right to Keep and Bear Arms”
(doctoral thesis, History, U. Mich., 1974),------------------+-------- 6
Baker. ‘I Remember—‘The Army’ With Men from 16
to 79", (Baltimore) SUN MAG. 46 (Nov. 16, 1975),-----------=- 20
V
Blackstone, W. COMMENTARIES ON THE LAWS
OF ENGLAND. 6, 12
BOSTON CENTENEL, July 4, 1789. 1]
II] HENRIC] DE BRACTION DE LEGIBUS
ET CONSUETUDINIBUS ANGLIAE, (Twiss ed. 1880).-12. 22
Brown, D. EULOGIUM UPON WILLIAM RAWLE (1837).---14
Bureau of Criminal Statistics (Calif.). HOMICIDE
IN CALIFORNIA (1981). 23
Caplan, D. The Right of the Individual to Bear Arms:
A Recent Judicial Trend, 1982 DETROIT COLL. OF LAW
REV. 791. 15
Clark, L. Reducing Firearms Availability:
Constitutional Impediments to Effective Legislation
and an Agenda for Research, FIREARMS & VIOLENCE:
ISSUES OF PUBLIC POLICY (Kates, ed.). 17
Coke, E. INSTITUTES (5th ed. 1671). 12,22
Coleman, M. ST. GEORGE TUCKER, CITIZEN OF
NO MEAN CITY. 14
Coxe, Tench. 1789 News article FEDERAL GAZETTE.
and PHILADELPHIA EVENING POST, June 18. 1789.
no. 68 of v.II, p.2, col.1. 1]
Farrard, M. THE LAWS AND LIBERTIES OF
MASSACHUSETTS 42 (1929 edition reprint from the
1648 ed.). fe)
FBI. UNIFORM CRIME REPORTS (1966, 1967. 1972),----------24
Germann, A.C. Police Partnership, CALIFORNIA
JOURNAL, (Nov. 1982). Zo
Halbrook, S. The Jurisprudence of the Second and
Fourteenth Amendments, 4 GEORGE MASON
U.L.REV. 1 (1981).
Halbrook, S. The Second Amendment As A
Phenomenon of Classical Political Philosophy,
FIREARMS & VIOLENCE (Kates, ed.). 6
Halbrook, S. To Keep and Bear “Their Private Arms’”
The Adoption of the Second Amendment, 1787-179].
10. N. KY. L. Rev. 13 (1982). 13
Hardy, The Second Amendment as a Restraint on
Vi
State & Federal Firearms Restrictions, RESTRICTING
HANDGUNS, Kates, ed. (1979). 6,7, 16
Hawkins, W. PLEAS OF THE CROWN (5th ed., 1771).------ 12
3 PATRICK HENRY 391 (1951). 1]
Hogg, |. and Weeks, J. MILITARY SMALL ARMS OF
THE 20th CENTURY (Digest Books, 1973).----- 16
Kates, Don B. RESTRICTING FIREARMS: THE LIBERAL
SKEPTICS SPEAK OUT (Irvington-On-Hudson, NY:
North River Press, 1979). 6, 7, 18,23, 24
Kates, Don B. FIREARMS AND VIOLENCE: ISSUES OF
PUBLIC POLICY (San Francisco, CA: Pacific Institute.
to be published Fall 1983). - -6,17
Kessler. Gun Control and Political Power. 5 LAW &
POLICY QUARTERLY *3 Guly 1983) -———.-_._____.... 17
Kleck and Bordua. The Factual Foundations of Gun
Control, 5 LAW & POLICY Q. #3 (July, 1983).——___-— 24
LaFave and Scott. CRIMINAL LAW. ----2 4
Levin. The Right to Bear Arms: The Development of the
American Experience, 48 CHI-KENT L. REV. 148 (1971).----
Levy. GUERILLA WARFARE (1964). ]
12 PAPERS OF JAMES MADISON (1979).-- 10,11
Malcolm, Joyce. The Right of the People to Keep and
Bear Arms: The Common Law Tradition, 10 HAST.
CONST. L. Q. (1983 forthcoming), ----------------------+e-o-eeeeoeees 12
Malcolm, Joyce. Disarmed: The Loss of the Right to Bear
Arms in Restoration England, (Radcliff College, 1980).------12
Marina, Weapons, Technology and Legitimacy. The
Second Amendment in Global Perspective,
(forthcoming in ISSUES OF REGULATION: Kates, ed.).----17
{
James Monroe Papers, N.Y. Public Library. 1]
NEW YORK PACKET, June 23, 1789.-- 1]
NEW YORK TIMES, Nov. 21, 1982. -23
Newton, G. and Zimring, F. FIREARMS AND VIOLENCE
IN AMERICAN LIFE (1970).----- ---23
Norman, A.V.B. THE MEDIEVAL SOLDIER 73 (N.Y.:
Crowell, 1971). ---- 6
Nowak, J. HANDBOOK ON CONSTITUTIONAL LAW
(Minn. West, 1978).
PHILADELPHIA EVENING POST, June 18, 1789. 1]
PHILADELPHIA FEDERAL GAZETTE, no. 68, v. II.------------- 1]
Rawle, W. A VIEW OF THE CONSTITUTION, (2d ed.
1829).- 14
THE RIGHT TO KEEP AND BEAR ARMS, a Report of the
Subcommittee on the Constitution of the Committee
on the Judiciary, U.S. Senate, 97th Congress,
2nd Session (1 982). ------------------------------------------------- 9, 13, 14
Rushforth, et al. Violent Death in a Metropolitan
County — Changing Patterns in Homicide (1958-1974),
297 NEW ENGLAND J. MED. 531 (1977).------------------------- 23
Schlegel, N. VIRGINIA ON GUARD, (Va. State Lib. 1949).--19
Shalhope. /deological Origins of the Second
Amendment, 69 J.AM.HIS. 599 (1982). ------------------------------- 6
Smith, James. “The Constitutional Right to Keep and
Bear Arms’, (3rd vear thesis, Law, Harvard, 1959).---8, 9, 13
Spellman and Brown. CALLING THE POLICE (Police
Exec. Res. Forum, 1980)._——_---—---------------—_-__--- 22
Story, J. COMMENTARIES ON THE CONSTITUTION (1833).14
Tucker, St. George. BLACKSTONE’S COMMENTARIES,
WITH NOTES OF REFERENCE TO THE CONSTITUTION
AND LAWS OF THE FEDERAL GOVERNMENT (etc.)
(1803). 14
U.S. HOME DEFENSE FORCES STUDY, (Office of the
Asst. Sec. of Defense, Mar. 1981). ---- 19
WORKS OF FISHER AMES. 1]
Wright, J. “The Ownership of Firearms for Reasons of
Self-Defense,” a paper delivered to the 1981 annual
meeting of the Amer. Soc. of Criminology. 23
Supreme Court of the United States
OCTOBER TERM. 1983
ROBERT STENGL, MARTIN GUTENKAUF. ALICE Gl TENKAUF
WALTER J. DUTCHAK #"¢ GEOFFREY LAGIO!
Petitioners
VS
VILLAGE OF MORTON GROVE, ILLINOIS
Respondent
PETITION FOR WRIT OF CERTIORARI
to the United States
Court of Appeals for the Seventh Circuit
To the Honorable Chief Justice and Associate Justices of the
Supreme Court of the United States:
Your petitioners ROBERT STENGL, MARTIN GUTENKAUF,
ALICE GUTENKAUF, WALTER J. DUTCHAK and GEOFFREY
LaGIOIA respectfully pray that a writ of certiorari be issued to
review the judgments and opinions of the United States Court
of Appeals for the Seventh Circuit and of the United States
District Court for the Northern District of Illinois, Eastern
Division — both of which are set out in Appendices A and B
hereto.
JURISDICTION-CITATION OF OPINIONS BELOW
The district court opinion is reported at 532 F. Supp. 1169
while that of the court of appeals appears at 695 F. 2d 261
2
The court of appeals denied our petition for rehearing en
banc on March 2, 1983 and the court’s mandate was returned
on March 11, 1983. This petition for certiorari is filed within 90
days of the earlier of those dates. This Court's jurisdiction is
invoked under 28 U.S.C. §1254(1).
CONSTITUTIONAL AND STATUTORY
AUTHORITY RELIED UPON
Second Amendment
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.
Title 10 U.S.C. $311
(a) The militia of the United States consists of all able-bodied
males at least 17 years of age and, except as provided in Sec-
tion 313 of title 32, under 45 years of age who are, or who have
made a declaration of intention to become, citizens of the
United States and of female citizens of the United States who
are commissioned officers of the National Guard.
(b) The classes of the militia are —
(1) the organized militia, which consists of the National
Guard and the Naval Militia; and (2) the unorganized militia,
which consists of the members of the militia who are not
members of the National Guard or the Naval Militia.
Morton Grove Ordinance 81-11
Respondent's ordinance is set out in Appendix A hereto as
footnote | to the court of appeals opinion
2
STATEMENT OF THE CASE
On June 8, 1981 the VILLAGE OF MORTON GROVE, IL-
LINOIS enacted Ordinance No. 81-11 to prohibit and con-
fiscate (with certain minimal exceptions) all handguns
possessed in the homes of its civilian residents.'! Three
lawsuits ensued, each challenging the ordinance under both
the Second/Fourteenth Amendments and an Illinois constitu-
tional right to arms provision. Although the first of these cases
was brought in state court, the VILLAGE removed to federal
district court which refused to abstain and/or remand. A se-
cond action (hereinafter the Kalodimos action) was initiated in
state court on purely state grounds, only to have the state court
abstain in deference to the federal court's assumption of
jurisdiction in the first case. Although several of the plaintiffs
involved in that action continued it through the state courts,’
several of the other Kalodimos plaintiffs responded by in-
itiating an action in the district court (hereinafter the
REICHERT action). Meanwhile petitioners STENGL et al. had
initiated an action in the district court which consolidated the
three separate actions thus before it.
The district court having upheld ordinance 81-11, all three
sets of plaintiffs appealed to the Seventh Circuit which heard
the cases jointly. Between them, the REICHERT appellants
and the STENGL appellants presented arguments for absten-
tion until the Illinois Supreme Court's decision on the state
issue? both to the original appellate panel and via a petition for
1. Morton Grove ordinance 81-11 is reprinted in Appendix at page A-1.
2. The slip opinion on Kalodimos v. Village of Morton Grove, Illinois
Court of Appeal, Third Division, (February 9, 1983) was me a part of the
record on rehearing en banc below by the VILLAGE,
3. See Harris County Commissioner's Court v. Moore, 42U \. 5. 77 (1975),
Askew v. Hargrave, 401 U.S. 476 (1971), Reetz v. Fo cnich, 397 U.S. 82
(1970), City of Meridian v. Southern Bell Telephone Telegraph, 358
U.S. 639 (1959).
4
rehearing en banc.‘ We invite this Court's attention to the
abstention issue, but do not argue it since (unless the Court
chooses to summarily reverse) the state issue will probably be
decided by the state supreme court before this Court can act.
ARGUMENT
Although their opinions extensively reviewed the state
issue, neither the district court nor the court of appeals
devoted much energy or reflection to resolving the Second
Amendment issue. Ostensibly, at least, they said only that
they are bound by certain 19th Century cases of this Court
which held that no portion of the Bill of Rights (specifically in-
cluding the First, Second and Fourth Amendments) is binding
upon the states.° The VILLAGE argues that the Second Amend-
ment merely retrenchs on the powers which the original Con-
stitution (Art. I, Sec, 8, Cls. 15 and 16) had given Congress over
the state militia; thus, since it was intended simply to protect
the arms of the state militias, it does not apply to the privately
owned arms of individuals, Seeing the Amendment as only a
protection for the states, the courts below naturally denied that
it is a matter of individual liberty which could be incorporated
against the states through the Due Process Clause.
I. Although the decision below accords with
most modern academic analysis, it conflicts
both with the original understanding and the
emerging scholarship of the Second Amend-
ment.—
4. Abstention, of course, may be raised at any stage of a case, by any par-
tv or by the court sua sponte. Harms County, supra 420 U.S. at 82-83, Col-
autti v. Franklin, 439 U.S. 379, n. 9 (1979) and cases there cited.
5. Presser v. Illinois, 116 U.S, 252 (1886) (First and Second Amendments
inapplicable to states), Miller 0. Texas, 153 U.S. 535 (1894) (same: Second
and Fourth Amendments)
9)
Petitioners STENGL’s argument relies upon the emerging
scholarship of the Second Amendment, particularly Dr. Joyce
Malcolm's seminal work in the English records which has
been underwritten by the American Bar Foundation, the Na-
tional Endowment for the Humanities and Harvard Law
School. Unfortunately neither her book nor Prof. Halbrook’s
are yet in print nor are many of the journals articles we rely
upon. All presently unpublished manuscripts will be supplied
to the Court on request, however, as they were to the court of
appeals.
It deserves special emphasis that we do not at all deny that
one of the Amendment's purposes was protecting the arms of
themilitia. Rather we point out that, in the Founding Father's
wis the “militia” encompassed the entire able-bodied male
population — and the arins of the militia were those which
each person was by law required to own for law-enforce-
ment/military purposes.° Since, therefore, the people were the
militia and its arms were the ones they individually owned, by
guaranteeing their right to keep them the Amendment was
guaranteeing both the militia and the individual citizenry
against any attempt to disarm them. The legal and
philosophical traditions to which the Founders were heir
taught them to regard the possession of arms as the insignia of
the free citizen,’ his most basic right-obligation being their use
6. United States v. Miller, 307 U.S. 174, 179 (1939) with emphasis added:
The signification attributed to the term Militia appears from the
debates in the [Constitutional] Convention, the history and
legislation of Colonies and States, and the writings of approved
commentators, These show plainly enough that the Militia
comprised all males physically capable of acting in concert for
the common defense...and further, that ordinarily when called
for service these men were expected to appear bearing arms
supplied by themselves and of the kind in common use at the
time.
See also note 15 infra.
7. In Greek, Roman and English law alike the mark of the he/ot or metic
was the denial of arms and ‘the ceremony of freeing a slave included the
6
to defend his nation, the law and his own liberty and security
against aggression — whether by foreign invasion, domestic
tyrants, or felonious attackers.’ It bears emphasis that the
possession of arms for defense against foreign enemies and
felons was an acknowledged personal right, derivative of the
entire corpus of philosophy known to the Founders which
regarded self-preservation as the most basic of natural rights.°
What was philosophically controversial (in the 17th Century,
though not to the Founders) was the right Locke and Sidney
extrapolated from the acknowledged right of arms possession
for self-defense — the right to possess and use arms in self-
defense against “enslavement” by tyrants.!°
Thus petitioners STENGL do not concentrate our argument
on the subsidiary question of whether the Amendment is
made applicable to the states through the Due Process Clause.
If we are correct that the Founders considered the right to arms
an essential personal liberty (as did the authors of the 14th
Amendment as well!'), its incorporation against the states
placing [of arms] in his hands...as a symbol of his new rank.” A. V. B. Nor-
man, THE MEDIEVAL SOLDIER 73 (N. Y. Crowell, 1971), W. Blackstone, |
COMMENTARIES ON THE LAWS OF ENGLAND, 400.
8. See generally Shalhope, /deological Origins of the Second Amend:
ment, 69 J. AM. HIS. 599 (1982). So deep was the era's attachment to the
concept of self-defense that divines taught that it was not just a right but an
obligation (to escape the guilt of suicide), while Locke viewed deadly force
as proper to repel simple assault. C. Asbury, “The Right to Keep and Bear
Arms” (doctoral thesis, History, U. Mich., 1974) 28, 39-40. See treatment of
Plato, Cicero, Machiavelli, Hobbes, Locke and Sidney in Halbrook, The Se-
cond Amendment as a Phenomenon of Classical Political Philosophy for-
thcoming in D. Kates (ed.) FIREARMS & VIOLENCE: ISSUES OF PUBLIC
POLICY (Ballinger, 1983) (hereinafter ISSUES OF PUBLIC POLICY).
9. Blackstone, for instance, considered “having arms for their defense”’
among the “absolute rights of individuals”, because it derived from “the
natural right of resistance and self-preservation when the sanctions of
society and law are found insufficient to restrain the violence of oppres-
sion.” | COMMENTARIES 121, 143-144.
10. Halbrook, supra.
11. See quotations and analysis in Hardy, The Second Amendment as a
od
{
necessarily follows under the Pa/ko'2 line of cases. It is only
because modern courts have taken the view of the Second
Amendment urged by a VILLAGE that they have held it inap-
plicable to the states. J. Nowak, et al. HANDBOOK ON CON-
STITUTIONAL LAW rf 1 (1978).
I]. The Second Amendment's text absolutely
compels an individual right interpretation —
To conclude that an exclusively state's right was intended re-
quires the anomalous assumption that the Framers. ill-
advisedly used the phrase “right of the people” to describe
what was being guaranteed when what they actually meant
was “right of the states”. Moreover, the phrase “the people”
appears in four other provisions of the Bills of Rights, always
denoting rights pertaining to individuals. So, to justify an ex-
clusively state's right view, the following further anomalies
must be indulged: (1) when Madison drafted the Bill of Rights
he used “right of the people” in the First Amendment to
guarantee a right to individuals (assembly); (2) But, some 16
words later, he used the same phrase in the Second Amend-
ment to denote an exclusively state’s right; (3) But then, 46
words later, in the Fourth Amendment he switched “right of
the people” back to its normal individual right meaning; (4) It
was again used in the normal sense in the Ninth Amendment:
and (5) Finally, the Tenth Amendment specifically
distinguishes “the states” from “the people”. Any one of the
textual incongruities demanded by an exclusively state’s right
position dooms it. Cumulatively they present a truly grotesque
reading of the Bill of Rights.
Restraint on State & Federal Firearm Restrictions in D. Kates (ed.) RESTRIC:
TING HANDGUNS: THE LIBERAL SKEPTICS SPEAK OUT, 180-181 (1979)
and Halbrook, The Jurisprudence of the Second and Fourteenth Amend:
ments, 4 GEORGE MASON U. L. REV. ! (1981).
12. Palko v. Connecticut, 302 U.S. 319, 325 (1937), Duncan v, Louisiana,
391 U. S. 145, 148-9 (1968) etc., ete.
8
Like the modern law review articles from which it derived
the exclusively state's right theory, the VILLAGE’s briefs below
avoid these anomalies - simply ignoring the Amendment's
text altogether. Virtually the only exclusively state’s right
theorist who discusses the actual language at all is P rof. Levin.*
He argues that in colonial statutory usage ‘bear arms’ referred
only to militiamen carrving their arms when mustered out for
duty; whereas Blackstone uses the phrase to “have” arms in
referring to individual possession of them = by. right.!
Remarkably Levin seems to have overlooked the fact that the
word the Am mendment uses to guarantee the possession of
arms is ‘keep’, while ‘bear’ refers only to taking them outside
the home. Ob. iously whatever negative pregnant m ie be in
ferred as to arms possession, had the Amendment used “bear
arms alone, disappears completely when “to keep” is added.
Had Levin explored the colonial statutory usage of “keep”,
he would have found his “‘to bear” argument confirmed, but in
a way which completely repudiates his argument as to posses-
sion. Smiths much more extensive statutory review, confirms
that “bear” was generally used to refer to the carrving of arms
by militiamen.'4 Since statutes referring to the carrving of arms
by individuals outside the militia context (e.g. statutes forbid-
ding Blacks and Indians to carry arms), invariably used the
word ‘carry’, he concludes that the guarantee of bearing arms
outside the home was limited to militia service.
In contrast, Smith finds “keep” used in colonial and early
state statutes to describe the possession of arms by individuals
in all contexts, not just in the course of militia service. Yes,
13. Levin, The Right to Bear Arms: The Devel pment of the Amenican Ex-
perience, 48 CHI-KENT L. REV. 148 (1971)
14. James M. Smith, “The Constitutional Right to Keep and Bear Arms”
(3rd year thesis, Law, Harvard, 1959) explores every statute related to arms
and/or the militia from the first colonial settlement through the First Militia
Act (1792). Statutory usage as to both “keep” and “bear” are treated at
42-55.
those subject to militia service (most of the adult male popula-
tion) were required to “keep” arms in their homes. But so also
were seamen, the overaged and others who were exempt from
militia service, but still required to have arms for law enforce-
ment and in case of dire emergency.'> Moreover, what Blacks
and Indians (who were emphatically not subject to militia ser-
vice) were forbidden to do was ‘keep’ arms in their homes. As
to the possession of arms by public agencies (not individuals)
that was the one context in which “keep” was not used: “only
occasionally, and then only in the 17th Century, are towns and
colony governments said to ‘keep the public arms.”"'
In short, based on 18th Century usage, Smith concludes
that the Amendment's guarantee is plainly individual in
nature, and that it extends to the keeping of small arms for any
legitimate purpose — but that individuals may carry them out-
side the home only in the course of militia service.
4
Additional textual evidence of the unsoundness of the ex-
clusively state's right position is that it renders the phrase “to
keep” in “to keep and bear’ redundant — as Levin's
obliviousness to it unconsciously dramatizes. If the Framers’
only concern had been to protect the militias right to have
arms when actually mustered, ‘to bear’ would have sufficed.
The words “to keep” take on meaning only if what is being
For instance, THE LAWS AND LIBERTIES OF MASSACHUSETTS 42
15
(M. Farrard ed. 1929. reprinted from the 1648 ed.) provided: “But all per-
sons exempted whatsoever as foresaid, except Magistrates and Teaching
Elders shall be provided of Arms and Ammunition, as other men are.” See
generally the statutes detailed in THE RIGHT TO KEEP AND BEAR ARMS,
a Report of the Subcommittee on the Constitution of tie Committee on tie
ludiciarv. United States Senate, 97th Congress, 2nd Session at 3 (1982)
(hereinafter REPORT OF THE SENATE SUBCOMMITTEE ON THE CON-
STITUTION)
16. Smith, supra, at 49. Public arms which would be distributed to the
people when needed were referred to as being “lodged” in public ar-
mories
10
protected is the individual's own arms. rather than those of the
state which would be dispensed to him from an armory
whenever the militia was mustered.
Last, but not least, there is the manner in which 7 Bill of
Rights is organized. The rights specifically guaranteed to the
people are contained in the first nine ene (mene. aah the
rights reserved to the states being relegated to the Tenth
Amendment. If the Fam ers had viewed the Second Amend-
ment as a right of the states, they would have placed it in the
Ninth or Tenth Amendments instead.
Ill. The legislative history absolutely compels an
individual right interpretation of the Second
Amendment —
This last point is imperat tively reinforced by Madison’s in-
tended organization of the Bill of Rights. Not having t thought of
appending them as amendments to the Constitution as thev
are now, he proposed to interpolate them after the sections of
the original Constitution to which they were most relevant.
Had he viewed the right to arms as merely a limitation on Art.
I, Section 8's provisions concerning congressional control over
the militia, he would have inserted it therein. Instead. he plan-
ned to insert it (along with freedom of religion, press and
various other personal rights) in Section 9, immediately
following clause 3 which establishes the rights against bills of
attainder and ex post facto laws,!”
Moreover, Madison's notes of his introductory speech on the
amendments (in which the right to arms appeared very early)
said that ‘they relate first to private rights.”'8 Nor did his
legislative colleagues have any doubt that an individual right
17. 12 PAPERS OF JAMES MADISON 20]
18. Id.
1]
was involved. Congressman Fisher Ames, for instance. sum-
marized the pending proposals as follows: “The rights of cons-
cience, of bearing arms ... are declared to be inherent in the
people.”'’ Likewise, writing before the election of the First
Congress, James Monroe included “the right to keep and bear
arms’ ina list of basic “human rights” that he would propose
be added to the Constitution.*"
Apparently the only written interpretative material available
to Congress while the amendments were under consideration
was a widely reprinted newspaper summary by Madison’s cor-
respondent and ally in the preceding struggle for ratification of
the Constitution, Tench Coxe.*! This article, which received
Madison's express commendation,” flatly stated that “the peo-
ple are confirmed by [the Second Amendment] in their right to
keep and bear their private arms.”
The final and conclusive proof that an individual right was
intended Is that Madison formulated the Amendment in terms
which he necessarily knew his contemporaries would inter-
pret as an individual right — as they universally did. As this
Court has emphasized,** to understand the language of the
Constitution it is necessary to bear in mind that the Framers
19. June 11, 1789 letter to Thomas Dwight, | WORKS OF FISHER AMES
92-53. The next day Senator William Gray wrote Patrick Henry of
Madison's introduction of a string of amendments” which “respected per-
sonal liberty.” 3 PATRICK HENRY 391 (1951).
20. James Monroe Papers, N. Y. Public Library.
21. Originally published under the pseudonym “A Pennsylvanian’,
these “Remarks on the First Part of the Amendments to the Federal Con-
stitution” appeared in the PHILADELPHIA FEDERAL GAZETTE (no. 68, v.
Il, p. 2, col. 1) and PHILADELPHIA EVENING POST for June 18, 1789. and
were reprinted by the NEW YORK PACKET on June 23, 1789 at p. 2. col.
1-2 and the BOSTON CENTENEL, for July 4, 1789 at p. 1, col. 2.
22. Coxe sent a copy to Madison who replied commending its ‘“ex-
planatory strictures” of his proposal. June 24, 1789 Letter to Tench Coxe,
MADISON PAPERS, supra, at 241, n.1.
23. Ex parte Grossman, 267 U. S. 87, 109 (1925).
12
were born and brought up in the atmosphere of the
common law, and thought and spoke in_ its
vocabulary ... [W]hen they came to put their conclu-
sions into the form of fundamental law ina compact
draft, they expressed them in terms of the common
law, confident that they would be shortly and easily
understood. [For that reason. t]he language of the
Constitution cannot be interpreted safely except by
reference to the common law and to British institu-
tions as they were when the instrument was framed
and adopted.
Reference to the great common law commentators studied
by the Framers finds Bracton, Hawkins and Coke all affirming
a common law right to possess arms for home defense — while
Blackstone included it among his classification of the five “ab-
solute rights of individuals” at common law.24
Admittedly this right had been theoretically extinguished for
all but the nobility by the hated Game Acts of the Stuart kings
whom the Framers so despised. But repeal of that legislation
had been part of the Glorious Revolution.25 Thereafter English
court decisions, reports of which were available to the
Founders, had recognized that ‘a man may keep a gun for the
defense of his house and family”. and denied that the then cur-
rent Game Acts “prohibit a man from keeping a gun for his
necessary defense..."*> Not only did colonial law allow every
24. Blackstone, supra, 1 W. Hawkins, PLEAS OF THE CROWN, 135 (5
ed. 1771); 3 E. Coke, INSTITUTES 161-162 (Sth ed. 1671): and II] HENRIC]
DE BRACTON DE LEGIBUS ET CONSUETUDINIBUS ANGLIAE 2. 2]. 23
25 (Twiss ed. 1880 — with alternating Latin and English text).
25. See generally, Malcolm, The Right of the People to Kee and Bear
Arms: The Common Law Tradition, 10 HAST. CONST. L. Q. (1983 — for-
thcoming) and J. Malcolm, Disarmed: The Loss of the Right to Bear Arms in
Restoration England (Radcliffe College, 1980).
26. Rex v. Gardner, 7 Mod. 279, 280. 87 Eng. Rep. 1240, 1241 (K. B.
1739), Malloch v. Eastly, 7 Mod. 482, 489. 87 Eng. Rep. 1370, 1374 (C. P.
trustworthy adult to possess arms. but it deemed this right
sancrosanct that every colony or state had specific ally exemp-
ted firearms from distraint for execution because of debt.2”
Given this background. it is inconceivable that Madison and
his colleagues of the First Congress would have chosen the
language they did for the Amendment unless thev intended a
personal right. Assume endian that thev had decided (for
some unknown reason) not to include the individual right
arms thev personally endorsed In the guarantee of arms thev
were writing into the Constitution. If so. they would never
have undertaken to express such an intention in the undefin-
ed ie “right of the people to keep and bear arms” —
because they would have known that their contemporaries
wouiat nave necessarily misinterpreted their intention in terms
of the law thev knew in the colonies and common law for-
mulations like Blackstone's “absolute rights of individuals.”
That. indeed. is precisely how their contemporaries did in-
terpret it. The Second Amendment was analyzed in four legal
commentaries, all of them authored by men who were closely
acquainted with Madison and/or other members of the First
Congress. The earliest of these (by Madison's friend Tench
Coxe) has already been quoted. Next came the 1803 American
lv44). Smith. supra, 63-64 finds that Gardner was reprinted in a book cir-
culated in the Colonies which was part of the law library of John Adams
27. Smith, supra, at 34
28. Although space does not permit reproducing them here, our opening
brief in the Court of Appeals set out such statements in the most n-
thusiastic terms from Thomas Jefferson (“one loves to possess arms’),
Patrick linia (“Every one who is able may have a gun’). George
Washington, James Madison, George Mason, Richard Henry Lee, Sam
Adams “John Adams and Noah Webster, among others. Many of these are
cited in REPORT OF THE SENATE SUBCOMMITTEE ON THE CONSTITU-
TION, supra 4-7, Halbrook, To Keep and Bear “Their Private Arms’: The
Adoption of the Second Amendment, 1787-1791, 10 N. KY. L. Rev. 13
(1982)
14
edition of Blackstone by St. George Tucker, of justice of the
Virginia Supreme Court. an intimate of Madison and Jefferson,
the brother of one member of the First Congress and the best
friend of another.2? Tucker annotated Blackstone's analysis of
the “absolute rights of individuals” to possess firearms in
England, with the observation that in America this common
law right had been enunciated and guaranteed by the Second
Amendment.
Next comes the first comprehensive commentary on the
new federal Constitution, written by William Rawle to whom
Washington had offered the first Attorney Generalship.*! So far
was Rawle from the states’ right concept, that he flatly declared
that the Second Amendment prohibited state, as well as
federal, laws disarming individuals.°2 Last. but surely not least,
are the COMMENTARIES ON THE CONSTITUTION of Mr.
Justice Story, a vounger contemporary of the Founders and a
Jefferson appointee to the United States Supreme Court. He
eulogized “the right of the citizens to keep and bear arms” as
“the palladium of the liberties of a republic.”
If, as this Court has suggested (Powell v. McCormack, 395 U.
S. 486, 547) authorities that are closest to the time of enact:
ment are of most value in understanding the original meaning
of constitutional provisions, the exclusively state’s right theory
cannot survive the fact that it is exclusively a product of the
20th Century, of which neither the Framers nor any 18th or
29. M. Coleman, ST. GEORGE TUCKER, CITIZEN OF NO MEAN CITY
35, 87, 113-114, 124; REPORT OF THE SENATE SUBCOMMITTEE ON
THE CONSTITUTION, supra 7.
30. St. George Tucker, BLACKSTONE'S COMMENTARIES. WITH
NOTES OF REFERENCE TO THE CONSTITUTION AND LAWS OF THE
FEDERAL GOVERNMENT (etc.) 143, n. 40 and 300 (1803).
31. D. Brown, EULOGIUM UPON WILLIAM RAWLE 8-9. 15. 38 (1837).
32. W. Rawle, A VIEW OF THE CONSTITUTION 125-126 (2d ed. 1829).
33. J. Story, COMMENTARIES ON THE CONSTITUTION 746 (1833), em-
phasis added.
15
19th Century commentator or court had the slightest intima-
tlon.*4
IV. This Court has recognized that the Second
Amendment guarantees an individual right —.
Respondent and the courts below emphasized that U.S.
Miller, 307 U.S. 174. 179 (1935), in rejecting the claim that
legislation prohibiting sawed-off shotguns is unconstitutional
on its face, said:
With obvious purpose to assure the continuation and
render possible the effectiveness of [militia] forces the
declaration and guarantee of the Second Amendment
were made. It must be interpreted and applied with that
end in view.
But this can only be understood in light of what this Court
there held the “militia” to be — in the nearly 50% of the opi-
nion which is devoted to defining it. Contrary to respondent's
assumption that “militia” in 18th Century usage meant an
organized military unit as it does today,
The signification attributed to the term Militia appears
from the debates in the [Constitutional] Convention, the
history and legislation of Colonies and States, and the
Writings of approved commentators. These show plainly
34. Between them, our and the REICHERT briefs in the Court of Appeals
cited some 22 state cases, and five from this Court, spanning the period
1822-1903, all of which construed either the Second Amendment or acom-
parable state constitutional provision as creating a right which individuals
could invoke. The first case to invoke the “collective” or state’s right theory
's City of Salina v. Blaksely, 83 Pac. 61 (1905), construing a state constitu-
tional provision in a way which virtually no other state court has followed.
Caplan The Right of the Individual to Bear Arms: A Recent Judicial Trend.
1982 DETROIT COLL. OF LAW REV. 791.
16
enough that the Militia comprised all males physically
capable of acting in concert for the common
defense...and further, that ordinarily when called for ser-
vice these men were expected to appear bearing arms
supplied by themselves and of the kind in common use at
the time. [307 U.S. at 179, emphasis added. ]
Far from holding that Mr. Miller, as an ordinary citizen, could
not invoke the Amendment's protection, this Court recognized
that he could — without proof of any connection to the Na-
tional Guard or some comparable state organization, What this
Court focused on was only the weapon itself, citing a state case
Which had held that the individual, to be protected, must
demonstrate it to be a militia-type weapon:
In the absence of any evidence tending to show that
possession or use of a ‘shotgun having a barrel of less
than 18 inches in length” at this time has some
reasonable relationship to the preservation of the efficien-
cy of a well regulated militia, we cannot say that the se-
cond amendment guarantees the right to keep and bear
such an instrument. Certainly it is not within judicial
notice that this weapon is any part of the ordinary
military equipment or that its use could contribute to the
common defense. Aymette v. State, 2 Humphreys, Tenn.
154, 158. [Id. at 178]
Thus, even as it recognized an individual right to arms,
Miller established the limitation that the weapon must be
Suitable for militia purposes. Of course, it is common
knowledge that handguns per se are “part of the ordinary
military equipment” (307 U.S. at 178). This is judicially
noticable since it is easily verifiable by unimpeachable
reference works.°5
35. See, e.g. | Hogg and J. Weeks, MILITARY SMALL ARMS OF THE
20TH CENTURY London: Arms & Armour Press, 1973) (devoting 39 pages
17
V. The Amendment is not obsolete nor (if it were)
would it be the prerogative of the judiciary to
read it out of the Constitution by refusing to en-
force it —
It has been argued that popular possession of arms is useless
for self-defense, or as a resource against either foreign attack or
domestic tyranny.*° If this is true we wonder how it came to be
that the British no longer rule in Israel and Ireland, nor
Generals Somoza and Bautista in Nicaragua and Cuba, respec-
tively, nor the Shah in Iran; how the French lost Indo-China,
Algeria and Madagascar; and the Portugese lost Angola.*’ The
notion that modern military technology has rendered tyrants
impervious to popular revolution can only be based upon the
gratuitous assumption that handgun-armed citizens will
eschew guerrilla warfare in favor of throwing themselves
headlong under the tracks of advancing tanks. For, in the vast
majority of instances, 20th Century military establishments
have been unable to suppress guerrillas who started out with
only small arms, viz our experience against the Viet Cong and
the Soviet’s experience in Afghanistan. (Note that it is quite ir-
relevant for our purposes whether each of the struggles men-
tioned is or was justified or the people benefited therefrom.
However one may appraise these victories, the fact remains
to the handguns adopted as standard by various nations armed forces),
Levy, GUERRILLA WARFARE 55 (Penguin & Infantry Journal, 1942), (a
manual distributed en mass by the War Department, recommending the
keeping of “weapons 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.’’).
36. See e.g. Clark, Reducing Firearms Availability: Constitutional Im-
pediments to Effective Legislation and an Agenda for Research, forthcom-
ing in ISSUES OF PUBLIC POLICY, supra.
37. Kessler, Gun Control and Political Power, 5 LAW & POLICY
QUARTERLY #3 (July, 1983), Marina, Weapons, Technology and
Legitimacy: The Second Amendment in Global Perspective forthcoming in
ISSUES OF PUBLIC POLICY, supra.
18
that they were achieved against regimes equipped with all the
military technology which, it Is asserted, inevitably dooms
popular revolt.)
in a free countrv like our own the issue is not
To persuade his of-
ilitary despot must
Moreover,
overthrowing tvranny, but deterring it.
ficers and men to follow him, a potential n
be able to convince them that his rule can meet the nation’s
problems better than a democratic government, which needs
a consensus within a widely divergent citizenry before it can
act decisively. But when that widely divergent. citizenry
possesses upwards of 160 million firearms the outcome of any
usurpation (no matter how initially successful) is likely to be
savage and prolonged civil war, rather than a benevolent dic-
tatorship:%*
A general may have pipe dreams of a sudden and
peaceful takeover and a nation moving confidently for-
ward, united under his direction, But the realistic general
will remember the actual fruits of civil war — shattered
cities like Hue, Beirut, and Belfast, devastated coun-
trysides like the Mekong Delta, Cypress and southern
Lebanon.
Even if his ambition does not recoil from the prospect of vic-
tory at such cost, will his officers and men accept it? Moreover,
he and they must also evaluate its effect in leaving the country
vulnerable to the very foreign enemies their coup is designed
to unite the country against. Because it leads any prospective
dictator to think through such questions, the individual,
anonyimous ownersnip of firearms is still a deterrent t today to
the despotism it was originally intended to obviate. While our
government has a “quite good record of exerting power
without abusing it...the deterrent effect of an armed citizenry is
38. Hardy, supra, at 184-185.
19
one little recognized factor that may have contributed to
this."’’ In the words of the late Senator Hubert Humphrey:
The right of citizens to bear arms is just one more
guarantee against arbitrary government, one more safe-
guard against a tyranny which now appears remote in
America, but which historically has proved to be always
possible.‘
As to the national defense value today of a popular militia,
for constitutional purposes the issue appears to have been
resolved by Congress. Congress has determined that it re-
mains necessary to classify the entire able-bodied male
population aged 17-45 as the “unorganized militia” of the
United States, subject to a potential call to arms in the case of
dire military emergency. 10 U.S.C. §311. Moreover, the recent
military history of the United States shows militia units so
composed making definite, though minor, military contribu-
tions,*!
10. Id
1], As late as Pearl Harbor a military emergency was deemed to require
mustering individually armed citizens. Because available military person-
nel were insufficient to repel the Japanese invasion that seemed imminent.
the Governor of Hawaii called upon citizens to man check points and patrol
remote beach areas, (Ironically many of those responding were Japanese-
Americans whose colleagues in California were soon to be imprisoned
without benefit of trial or habeas corpus.) Across the country the
unorganized militia proved a successful substitute for the National Guard.
which was federalized and activated for overseas duty. U. S. HOME
DEFENSE FORCES STUDY, p. 32, 34 (Office of the Assistant Secretary of
Defense, March 1981). Members of the unorganized aie any OY WONT
belonged to gun clubs and whose ages varied from 16 to 65, served without
pay and provided their own arms. Id. at 58, 62-63. The U. S. government,
however, not only could not supply sufficient arms to the militia but “turn-
ed out to be an Indian giver” by recalling rifles. M. Schlegel, VIRGINIA ON
GUARD at 131 (Va. State Lib. 1949). In Virginia, ‘since its personnel would
have to furnish its own weapons and ammunition, [the militia’s} member-
ship campaign leaned heavily on sportsmen of the state.” Schlegel at 129,
20
Finally, arguments as to whether the Amendment is ob-
solete are of, at most, tangential import to its proper interpre-
tion by the courts. After all, the Second Amendment is not the
only provision of the Bill of Rights which is assertedly obsolete
(or with which some people today just happen to disagree), A
judge may be absolutely convinced that the premise of free
will which underlies the First Amendment has been in-
validated by modern psychological techniques like brain-
washing. Yet so long as the First Amendment stands he cannot
commit a young person, who has allegedly been brainwashed
by a “cult” to abandon the beliefs and lifestyle of his
parents, into the custody of a “deprogrammer,’’*? Likewise the
Seventh Amendment clearly is obsolete, at least insofar as it
requires jury trials in civil cases exceeding $20.00 in con-
troversy. Nevertheless this Court continues faithfully to apply
that Amendment's dictate in all cases fairly covered by its
literal wording and original spirit.
Though courts sometimes give constitutional rights addi-
“ional scope in order to effectuate what is deemed to be their
original intent, courts have no authority to reduce or eliminate
the plain terms of a constitutional guarantee because they
disagree with its intent or view it as obsolete. The duty of the
courts is to enforce the Constitution, not to arrogate to
themselves the power to delete its provisions. The power to
withdraw a right explicitly guaranteed to the people is reserv-
ed to their state and federal legislatures in a process which is
ornately hedged around with safeguards, not the least of
which is its protracted length.
Rep. of Adj. Gen. (VA) 12 (1942). The 15,000 volunteer Marviand Minute
Men brought their own rifles. shotguns, pistols to musters Baker, /
Remember — “The Army” With Men From 16 to 79, (BALTIMORE) SUN
MAG. 46 (Nov. 16, 1975).
42. See, e.g. Rankin v. Howard, 633 F.2d 844 (9 Cir. 1980)
21
VI. Ordinance 81-11 violates the “castle doc-
trine’”’ which is central to the Fourth Amend-
ment and penumbral to several others —
Privacy of home and family enjoy a peculiar sanctity under
our Constitution. Griswold v. Connecticut, 381 U.S. 479 (1965),
United States v. Orito, 413 U.S. 139, 142 (1973) (“The Constitu-
tion extends special safeguards to the privacy of the home’,
protecting there a multitude of things which might be pro-
hibited in other contexts). Thus in “a reaffirmation that ‘a
man’s home is his castle’, persons may possess therein por-
nography which, outside the home, enjoys no constitutional
protection. Stanley v. Georgia, 394 U.S. 557 (1969), Paris Adult
Theater | v. Slaton, 413 U.S. 49, 66 (1973).
A fortiori the home possession of handguns for the purpose
of home defense. Not only are they directly relevant to home
privacy (as pornography is not) but application of the castle
doctrine to them involves no more than tracing that doctrine
to its roots. For it originated — and was known to the Found-
ing Fathers — in the context of a right to possess and use arms
in the home defense. Cf. Payton v. New York, 445 U.S, 573, n.
44 (1980), quoting Semayne's Case, 5 Coke Rep. 91a (1603),
The familiar maxim expressing the castle doctrine
originated in a case cited in Semayne (see Payton n. 44:
Anonymous, 21 Hen. VII, fol. 39, pl. 50), holding that a
householder could not only defend himself with deadly force,
but could assemble an armed multitude to assist him because
“a man’s house is his castle and his deferise, and where he has
a peculiar right to stay, etc." Naturally a right to use deadly
13. Earlier cases included DAutti’s Case. Northumberland Assize Rolls
(1255), 88 Publications of Surtees Society 94 (1891) (household servant
Compton, 22 Lite: Issisaqruim
privileged to kill nocturnal intruder); Rex ¢
pl. 55 (1347) (homicide of burglar is no less justifiable than of criminal who
resists arrest under warrant); and Anonymous 1353, 26 Liber Assisarum
(Edw. Hl}, fol. 123 pl. 23. (householder privileged to kill arsonist)
force in defense of the castle implied a right to possess deadly
weapons there. Thus Bracton declared that, while “a person
may not walk about with arms whenever he pleases without
some cause’, if assailed at home, ‘he may resist with his ut-
most strength, with arms or without... ."’ IV DE LEGIBUS ET
CONSUETUDINIBUS ANGLIAE fol. 162b. (3 Twiss transl. 23,
1880). Likewise Coke emphasized that the Statute of Nor-
thhampton, which prohibited the carrying of arms, did not ap-
ply to their possession in the home*
for where shall a man be safe, if it not be in his
house? And in this sense it is truly said Armaque in
armatos sumere jura sinunt [The laws permit taking
up arms against armed persons. ].
Stanley proscribes laws entering the home to forbid posses-
sion of pornography there. How then can an ordinance enter it
to strip the householder of his means of protecting it — protec-
tion which the Village has neither the necessary resources nor
legal liability to provide?5 As Payton notes in quoting Se-
mayne § case:
44.3 E. Coke, INSTITUTES 162 (5th ed., 1671)
45. Cf. 85 Ill. Rev. Stat. 4-102 immunizing municipalities “for failure to
prevent the commission of crimes and failure to apprehend criminals.”
See, e.g. Jamison v. City of Chicago, 48 Ill. App. 3d 567, (1977). Compare
Waren v. District of Columbia, 444 A.2d 1 (1981) (no liability where, as a
result of police failure to respond to repeated phone calls that burglars had
broken in: “for the next fourteen hours the [plaintiffs] were held captive,
raped, robbed, beaten, forced to commit sexual acts upon each other, and
made to submit to the sexual demands of” their attackers)
Immunization from police liability for failure to protect results from the
simple fact that police resources are insufficient to provide direct protection
deter crime through preventive
Even with special “911° dialing
to citizens. Resources barely suffice to
patrol! and subsequent apprehension
apprehend crime perpetrators -
much less to protect victims. W. Spellman, D Brown, CALLING THE
Exec. Res. Forum. 1980) ('When reported within a
police response time is inadequate to
POLICE ¥xiH (Police
the chances of response related arrest were
lew seconds about |S per eq
2
The zealous and frequent repetition of the [castle
doctrine maxim] made it abundantly clear that both
England and in the Colonies “the freedom of one’s
house” was one of the most vital elements of English
liberty [445 U.S. at 596-597].
Note: we recognize that the wisdom of the castle doctrine is
challenged by the claim that firearms are useless for self-
defense. Even if more recent scholarship did not tend to
validate the self defense and crime deterrence value of hand-
gun ownership", the wisdom of the Bill of Rights is not open to
judicial review,
it reported 60 seconds after the crime, the chances are only about 10 per-
cent. )
California State University criminologist A.C. Germann notes that
public has been duped into thinking that the police, unilaterally, can pro-
Police Partnership, CALIFORNIA JOUR-
vide a crime-free communits
» for us than it was for the
NAL, November 1982. It is scarcely less true
Founders that the individual depends upon himself for the defense of his
own home
$6. One studs purports {oO
idents as killed burglars. This has now been
See discussion in “The
prove that six times as many Cleveland
householders died in gun ac
discredited because of massive statistical error
Ownership of Firearms for Reasons of Self-Defense,” a paper delivered by
Prof. James Wright to the 1981 annual meeting of the American Society of
Criminology
It had been noted that few householders killed burglars (or vice versa) in
Los Angeles and Detroit in the early 1960's. G. Newton and F. Zimring,
FIREARMS AND VIOLENCE IN AMERICAN LIFE, 62-3 (1970). But more re-
cent and comprehensive statistics tell a different story: In 1981 California
civilians justifiably killed almost twice as many burglars, rapists and other
violent felons as did police. Bureau of Criminal Statistics, HOMICIDE IN
CALIFORNIA, 1981, 35-6 and tables 58-65 (California Dept. of Justice).
Miami has the same ratio (Omaha World Herald, Oct. 20, 1982, p. 2); while
in Chicago and Cleveland civilians kill three times as many felons as do
police. D. Kates, RESTRICTING HANDGUNS, supra, 156; Rushforth, et al.
Violent Death in a Metropolitan County — Changing Patterns in Homicide
(1958-1974), 297 NEW ENGLAND J. MED. 531 (1977). For similar statistics
for Houston-Dallas and New York: see New York Times, Nov. 21, 1982:
“Shootings by Civilians Rise Sharply. —
Nor can it be claimed that the castle doctrine allows a hand-
gun ban which leaves still long guns for home defense. Such a
distinction bears no relationship to the “freedom of one’s
house” rationale. Stan/ey, for instance, would prevent enforce-
ment in the home of laws preventing the possession of one
pornography (e.g. homosexual) —
regardless of whether home possession of other kinds of por-
particular kind of
nography was permitted.*”
Also of interest may be Orlando, Florida's one year experiment with a
highly publicized program in which 3,000 civilian women received hand-
gun self defense training. In the succeding year rape dropped by nearly
90%, burglary and aggravated assault by 24% and 25% respectively —
making Orlando the only citv of more than 100,000 in the country to ex-
perience a reduction in violent crime. Kates, supra, at 167. After five vears
rape in Orlando was still down 13% while it had risen 300% in the sur-
rounding area. Compare FBI UNIFORM CRIME REPORTS 1966: 85 and
172 to 1967: 179, to 1972: 88 and 199. These and other statistics directly
relevant to this case (crime rose sharply in Morton Grove after the ban
while it has dropped by 73% in Kennesaw, GA., after that town required
every household to have a gun) are discussed in Kleck & Bordua, The Fac-
tual Foundations of Gun Control, 5 LAW & POLICY Q. #3 (July, 1983).
47. Indeed, it is not handguns but long guns which, in an urban environ-
ment at least. fail to meet the common law criteria of being usable for home
defense without posing an unreasonable danger of injury to innocent third
parties. Even if a shot from a handgun misses a burglar it will end up in the
wall — unlike a shotgun blast which will penetrate all the way through, en-
dangering other family members or neighbors. (And a rifle used in home
defense would be capable of doing that even after actually striking the
burglar and penetrating all the way through him.) Moreover, the danger of
accidental fatality enormously increases when handguns kept for home
defense are replaced by long guns (weapons which even now are involved
in 90% of all accidental firearms fatalities, though they probably constitute
less than 10% of the weapons kept loaded at any one time). Kates, Points of
Comparison Between Banning the Handgun and Prohibition of Liquor, a
paper delivered to the 198] annual meeting of the American Society of
Criminology
The dangers implicit in discharging a long gun at a rapist or other burglar
in an urban environment are so substantial that civil or even criminal
liability for recklessness might well follow. W. La Fave and A. Scott
CRIMINAL LAW 396. Thus, the castle doctrine embraces the right to opt for
CONCLUSION
For the foregoing reasons we believe that this Court should
hear the issues involved in this case.
Date: May 25,1983
Don B. Kates, Jr.
Benenson, Kates and Hardy
Attorneys for Petitioners
(en eneeetseerneeenneenamenncesanecmamnceenseeneestinneamesenet
handguns instead of long guns as home defense weapons. Compare
Metromedia v. San Diego, 453 U.S. 490 (1981) (availability of other media
for political and social expression cannot justify prohibition of billboards),
Lovell v. Griffin, 303 U.S. 444 (1938) (same: leafletting)
B:
[):
G:
APPENDICES INDEX
U.S. Court of Appeals, 7th Cir.; Decision (Dec. 6.
1982); Quilici, Stengl, et al, Reichert and Metler v.
Village of Morton Grove.
U.S. Dist. Court, Northern Dist. lll. Memorandum
opinion and order (Dec. 29, 19 81): Quilici, et al. v.
Village of Morton Grove.
U.S. Court of Appeals, 7th Cir.; Judgment—Oral
Argument (Dec. 6, 1982); Quilici, et al. v. Village of
Morton Grove.
U.S. Court of Appeals, 7th Cir.; Order Amendment
(Dec. 10, 1982); Quilici, et al. v. Village of Morton
Grove.
U.S. Court of Appeals, 7th Cir.; en banc rehearing
denied (Mar. 2, 1983); Quilici, et al. v. Village of Mor-
ton Grove.
U.S. Court of Appeals, 7th Cir.; Mandate and record
letter (Mar. 11, 1983); Quilici, et al. v. Village of Mor-
ton Grove.
U.S. Dist. Court, Northern Dist. Ill.; Judgment order
(Dec. 29, 1981); Quilict, et al. v. Village of Morton
Grove.
Appendix A
In the
United States Court of Appeals
For the Seventh Cirenit
Nos. 82-1045, 82-1076 & 82-1132
Victor D. QUILICI, ROBERT STENGL, et al..
GEORGE L. REICHERT, and RoBErT E. METLER,
Plaintiffs-A ppellants,
as
VILLAGE OF MORTON GROVE, et al.
Defendants-A ppellees.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
Nos. 81 C 3432. 81 C 4086 & 81 C 5071—Bernard M. Decker. Judg
ARGUED MAY 28, 1982—DEcIDED DECEMBER 6, 1982
Before BAUER, Woop, and COFFEY, Circuit Judges.
BAUER, Circuit Judge. This appeal concerns the con-
stitutionality of the Village of Morton Grove’s Ordinance
No. 81-11,! which prohibits the possession of handguns
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
(Footnote continued on following page)
A-2
continued
Whereas, the Corporate Authorities of the Village of Mor-
ton Grove have found and determined that the easy and con-
venient 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 acci-
dental injury and death.
NOW, THEREFORE. BE IT ORDAINED BY THE PRESIDENT
AND BOARD OF TRUSTEES OF THE VILLAGE OF MorToN
GROVE, COOK CounTy, ILLINOIs, AS FOLLOWS:
SECTION 1: The Corporate Authorities do hereby incorpo-
rate the foregoing W HEREAS Clauses into the Ordinance, there-
by making the findings as hereinabove set forth.
SECTION 2: That Chapter 132 of the Code of Ordinances of
the Village of Morton Grove be and is hereby amended by the
addition of the following section:
“Section 132.102. Weapons Control
(A) Definitions:
Firearm: “Firearm” means any device, by whatever
name known, which Is designed to expel a projectile or
projectiles by the action of an explosion, expansion of gas
or escape of gas: excluding however:
(1) Any pneumatic gun, spring gun or B-B gun which
expels a single globular projectile not exceeding .18 inches
in diameter.
(2) Any device used exclusively for signalling or safety
and required or recommended by the United States Coast
Guard or the Interstate Commerce Commission.
(3) Any device used exclusively for the firing of stud
cartridges, explosive rivets or similar industrial ammuni-
tion.
(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 rede
signed or made or remade, and intended to be fired while
t wtnote continued n following page)
A-3
continued
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, associa-
tion, firm, partnership, club, society or joint stock com-
pany.
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 \ illage of Morton Grove under Section 90.20 of the
Code of Ordinances of the Village of Morton Grove.
(B) Possession:
No person shall possess, in the Village of Morton Grove the
following:
(1) Any bludgeon, black-jack, slug shot, sand club,
sand bag, metal knuckles or any knife, commonly referred
to as a switchblade knife, which has a blade that opens
automatically by hand pressure — 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 altera-
tion, modification or otherwise, if such weapon, as modi-
fied or altered has an overall length of less than 26 inches,
or a barrel length of less than 18 inches or any bomb,
bomb-shell, grenade, bottle or other container containing
an explosive substance of over one-quarter ounce for like
purposes, such as, but not limited to black powder bombs
and molotov cocktails or artillery projectiles: or
(3) Any handgun, unless the same has been rendered
permanently inoperative.
(C) Subsection B(1) shall not apply to or affect any peace
officer.
(Footnote continued on following page)
A-4
continued
(D) Subsection B(2) shall not apply to or affect the follow-
ing:
(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 sub-
section to possess ering ab guns, if the machine guns are
broken down in a non-functioning state or not imme-
diately accessible.
(E) Subsection B(3) does not apply to or affect the following:
(1) Peace officers or any person summoned by any
peace officer to assist in making arrests or preserving the
peace while he is actually engaged in assisting such
officer and if such handgun was provided by the peace
officer;
(2) Wardens, superintendents and keepers of prisons,
penitentiaries, jails and other institutions for the detention
of persons accused or convicted of an offense;
(3) Members of the Armed Services or Reserve Forces
of the United States or the Illinois National Guard or the
Reserve Officers Training Corps while in the perfor-
mance of their official duties.
(4) Special Agents employed by a railroad or a public
utility to perform police functions: guards of armored car
companies; watchmen and security guards actually and
regularly employed in the commercial or industrial opera-
tion for the protection of persons employed and private
property related to such commercial or industrial opera-
tion:
(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 prem-
ises 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
(Footnote continued on following page)
A-5
within the Village's borders. The district court held that
the Ordinance was constitutional. We affirm.
I
Victor D. Quilici initially challenged Ordinance No. 81-
11 in state court. Morton Grove removed the action to
federal court where it was consolidated with two similar
actions, one brought by George L. Reichert and Robert
E. Metler (collectively Reichert) and one brought by
Robert Stengl, Martin Gutenkauf, Alice Gutenkauf,
Walter J. Dutchak and Geoffrey Lagonia (collectively
Stengl). Plaintiffs alleged that Ordinance #81-11 vio-
lated article I, section 22 of the Illinois Constitution and
the second, ninth and fourteenth amendments of the
United States Constitution. They sought an order de-
claring the Ordinance unconstitutional and permanently
enjoining its enforcement. The parties filed cross mo-
tions for summary judgment. The district court granted
Morton Grove’s motion for summary judgment and
denied plaintiffs’ motions for summary judgment.
1 continued
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 he premises
of the gun club; and gun club members while such
members are using their handguns at the gun club prem-
iSes;
(8) A possession of an antique firearm;
(9) Transportation of handguns to those persons author-
ized under Subparagraphs 1 through 8 of this subsection
to possess handguns, if the handguns are broken down in
a non-functioning state or not immediately accessible.
(10) Transportation of handguns by persons from a
licensed gun club to another licensed gun club or trans-
portation from a licensed gun club to a gun club outside
the limits of Morton Grove; provided however that the
transportation is for the purpose of engaging in competi-
tive 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.
A-6
In its opinion, Quilici v. Village of Morton Grove, 532
F.Supp. 1169 (N.D. Ill. 1981), the district court set forth
several reasons for upholding the handgun ban’s valid-
ity under the state and federal constitutions. First, it
held that the Ordinance which banned only certain
kinds of arms was a valid exercise of Morton Grove’s
police power and did not conflict with section 22’s con-
ditional right to keep and bear arms. Second, relying on
Presser v. Illinois, 116 U.S. 252 (1886), the court con-
cluded 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 amend-
ment does not include the right to possess handguns for
self-defense. Appellants contend that the district court
incorrectly construed the relevant constitutional provi-
sions, assigning numerous errors based on case law, his-
torical analysis, common law traditions and public policy
concerns.?
* Three amici briefs were also filed, by the Illinois State
Rifle Association, the Handgun Control, Inc., and the States
of Arizona, Connecticut, Hawaii, Idaho, Louisiana, Missouri.
Montana, Nevada, North Carolina, Oregon and Wyoming col-
lectively. 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 constitu-
tional provision when the state court has not vet had the
opportunity to construe that provision. Amici Curiae br. at 8.
he states admit that abstention is not required when the
State constitutional provision parallels the federal constitu-
tional provision. However, relying on Railroad Comm'n °.
Pullman Co., 312 U.S. 496 (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
(Footnote continued on following page)
A-7
While we recognize that this case raises controversial
issues which engender strong emotions, our task is to
apply the law as it has been interpreted by the Supreme
Court, regardless of whether that Court’s interpretation
comports with various personal views of what the law
should be. We are also aware that we must resolve the
controversy without rendering unnecessary constitution-
al decisions. Richard Niron v. A. Ernest Fitzgerald, 102
S.Ct. 2690 (1982). With these principles in mind we ad-
dress appellants’ contentions.
IT
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 mean-
ing of this section is controlled by the terms “arms” and
“police power” but disagree as to the scope of these
terms.
Relying on the statutory construction principles that
constitutional guarantees should be broadly construed
and that constitutional provisions should prevail over
conflicting statutory provisions, appellants allege that
section 22’s guarantee of the right to keep and bear
2 continued
particular case. 1A Moore's Federal Practice § 0.203[1] at
2105 (1977). Federal courts have been reluctant to abstain
when fundamental rights such as voting, racial equality or
rights of expression are involved. /d. at 2111-12. We consider
the issue of gun control of vital importance to every citizen
and, for this reason, do not believe that abstention is any
more appropriate in this case than in cases where fundamen-
tal rights are involved. Moreover, the purpose of the absten-
tion doctrine is to minimize the conflict between the federal
and state systems. Railroad Comm'n v. Pullman Co., 312 U.S.
496 (1941). There is no conflict here, for Morton Grove vol-
untarily removed this case to federal court. Accordingly, we
find that the abstention doctrine has no relevance.
A-8
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 con-
cealed weapons or the possession of firearms by minors,
convicted felons, and incompetents are valid. However,
they maintain that no authority supports interpreting
section 22 to permit a ban on the possession of handguns
merely because alternative weapons are not also banned.
They argue that construing section 22 in this manner
would lead to the anomalous situation in which one
municipality completely bans handguns while a neigh-
boring municipality completely bans all arms but handa-
guns.
In contrast, Morton Grove alleges that “arms” is a
general term which does not include any specific kind of
weapon. Relying on section 22’s language, which they
characterize as clear and explicit, Morton Grove reads
section 22 to guarantee the right to keep only some, but
not all, arms which are used for “recreation or the pro-
tection of person and property.” It argues that the Ordi-
nance passes constitutional muster because standard
rifles and shotguns are also used for “recreation or the
protection of person and property” and Ordinance #81-
11 does not ban these weapons.
While Morton Grove does not challenge appellants’
assertion that “arms” includes handguns, we believe
that a discussion of the kind of arms section 22 protects
IS an appropriate place to begin our analysis. Because
we disagree with Morton Grove’s assertion that section
22's language is clear and explicit, we turn to the consti-
tutional debates for guidance on the proper construction
A-9
of arms.3 Client Follow-Up Co. v. Hynes, 75 Ill. 2d 208,
216, 390 N.E.2d 847, 850 (1979), citing Wolfson v. Avery,
6 UlL2d 78, 126 N.E.2d 701 (1955).*
The debates indicate that the category of arms pro-
tected 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 “recrea-
tion or the protection of person and property.” 6 Pro-
ceedings 87. Handguns are undisputedly the type of
arms commonly used for “recreation or the protection of
person and property.”
Our conclusion that the framers intended to include
handguns in the class of protected arms is supported by
the fact that in discussing the term the Proceedings
refer to People v. Brown, 258 Mich. 5387, 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’
3 In construing section 22, the district court also relied heav-
ily on the constitutional debates. Appellants challenge this
reliance, arguing that constitutional ambiguities are best
resolved by the voters’ understanding at the time of the vote
on the proposed constitution. Appellants contend that the
voters’ understanding should be gleaned from: (1) the Official
Explanation published prior to the ratification vote; (2) news-
paper 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 con-
struction, Quilict ». Village of Morton Grove, 582 F. Supp.
at 1174-75, we need not repeat that analysis here.
‘ Reichert cites Client Follow-Up Co. v. Hynes, 75 Il.2d 208,
390 N.E.2d 847 (1979) to support his assertion that the dis-
trict court erroneously relied on the constitutional convention
debates to construe section 22. He contends that Civent 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 hold-
ing, 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.
A-10
and “revolvers.” 253 Mich. at 542, 285 N.W. at 247.
Duke states that “[t]he arms which every person is
secured the right to keep and bear (in defense of him-
self or the State, subject to legislative regulation), must
be such arms as are commonly kept, ... and are appro-
priate for ... self-defense, as well as such as are proper
for the defense of the State.” 42 Tex. at 458. The dele-
gates’ statements and reliance on Brown and Duke con-
vineces 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 deter-
mine the extent to which a municipality may exercise
its police power to restrict, or even prohibit, the right to
keep and bear these arms. The district court concluded
that section 22 recognizes only a narrow individual
right which is subject to substantial legislative con-
trol. It noted that “[t]o the extent that one looks to the
convention debate for assistance in reconciling the con-
flict between the right to arms and the exercise of the
police power, the debate clearly supports a narrow con-
struction of the individual right.” Quilic: v. Village of
Morton Grove, 582 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 constitu-
tional provisions” and, thus, have little application to
this case. Jd. at 1176.
We agree with the district court that the right to keep
and bear arms in Illinois is so limited by the police
power that a ban on handguns does not violate that
right. In reaching this conclusion we find two factors
significant. First, section 22’s plain language grants
only the right to keep and bear arms, not handguns.
Second, although the framers intended handguns to be
one of the arms conditionally protected under section 22,
they also envisioned that local governments might exer-
cise their police power to restrict, or prohibit, the right
to keep and bear handguns. For example, Delegate Fos-
ter, speaking for the majority, explained:
A-1]
It could be argued that, in theory, the legislature
now [prior to the adoption of the 1970 Illinois
Constitution] has the right to ban all firearms in the
state as far as individual citizens owning them is
concerned. That is the power which we wanted to
restrict—an absolute ban on all firearms.
3 Proceedings 1688. Delegate Foster then noted that
section 22 “would prevent a complete ban on al] guns,
but there could be a ban on certain categories.” /d. at
1693.° 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 allow-
ing municipalities to exercise their police power to
enact dissimilar gun control laws, leads to “untenable”
and “absurd” results. Quilici br. at 14. This argument
ignores the fact that the Illinois Constitution authorizes
local governments to function as home rule units to
“exercise any power and perform any function pertain-
ing to its government and affairs”. Illinois Const. art.
VIII, § 6(a). Home rule government? is based on the the-
* The Proceedings are replete with other statements sup-
porting our holding. See, for example, Delegate Foster's state-
ment 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.
6 Ill. Const. art. VII, § 6(a) provides:
A County which has a chief executive officer elected by
the county and any municipality which has a population
of more than 25,000 are home rule units. Other municipal-
(Footnote continued on following page)
A-12
ory 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 con-
cerns. Carlson v. Briceland, 61 Ill. App. 3d 247, 377
N_E.2d 1138 (1978). Illinois home rule units have expan-
sive powers to govern as they deem proper, see gene rally
Hall & Wallack, Intergovernmental Cooperation and the
Transfer of Powers, 1981 U. Ill. L. Rev. 775, 777-79;
Vitullo & Peters, Jntergovernmental Cooperation and
the Municipal Insurance Crisis, 30 DePaul L. Rev. 325,
296-29 (1981): including the authority to impose greater
restrictions on particular rights than those imposed by
the state. See City of Evanston . Create, Inc.., 8D Il. 2d
101, 421 N.E.2d 196 (1981). The only limits on their
autonomy are those imposed by the Illinois Constitution,
City of Carbondale er rel. Ham v. Eckert, 76 Ill. App. 3d
881. 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 con-
trol envisioned by the new Illinois Constitution.
Appellants concede that municipalities may, under
the Illinois Constitution, exercise their police power to
enact regulations which prohibit “possession of items
legislatively found to be dangerous .. .”, Quilici br. at 9.
They draw a distinction, however, between the exercise
continued
ities may elect by referendum to become home rule units.
Except as limited by this Section, a home rule unit may
exercise any power and ‘sagan 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 Iil. Const. Art. VII, § 6(a)
A-13
of the police power in general and the exercise of police
power with respect to a constitutionally protected right.
Indeed, they vehemently insist that a municipality may
not exercise its police power to completely prohibit a
constitutional guarantee.
We agree that the state may not exercise its police
power to violate a positive constitutional mandate. Peo-
ple 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 constitu-
tionally protected right. There is no right under the IIIi-
nois 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 horne rule units from adopting conflicting en-
actments. See City of Evanston v. Create, Inc., 85 I11.2d
101, 421 N.E.2d 196 (1981). Accordingly, Morton Grove
may exercise its police power to prohibit handguns even
though this prohibition interferes with an individual's
liberty or property. People v. Warren, 11 IIl.2d 420. 143
N.E.2d 28 (1957).
The Illinois Constitution establishes a presumption in
favor of municipal home rule. Carlson v. Briceland. 61
Ill. App. 3d 247, 377 N.E.2d 1138 (1978). Once a local
government identifies a problem and enacts legisla-
tion to mitigate or eliminate it, that enactment is pre-
sumed valid and may be overturned only if it is un-
reasonable, clearly arbitrary, and has no foundation in
the police power. /llinois Gamefowl Breeders Ass'n v.
Block, 75 I]l.2d 443, 389 N.E.2d 529 (1979); Peopie v.
Copeland, 92 Ill. App. 3d 475, 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, 414
N.E.2d 731 (1980). As the district court noted, there is
at least some empirical evidence that gun control legis-
lation may reduce the number of deaths and accidents
A-14
caused by handguns. Quilici +. Village of Morton Grove,
032 F. Supp. at 1179. This evidence is sufficient to sus-
tain the conclusion that Ordinance No. 81-11 is neither
Wholly arbitrary nor completely unsupported by any set
of facts. People +. Copeland. 92 II]. App. 3d 475, 415
N.E.2d 1173 (1st Dist. 1980). Accordingly, we decline
to consider plaintiffs’ arguments that Ordinance No.
81-11 wiil not make Morton Grove a safer, more peace-
ful place.
We agree with the district court that Ordinance No.
81-11: (1) is properly directed at protecting the safety and
health of Morton Grove citizens; (2) is a valid exercise
of Morton Grove’s police power; and (3) does not violate
any of appellants’ rights guaranteed by the II!linois Con-
stitution.’
IT]
We next consider whether Ordinance No. 81-11 vio-
lates the second arnendment to the United States Consti-
tution. While appellants all contend that Ordinance No.
81-11 is invalid under the second amendment, they offer
slightly different arguments to substantiate this conten-
tion. 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 comrnon defense, but also
to protect the individual. While reluctantly conceding
that Presser v. Illinois, 116 U.S. 252 (1886), heid that
the second amendment applied only ts action by the fed-
eral 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]lain-
tiffs ... have not suggested that the Morton Grove Ordi-
We note that Kalodimos +. Village of Morton Grove, 81 Ch.
6424 slip op. (Cook County, Ill. Jan. 29, 1982) in which Rei-
chert was one of several plaintiffs, is consistent with our anal-
ysis here.
A-15
nance in any way interferes with the ability of the
United States to maintain public security...” Quilici v.
Village of Morton Grove, 532 F. Supp. at 1169, Quilici
and Reichert argue in this court that the Morton Grove
Ordinance interferes with the federal government’s abil-
ity to maintain public security by preventing individuals
from defending themselves and the community from
“external or internal armed threats.” Quilici br. at 12:
Reichert br. at 37-38. These are the same arguments
made in the district court. Accordingly, we comment
only briefly on the points already fully analyzed in that
court's decision.
As we have noted, the parties agree that Presser is
controlling, but disagree as to what Presser held. It is
difficult to understand how appellants can assert that
Presser supports the theory that the second amendment
right to keep and bear arms is a fundamental right
which the state cannot regulate when the Presser deci-
sion plainly states that “[t]he Second Amendment de-
clares 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 (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 ». Village of Morton Grove,
032 F.Supp. at 1181-82. This argument borders on the
frivolous and does not warrant any further considera-
tion.
Apparently recognizing the inherent weakness of their
reliance on Presser, appellants urge three additional
arguments to buttress their claim that the second amenda-
ment applies to the states. They contend that: (1) Presser
is no longer good law because later Supreme Court
cases incorporating other amendments into the four-
teenth amendment have effectively overruled Presser,
Reichert br. at 52: (2) Presser is illogical, Quilici br. at
12; and (3) the entire Bill of Rights has been implicit-
A-16
ly incorporated into the fourteenth amendment to ap-
ply to the states, Reichert br. at 48-52.
None of these arguments has merit. First, appellants
offer no authority, other than their own opinions, to
support their arguments that Presser is no longer good
law or would have been decided differently today. In-
deed, the fact that the Supreme Court continues to cite
Presser, Malloy v. Hogan, 378 U.S. 1, 4 n.8 (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 incor-
poration is wholly unsupported. The Supreme Court has
specifically rejected the proposition that the entire Bill
of Rights applies to the states through the fourteenth
amendment. Adamson v. California, 332 U.S. 46 (1947),
overruled on other grounds, Malloy v. Hogan, 378 U.S. 1
(1964); Palko v. Connecticut, 302 U.S. 319 (1937); Twin-
ing wt. New Jersey, 211 U.S. 78 (1908).
Since we hold that the second amendment does not
apply to the states, we need not consider the scope of its
guarantee of the right 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 regu-
lated Militia being necessary to the security of a free
State, the right of the people to keep and bear Arms,
shail not be infringed.” U.S. Const. amend. II. Constru-
ing 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 pre-
cisely the manner in which the Supreme Court inter-
preted the second amendment in United States v. Miller,
307 U.S. 174 (1939), the only Supreme Court case spe-
cifically 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.
A-17
In an attempt to avoid the Viller holding that the
right to keep and bear arms exists only as it relates to
protecting the public security, appellants argue that
“[t]he fact that the right to keep and bear arms is joined
with language expressing one of its purposes in no way
permits a construction which limits or confines the
exercise of that right.” Reichert br. at 35. They offer no
explanation for how they have arrived at this conclu-
sion. Alternatively, they argue that handguns are mil-
itary weapons." Stengl’s br. at 11-13. Our reading of
Miller convinces us that it does not support eiher of
these theories. As the Village correctly notes, appellants
are essentially arguing that .Wi//er was wrongly decided
and should be overruled. Such arguments have no place
before this court. Under the controlling authority of
Miller we conclude that the right to keep and bear
handguns is not guaranteed by the second amendment.®
Because the second amendment is not applicable to
Morton Grove and because possession of handguns by
individuals is not part of the right to keep and bear
arms, Ordinance No. 81-11 does not violate the second
amendment.
IV
Finally, we consider whether Ordinance No. 81-11
violates the ninth amendment. Appellants argue that,
* 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 com-
ment on it, other than to note that we do not consider individ-
ually owned handguns to be military weapons.
* A similar conclusion has been reached by numerous other
courts. United States v. Oakes, 564 F.2d 394 (6th Cir. 1977),
cert. denied, 435 U.S. 926 (1978); United States v. Warin, 530
F.2d 103 (6th Cir.), cert. denied, 426 U.S, 948 (1976); Cody v.
United States, 460 F.2d 34, (8th Cir.), cert. denied, 409 U.S.
1010 (1972); Stevens v. United States, 440 F.2d 144 (6th Cir.
1971).
A-18
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 amend-
ment. Citing no authority which directly supports their
contention, they rely on the debates in the First Con-
gress and the writings of legal philosophers to establish
that the right of an individual to own and possess fire-
arms 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 spe-
cific right is protected by the ninth amendment, appel-
lants’ argument has no legal significance. Appellants
may believe the ninth amendment should be read to
recognize an unwritten, fundamental, individual right to
own or possess firearms; the fact remains that the Su-
preme Court has never embraced this theory."
v
Reasonable people may differ about the wisdom of
Ordinance No. 81-11. History may prove that the Ordi-
nance 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,
- a also argued, in the district court, that Ordi-
nance No. 81-11 violated the fifth amendment and is unconsti-
tutionally vague. These arguments were not raised in this court.
A-19
CoFFEY, Circuit Judge, dissenting.
The constitutions of the United States and the respec-
tive states define and delineate the powers of our various
governmental units. As a fundamental principle, if a
governing body (federal, state or local) should at any time
overstep its limits the judiciary must act as a con-
stitutional check. This was the intent of the framers of
the Constitution as evidenced by their dividing the
powers and responsibilities of the government into three
separate and distinct branches. Specifically, if a legis-
lative 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, | am need to dissent from my brethren today.
It is my opinion that the Village of Morton Grove has im-
properly legislated beyond the legitimate parameters of
its authority.
I base my conclusion upon three grounds. First, Morton
Grove Ordinance No. 81-11 is an impermissible attempt
by the governing body of the Village to address an issue
which the people of the State of Illinois through their
elected representatives have deemed to be a matter
properly resolved by state action. The state's long-
standing and comprehensive regulation and prohibition
of handgun possession preempts local legislation on the
subject. Second, and closely related to the first, I believe
that the Ordinance is invalid under the home rule
provisions of the Illinois Constitution in that the regula-
tion of handgun possession is a matter of statewide rather
than local concern and the Morton Grove Ordinance con-
tradicts state law regarding the possession of handguns.
Third, I believe that Morton Grove Ordinance No. 81-11,
as a matter of constitutional law, impermissibly in-
terferes 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
A-20
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 in-
croachments upon our personal freedom. Today's decision
sanctions an intrusion on our basic rights as citizens
which would no doubt be alarming and odious to our
founding fathers. For the above-cited reasons, which I
shall discuss in greater detail herein, I respectfully dis-
sent from the opinion of this court.
I,
The Village of Morton Grove’s Ordinance No. 81-11 is
invalid as the law is an improper attempt by the locality
to address a subject which has been deemed by the II-
linois Legislature to be exclusively a matter of state con-
cern 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 preemp-
tion 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 im-
plied intent to preempt that field to the exclusion of local
municipalities. In Ampersand, Inc. v. Finley, 61 I1l.2d
537, 888 N.E.2d 15 (1975), the Illinois Supreme Court
acknowledged and approved the following examples con-
tained in the Record of the Proceedings of the Sixth I]-
linois Constitutional Convention:
“‘Home Rule County adopts an ordinance providing
for limits upon rates of interest that may be charged
on mortgage and other loans to residents of the coun-
ty. 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 ertensive
federal and state regulation of credit institutions.’
* * *
A-2]
‘Home Rule City adopts an ordinance limiting the
rates that may be charged by the telephone company
for local calls. Long-standing state regulation of utilt-
ty rates precludes this subject from being considered a
matter pertaining to home-rule government and af-
joirs.””
Id. 388 N.E.2d at 17 (emphasis addea).
The Illinois Appellate Court has also recognized that
“where the legislature has adopted a scheme for regula-
tion of a given subject, local legislative control over such
phases of the subject as are covered by state regulation
ceases.” Hutchcraft Van Serv. v. City of Urbana, Ete.. 104
Ill.App.3d 817, 433 N.E.2d 329, 333 (1982).! The
Hutcheraft court held that “the legislature has preempted
the subject of freedom from unlawful discrimination.” Jd.
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.” /d. Similarly, the subject of the
prohibition of handgun possession has been impliedly
preempted by the Illinois Legislature because one would
be “hard-put to envision a more comprehensive Statutory
scheme than that” set forth in the state statutes on the
subject of handgun possession.
The Illinois Legislature, when enacting and amending
chapter 38, set forth an extensive scheme, applying to all
persons in Illinois, regulating who may possess firearms,
when and where they may possess firearms and the types
of firearms they may possess. Possession of a handgun or
other firearm by a minor, felon, drug addict or mentally
ill or retarded person is forbidden by Illinois statute. I]].
Rey, Stat. ch. 38, § 24-3.1.* Chapter 38, § 24-1(aX 10) of the
' On October 5, 1982, the Illinois Supreme Court denied a
etition for leave to appeal the Hutchcraft decision, Illinois
Supreme Court Docket No. 56635.
Ill. Rev. Stat. ch. 38, § 24-3.1 provides in pertinent part:
“24-3.1. Unlawful possession of firearms and firearm
ammunition,
(Footnote continued on following page)
A-22
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 cir-
cumstances is proscribed by Ill. Rev. Stat. ch. 38, § 24-
continued
_(a) A person commits the offense of unlawful posses:
sion of firearms or firearm ammunition when:
(1) He is under 18 years of age and has in his posses:
sion 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 convic
tion 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 fire
arm 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 ammu
nition in his possession; or
_(6) He is mentally retarded and has any firearms or
firearm ammunition in his possession; or
*_ * #*”
’ Til. Rev. Stat. ch. 38, § 24-1(a)(10) recites:
“Unlawful Use of Weapons. (a) A person commits the
offense of unlawful use of weapons when he knowingly:
* * *
(10) Carries or possesses on or about his person, upon
any public street, alley, or other public lands within the
corporate limits of a city, village or incorporated town,
except when an invitee thereon or therein, for the purpose
of the display of such weapon or the lawful commerce in
weapons. or except when on his land or in his own abode
or fixed place of business. any pistol, revolver, stun gun or
taser or other firearm.”
A-23
1(a)(4).4 Additionally, it is a violation of state law to
possess a firearm in an establishment licensed to sell li-
quor, wine or beer.® Moreover, the legislature has banned
the possession of specific types of firearms (i.e., machine
guns and sawed-off shotguns) in all circumstances but
has refrained from enacting such a categorical prohibi-
tion of handgun possession.*
* Til. Rev. Stat. ch. 38, § 24-1(a)(4) states
Ҥ 24-1. Unlawful Use of Weapons. (a) A person com
mits the offense of unlawful use of weapons when he
knowingly:
* * =
(4) Carries or possesses in any vehiche or concealed on
or about his person ney 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
* * *-"
Ill. Rev. Stat. ch. 38, § 24-1(a)(8) states
Ҥ 24.1. Unlawful Use of Weapons. (a) A person com
mits the offense of unlawful use of weapons when he
knowingly:
al ad *
(8) Carries or possesses any firearm, stun gun or taser
or other deadly weapon in any place which is licensed to
sell intoxicating beverages, or at any public gathering
held pursuant to a license issued by any governmental
body or any public gathering at which an admission is
charged, excluding a place where a showing, demonstra-
tion or lecture involving the exhibition of unloaded fire:
arms is conducted: or
* a =’
° Til. Rev. Stat. ch. 38, § 24-1(a)(7) provides:
Ҥ 24-1. Unlawful Use of Weapons. (a) A person com-
mits the offense of unlawful use of weapons when he
knowingly:
~*~ * *
(Footnote continued on following page)
A-24
As recognized by the majority, consideration was given
to the issue of firearm possession at Illinois’ Sixth Con-
Stitutional 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 99 af tho
19/0 Illinois Constitution allows the state legislature con-
siderable discretion in the regulation and prohibition of
firearm use and possession. It is pursuant to this authori-
ty that the State of Illinois enacted and enforces the ex-
tensive provisions of chapter 38. Where the legislature
after due deliberation has seen fit to outlaw the posses-
sion 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 ad-
dicts and mentally ill and retarded persons from possess-
ing 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 cir-
cumstances; (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 posses-
sion of a handgun within the confines of one’s home or
fixed place of business.
continued
(7) Sells, manufactures, purchases, possesses or car-
ries 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 altera-
tion, modification Or otherwise, if such weapon, as modi-
fied or aitered, 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 con-
taining 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 projec-
tiles; or
= - *"
A-25
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. extensivelv
and comprehensively addressed in the Illinois Statutes as
to impliedly indicate a positive legislative intent to ex-
clusively occupy the field. Therefore, Illinois munici-
palities are precluded from enacting provisions pro-
hibiting handgun possession.
Further support for the proposition that the Illinois
Legislature intended to peremptorily address the issue of
the prohibition of handguns and firearms is found when
comparing II]. Rev. Stat. ch. 38, § 24 (addressed above)
with Ill. Rev. Stat. ch. 38, § 83. Section 24, known as the
“Deadly Weapons Act,” sets forth the qualifications for
the lawful ownership and possession of firearms while
section 83 directs owners of firearms to obtain “Firearm
Owner's Identification Cards” issued by the Illinois
Department of Law Enforcement. Section 83 contains a
proviso authorizing municipalities to impose greater
restrictions or limitations on firearm registration and
possession than those imposed by the legislature under
section &3.
Pursuant to section 83, a municipality can enact an or-
dinance 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
* Tl. Rev. Stat. ch. 88, § &3-138.1 recites:
“Municipal Ordinance Imposing Greater Restrictions or
Limitations
The provisions of any ordinance enacted by any munic-
ipality which requires registration or imposes greater res-
trictions or limitations on the acquisition, possession and
transfer of firearms than are imposed by this Act, are not
invalidated or affected by this Act.”
A-26
83 does not allow a municipality such as Morton Grove to
categorically prohibit handgun possession. To limit or
restrict involves a circumscription which falls far short
of an absolute prohibition.
“The words ‘prohibit’ and ‘restrict’ are not syn-
UTEVTTOWST Teg are met mliles in tthoiix manning cir
their ordinary use. . ‘To restrict Is to restrain
within bounds: to limit; to confine and does not mean
to destroy or prohibit.’”
Fore st Land (‘0 Black, 216 §.C 255. 57 S.E.2d 420, 424
(1950).
If the intention of the Illinois Legislature had been to
authorize local prohibition of handgun possession, such
intention would have been clearly expressed as was the
authorization of local regulation through restriction and
limitation. As “{rjegulation is inconsistent with prohibi-
tion or exclusion,” the proviso to section 83 does not
minimize the implied intention of the legislature to ex-
clusively address the issue of handgun possession under
section 24. See Chicago Motor Coach Co. v. City of
Chicago, 337 Il. 200, 169 N.E. 22, 25 (1929).
The Illinois Legislature, by enacting and amending the
extensive provisions of cnapter 38, has prohibited certain
individuals from possessing firearms, forbidden posses-
sion of specific types of firearms and proscribed the
possession of firearms in certain places. Despite the [I-
linois Legislature’s refusal to prohibit handgun posses-
sion. Morton Grove has seen fit to disregard the leg-
islative intent and has enacted a categorical ban on
the possession of handguns, with limited exceptions. In
light of long-standing and extensive state control of
firearm ownership and possession, Morton Grove Or-
dinance No. 81-11 impermissibly addresses a subject
matter designated by the Illinois Legislature to be the ex-
clusive province of the state legislature.
IT.
The powers of Illinois home rule units are not without
limitation. The Illinois Constitution provides that a home
A-27
rule unit, such as Morton Grove, may “exercise any
power and perform any function pertaining to its govern-
ment and affairs. . . .” Ill. Const. Art. VII, § 6(a).
However, any exercise of home rule power by a
municipality must be “concurrent” with state legislation
in ine area, ir. Const. Art. V11, § 61). Morton Grove’s Or-
dinance No. 81-11 is invalid under the Illinois Constity-
tion because the matter of handgun prohibition is not one
solely pertaining to local government or loca! 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 or-
dinances which affected persons and governmenta]
bodies outside the home rule unit. See Landry v. Smith.
66 Ill.App.3d 606, 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.
“[TJhe 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. how ever,
that the powers of home rule units relate to their own
problems, not to those of the state or the netion.’”
Ampersand, 338 N.E.2d at 17 (emphasis added).
In its City of Des Plaines v. Chicago & N.W. Ry. Co., 65
I1].2d 1, 3857 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.” Td.
357 N.E.2d at 433. Of particular import to the City of Des
A-28
Plaines court was “the question of noise emission from
trains in transit which may pass through numerous
municipalities en route to their destination.” Jd. at 435.
Practical considerations regarding the Morton Grove
Ordinance show whv handa@n nossession is nronerly a
matter of statewide concern. Like the ordinance In-
validated in City of Des Plaines, the Morton Grove Or-
dinance 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 al] handguns in
Morton Grove whether by residents. non-residents. trav-
elers, ete.
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 reac-
quire possession when he leaves.“ Not only does this in-
fringe upon the citizen's right to travel and. arguably, in-
terfere with interstate commerce but it lends credence to
the distinct possibility that gun control in Illinois will be
no more than a crazy quilt of conflicting and unen-
forceable home rule ordinances. In this respect, it is im-
portant to remember that “a concomitant effect of this
unenforceability is an erosive disrespect for the law
which should not be tolerated.”° Experience has taught
* Ordinance No. 81-11 § 2(B) recites:
“No a hee shall possess, in the Village of Morton Grove
the following:
” * *
(3} Any handgun, unless the same has been rendered
permanently inoperative.”
Illinois law permits a handgun owner to transport a hand-
gun by car if the handgun is not immediately accessible to
the driver or any other occupant of the vehicle. See Ill. Rev.
Stat. ch. 38, §§ 24-l(aX4) and 24(2)(b)\4).
Peoples v. Abrahams, 40 N.Y.2d 277, 286, 353 N.E.2d 574
(1976)
A-29
mankind that the retention of unenforceable laws which
are regularly violated breeds contempt for the law in
general. Citizens must not be permitted to pick and
choose which laws they wish to obey.
The majui ity vpimiui fails w fecugiiize that the subject
of handgun possession poses problems that transcend
municipal boundaries and is thus not a loca! affair within
the meaning of the Illinois Constitution. The majority
flatly and cavalierly states that Illinois has “no over-
riding state interest in gun control which requires it
to retain exclusive control in order to prevent home rule
units from adopting conflicting enactments.” To support
this proposition, the majority relies without discussion on
(ity of Evanston «. Cre ate, Inc., 85 111.2d 101, 421 N.E.2d
196 (1981).
The Create decision, however, is inapposite to the in-
stant case. In Create, the Illinois Supreme Court held that
an Evanston landlord-tenant ordinance was a valid exer-
cise of Evanston’s home rule powers granted by the II-
linois Constitution. Landlord-tenant ordinances are. by
their very nature, matters of local concern since. like zon-
ing 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 dif-
ficulties which would arise if Home-Rule Unit A were to
pass an ordinance banning the possession of al] handguns
and Home-Rule Unit B were to pass an ordinance mak-
ing handgun possession mandatory. What is outlawed in
one municipality becomes mandatory in another. The I]-
A-30
linois Legislature never intended to permit the possibility
of a hodgepodge of conflicting home rule enactments
when it adopted Ill. Rev. Stat. ch. 38 to address the
Statewide issue of the prohibition of handgun ownership.
An analogy between the subject of gun control and the
field of children's health care further highlights the
propriety of statewide uniformity and enforcement. Due
to difficulties in enforcement and the need for statewise
uniformity, many states have passed legislation requiring
the immunization of schoo] age children against con-
tagious diseases. See, e.g.. Ill. Rev. Stat. ch. L11*, §§ 22.11
and 22.12. If local authorities were allowed to pass con-
flicting ordinances regarding the vaccination of schoo] age
children, the enforcement of these ordinances in multi
Ie diffion le if
, ; . 4 in a
ys, ’ . + + ‘ +} ; , + > 1’ vf }
m ANicipal scnooi districts w 11d be extremely dallficuit, if
tu
¢
Lm |
not impossible.
The Illinois Legislature has not enacted a categorical!
proninpition of Nandadgun possession, even tnougn it was tne
lew of the framers of the Illinois Constitution that
firearm possession was a matter of statewide concern and
that the state legislature had the power to ban handgun
possession, if it so desired. In the debates at the Sixth
Illinois Constitutional Convention which adopted the pres-
ent Illinois Constituticn, Delegate Foster. speaking for the
majority explained:
“We feel that .. . the state would have the right to
prohibit some classes of firearms. such as war
weapons, handguns, or some 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 al! handguns
. [and] it is still the position of the majority that
short of an absolute and complete ban on the posses-
sion 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.
A-3]
Delegate Foster’s comments demonstrate that it was
recognized by the Convention that firearm possession is a
matter of state concern. Despite the clear meaning of
Foster's words, the majority in the instant case concludes,
based on_ the Delegate’s remarks. that the framers of the
Illinois Constitution “envisioned that local governments
might exercise their police power to restrict. or prohibit,
the right to keep and bear arms.” (emphasis added). The
fallacy of the majority's logic is obvious; Delegate Foster
said that “the state would have the right to prohibit...
handguns” and “that under the police power of the state,
the legislature would have the authority, for example, to
forbid all handguns... .” (emphasis added). In fact.
Foster's remarks directly contradict, rather than Sup-
port, the majority’s conclusion that a local municipality
such as Morton Grove may prohibit handgun possession:
clearly, Foster's view was that handgun possession was a
matter of statewide concern best addressed by state
legislation.
The Morton Grove Ordinance prohibiting handgun
possession is invalid because it does not act concurrently
with the Illinois Legislature's extensive regulation of
firearm registration and possession. Black's Law Dic-
tionary defines “concurrent” as “united in agreement.”
BLACK’S LAW DICTIONARY 263 (Sth Ed. 1979). Morton
Grrove's prohibition of handgun possession is not “united
in agreement” with the state Statutory scheme but is fun-
damentally 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 direc-
tions. The legislature started from the point that all per-
sons 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. Mor-
A-32
ton 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
4 “a 4 . ; : - an Tllimeata attinamea
av uddis witli Ue legisiature’s will to allow Lilinois cvuzens
to possess handguns, except in very limited circum-
stances, because “the test of concurrent authority .
is the absence of conflict with the legislative will.”
Maryland v. D.C. Rifle & Pistol Ass'n. Ine. v.
Washington, 442 F.2d 128, 130 (D.C. Cir. 1971).
The second reason Morton Grove’s Ordinance does not
operate concurrently with state law is even more signifi-
cant. 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.” /d.
‘4. number of sections of chapter 38 of the Illinois
Statutes contain exceptions to the general provisions
which ban the possession of handguns under certain
circumstances. Of particular significance are those
statutory sections which expressly allow for the posses-
sion of handguns by individuals when in their homes, in
their fixed places of business or upon their land.!! The II-
linois Legislature has expressly authorized the citizens of
Illinois to carry handguns while present in certain
locations. Such authorization is directly nullified by Mor-
ton Grove Ordinance No. 81-11.
A municipal ordinance providing for the registration of
firearms was attacked in Brown v. City of Chicago, 42
Il].2d 501, 250 N.E.2d 129 (1969). Although the IIlinois
Supreme Court noted that the legislature had not
preempted the registration aspect of the subject of gun
control, the court did note that the ordinance would be
struck down if it contradicted the provisions of the
statute. The registration ordinance was upheld because
there was “no inconsistency or repugnancy” between it
11 See, eg., Ill. Rev. Stat. ch. 38, §§ 24-1(a)(4), (10).
A-33
and statutory provisions relating to firearm ownership
registration. /d. 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
reened ‘in the state sracutes. Mad'teorally, tne ordinance
iS inconsistent with the state regulatory scheme as
prohibition is inconsistent with regulation. I would find
no problem with Morton Grove requiring handgun
registration similar to that involved in Brown. Registra-
tion and prohibition, by their very nature, seek to achieve
different goals. Regulation through registration allows
possession subject to reasonable limits while prohibition
mandates an outright ban on possession.
As Morton Grove has impermissibly acted under its
home rule powers vis-a-vis Ordinance No. 81-11, it is the
obligation of this court to strike down the municipal
enactment. Clearly, the creation of a uniform regulatory
scheme concerning the possession of handguns is a
matter of statewide, or even federal concern, which
should not be disrupted by permitting this type of con-
tradictory local action.
ITT.
I find today’s decision particularly disturbing as it
Sanctions governmental action which I feel imper-
missibly 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 (1937), defined
fundamental rights as those rights “implicit in the con-
cept of ordered liberty.” Surely nothing could be more
fundamental to the “concept of ordered liberty” than the
basic right of an individual, within the confines of the
criminal law, to protect his home and family from unlaw-
ful and dangerous intrusions.
A-34
Article I, section 22 of the Illinois Constitution provides
that subject to the “police power,” the right of an in-
dividual to bear arms shall not be infringed. The United
States Supreme Court has noted the difficulty in at-
tempting to outline the parameters of a state's legitimate
police power. In Berman v. Parker, 348 U.S. 26 (1954),
addressing the concept of “police power,” the Supreme
Court stated that “an attempt to define its reach or trace
its outer limits is fruitless, for each case must turn on its
own facts.” /d. at 33. The term is neither “abstractly nor
historically capable of complete definition.” Jd. In enact-
ing 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. 486, 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 legisla-
tion. It is the duty of the courts to determine whether
there has been an “unreasonable invasion of private
rights.” Jd. at 922.
“Necessarily there are limits beyond which legisla-
tion cannot constitutionally go in depriving in-
dividuals of their natural rights and liberties. To
determine where the rights of the individual end and
those of the public begin is a question which must be
determined by the court.”
Id. 94 N.E. at 927.
In today’s decision this court has refused to take
cognizance of the natural right of an individual, within
the confines of the criminal law, to protect his home and
family from unlawful and dangerous intrusions. It is my
opinion that Morton Grove Ordinance No. 81-11 imper-
missibly interferes with the rights of Illinois citizens to
guard their personal security, subject to the limits of the
criminal law, and that it is the duty of this court to so
declare.
The court today has also refused to recognize the
tremendous impact of Morton Grove Ordinance No. 81-11
A-35
on personal privacy rights. There is no doubt that the
right to one’s privacy is afforded constitutional protec-
tion. The United States Supreme Court has repeatedly
recognized a right to privacy implicit in the federal con-
sireution and Aruele 1, section 6, of the Illinois Constitu-
tion expressly establishes a right to privacy. The IIlinois
provision has been interpreted by some members of the
Illinois Supreme Court as creating a direct light to
freedom from invasions of privacy by government or
public officials. See Stein v. Howlett, 52 I1].2d 570, 289
N.E.2d 409, 411, appeal dismissed, 412 U.S. 925 (1978).
The Morton Grove Ordinance, by prohibiting the
possession of a handgun within the confines of the home,
violates both the fundamental right to privacy and the
fundamental right to defend the home against unlawful
intrusion within the parameters of the criminal law.
There is no area of human activity more protected by the
right to privacy than the right to be free from un-
necessary government intrusion in the confines of the
home.
The unique importance of the home from time im-
memorial has been amply demonstrated in our con-
stitutional jurisprudence. Among the enumerated rights
in the Bill of Rights are the Third Amendment’s prohibi-
tion of quartering of troops in a private house in peace-
time and the right of citizens to be “secure in their. . .
houses . . . against unreasonable searches and seizures
... guaranteed by the Fourth Amendment. As early as
1886, the United States Supreme Court recognized that the
Fifth Amendment protects against all governmental! in-
vasions “of the sanctity of a man’s home and the privacies
of life.” Boyd v. United States, 116 U.S. 616, 630 (1886).
The First Amendment had been held to encompass the
right to “privacy and freedom of association in the home.”
Moreno v. United States Dep't of Agriculture, 345 F Supp.
310, 314 (D.D.C. 1972), affd, 413 U.S. 528 (1978).
In Stanley v. Georgia, 394 U.S. 557 (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
A-36
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 dis-
tinction 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.!2
The Court has made it clear that its Stan/ey 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
(1971), the Court rejected the argument that commer:
cial distribution of pornography is constitutionally pro-
tected and held that the “focus” of Stan/ey was “on
freedom of mind and thought and on the privacy of
one’s home.” Subsequently, the Court in L’nited States v.
Orito, 413 U.S. 139, 142 (1973) stated “the Constitution
extends special safeguards to the privacy of the home”
and there exists a “myriad” of activities which may be
prohibited in public but which may be lawfully con-
ducted within the privacy and confines of the home.
Most importantly, the Supreme Court in Paris Adult
Theatre I v. Slaton, 413 U.S. 49, 66 (1973), held that
Stanley was decided “on the narrow basis of the ‘privacy
of the home’ which was hardly more than a reaffirma-
tion that ‘a man’s home is his castle.’” (emphasis added).
2 IT am aware of Justice Marshall's comments contained in
footnote No. 11 of the Stanley decision. I believe however, as
noted herein, that subsequent decisions of the Court have di-
vested the footnote of any significance vis-a-vis this court’s
review of Morton Grove Ordinance No. 81-11.
A-37
Privacy in the home is a fundamental right under
both the federal and IIlinois Constitutions. This does not
mean, of course, that a person may do anything at any-
time as long as the activity takes place within a person s
home. Instead, the right to privacy is limited in two
important respects. First, the Supreme Court strictly
limited its Stanley holding to possession for purely pri-
vate, noncommercial use in the home. Second, as noted
in Stanley, the right to privacy must yield when it
Seriously interferes with the public welfare. The govern-
ment bears a heavy burden when attempting to justify
an expansion, as in gun control, of the “limited circum-
stances” in which intrusion into the privacy of a home is
permitted.
Morton Grove has not met that heavy burden. Without
question, the state may, should and has placed reasona-
ble restrictions on the possession of handguns outside
one’s home to protect the public welfare. However, Mor-
ton Grove’s prohibition of handgun possession within the
confines of a person’s own home has not been shown to
be necessary to protect the public welfare and thus vio-
lates the fundamental right to privacy.
The right to privacy is one of the most cherished
rights an American citizen has; the right to privacy sets
America apart from totalitarian states in which the
interests of the state prevail over individual rights. A
fundamental part of our concept of ordered liberty is
the right to protect one’s home and family against dan-
gerous intrusions subject to the criminal law. Morton
Grove, acting like the omniscient and paternalistic “Big
Brother” in George Orwell's novel, “1984”, cannot, in the
name of public welfare, dictate to its residents that they
may not possess a handgun in the privacy of their home.
To so prohibit the possession of handguns in the privacy
of the home prevents a person from protecting his home
and family, endangers law-abiding citizens and renders
meaningless the Supreme Court's teaching that “a man’s
home is his castle.”
IV
In summary, | believe a truly independent
judiciary
with discretion and reserva-
must exercise its powers
the other branches of
tion, giving due deference to
government. Our judicial responsibility, however, obli-
gates us to declare an act by another governmental unit
to be void if we believe the enacted law is contrary to
the principles of the Constitution. Because I believe that
the Morton Grove Ordinance as enacted is contrary
the principles of the Constitution, | must respectfully
dissent from the opinion of this court
to
A true Copy:
Teste:
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B-3
troversy IS a a termination of the mean ing of section 22. itself.
Section 22, on its face. require 7 a reconciliation of two com-
peting notions of individual right and legislative prerogative.
On one hand, it clearly recognizes the constitutional right of
the individual “to keep and bear arms,’ and provides that the
right “shall not be infringed.” Yet, at the same time. the sec-
tion expressly sanctions “constitutional inf fringem ents of the
right pursuant to the “police power,” which is generally
understoc 1d to mean the power of state and local governments
to regulate and even prohibit conduct which perceived to be
inimical to the safety, health and welfare of society. People 1
Warren, 11 Ill2d 420, 424-425 (1957). Accord Drvsdale l
Prudden, 195 N.C. 722, 143 S.E. 530, 536 (1928); ma Con-
trol Commission v. City of Calumet City, 28 Ill. App. 3d 279,
283 (Ist Dist. 1975)
The plaintiffs have advocated a broad and liberal interpreta-
tion of the individual right to keep and bear arms. and a
restrictive view o! the scope of the police power. That power,
they insist, must not be interpreted in a manner which would
allow it to circumscribe the individual right contained in sec-
tion 22. The defendant disagrees. veegsah Grove argues that
since the individual right in section 22 is made expressly sub-
ject to the broad power of the legislature, that right should be
construed narrowly, and the police power should be inter-
preted according to its usual and customary me aning, free
from artificially-imposed restrictions. Because the language
contained in section 22 itself offers no clue as to the proper
reconciliation of these two competing conc epts, the court finds
it necessary to examine the provision’s constitutional histor
the source traditionally relied upon for the clarification of am-
biguous constitutional provisions. See Cosentino vo County of
Adams, 82 MIl.2d 565, 413 N.E.2d 870 (1980): Client Follow-l ip
Co. v Hynes, 75 Il.2d 208, 390 N_E.2d 847 (1979); Wolfson 1
Avery, 6 Ill.2d 78, 126 N.E.2d 70} (1955): Davis v. Attic Club
96 Ill, App.3d 58, 371 N.E.2d 903 (1st Dist 1977)
While it is true that there are several sources upon which
one might draw in res lewing the constitutional history of a
DQ] > | Ver mn the onteyt f mTION )* no lary)
LICE powel iil Ue CONTEXT OF section and anv iimita-
t . ~— we i
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Lilt if LISIdGLUTE S DOWE if STIOTT Oran adsolute Dan on all firearms
"T"} + + + .
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ifidt Statement pre pUE C 1OHOWINE exchange
{I ICA
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ry rr +} , ’ thot F lie +} toa
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jrant 4 thy ictint Pyrat if _ 4} > + L- ’ ' va"
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the police pi ! \ coraing t \ r [ rf tT
He POTI VOW € CCOP€aIMN2 tO \ lr answer to [fe
7 t} ror Ke { ~~ 34 +} rn +
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MRS. LEAHY: Well, then vou have total abolition
and total right; and somewhere in between there
there are gradations.
MR. FOSTER: No, we don't have total abolition ver-
trey? hy * i } tet ' ‘ ' ' ‘
SUS (Old! rign We ave 1; ADO nm Versus biice
, ' rich rroitert ha th oT wer ¢ t¢ fii ‘
milinw"limi titai ‘ i/¥ cc HOWE! Villim
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sh . WU iat PLAGE i aid } }
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7 4 ’ +} ; r j {
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bys womr ec noer uy rmroat
i Ab?) . ‘ iiha' yVu 2 2
i
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MR FOSTER Yes IT) trie OpIon OF ine Malor;rits
> p , ee +7 ‘te . » 989 , mon teerl ton thon
3 Proceedings at 1688. Clearly, section 22 was presented to the
delegates as recognizing a narrow individual rig
Stantial legisiative control
From a review of the remarks of the delegates which follow-
ed Foster's explanation, it is clear that whatever their in-
dividual feelings about the right to arms, there was very little
[
disagreement about the effect of making that right subject to
B-7
the police power. As the debate progressed, two principal
views emerged with respect to the meaning of the right to arms
Provision in section 22. One group of delegates supported the
section, and seemed to adopt the view of the majority of the
committee that section 22 represented only a narrow right,
and limited virtually no exercise of the police power short of a
total ban on all firearms. Typical of this group was delegate
Durr:
[H]andguns are by far and away the problem in this
country and in this state, where there is a problem
with firearms or arms of any kind. This document
[Section 22] does not in any way attempt or intend,
as | read it and as I suspect the courts would read
it—and I've done some research on this—would not
restrict the state or the county or the city or any
other government within the confines of a
reasonable—that is the key word, reasonable—con-
trol over handguns. And | submit to you that that
would include the prohibition, if they reasonably
determine that handguns were an undue hazard.
3 Proceedings at 1717-1718. See also 3 Proceedings at 1709
(remarks of delegate Elward: “the plain language of the majori-
ty proposal ... denies almost nothing that the General
Assembly or any city council could do in the future.”).
A second group of delegates saw little distinction between a
limited right to keep “some form" of arms, and no right to
arms at all. While in apparent agreement with the committee
view that section 22 provided very little protection of an in-
dividual’s rights in the face of a proper exercise of the police
power, this group criticized the majority provision as being
totally illusory. E.g, 3 Proceedings at 1697 (remarks of
delegate Weisberg). Some of those delegates favored no right
to arms provision at all, and voted for the minority proposal to
exclude any right to arms provision from the constitution. E.g.,
3 Proceedings at 1708 (remarks of delegate Friedrich: “Frank-
B-8
[MJanvy of [the states] constitutional provisions are much more
enabling than the one that’s proposed here.”’); 1704 (remarks
lv. | don’t think what we're putting in ... is strong enough ...
of Father Lawlor, proposing, inter alia. the removal of the term
“police power’ from the provision). Most of those delegates
acknowledged that the inclusion of the term ‘police power
substantially undercut the right to arms. To the extent that one
looks to the convention debate for assistance in reconciling
the conflict between the right to arms and exercise of the
police power, the debate clearly supports a narrow construc-
yn of the individual right.
The plaintiffs, in urging the court to reject a narrow con-
struction of the right to arms, have sharply criticized any
significant reliance on the constitutional debates. First, they
argue that emphasis on the debates is misplaced because the
true inquiry in resolving constitutional ambiguities is to deter-
mine “the understanding ... by the voters who, by their vote,
have given life to the product of the convention.” Consentino
v. County of Adams, 82 \\l.2d at 569. See also Client Follow-Up
Co. v. Hynes, 75 Ill.2d at 222; Wolfson v. Avery, 6 Ill.2d at 88.
But see Winokur v. Rosewell, 83 I\].2d 92, 100-102 (1980) (rely-
ing on framers’ intent to clarify ambiguous constitutional pro-
vision). To determine the voters’ understanding, the plaintiffs
have requested the court to consider such additional sources
as: (1) The Official Explanation of section 22 which was provid-
ed to the voters prior to ratification of the constitution; (2)
Newspaper articles written at around the time of the ratifica-
tion vote discussing the right to arms provisions; and (3) The
It must be emphasized that the cases relied upon by the plaintiffs do
t
2
not support outright rejection of the delegates debate as a source of infor-
mation, but only suggest the consideration of alternative sources as an aid
to resolving constitutional ambiguities. See Client Follow-Up Co. v. Hynes,
75 Ill.2d at 220: “When the meaning of provisions of the constitution are in
doubt, it is appropriate to consult the debates of the delegates to the con-
stitutional convention to ascertain the meaning which they intended to
give those provisions.” See also, Wolfson v. Avery, © lll.2d at 88
B-9
“plain meaning” which ordinary voters might have attributed
to the term “police power.” None of those sources, however,
meaningfully addresses the reconciliation of individual right
and legislative power which section 22 requires.
The “Official Text of the Proposed 1970 Illinois Constitution
with Explanation” provides:
Section 22 Right to Arms
Subject only to the police power, the right of the in-
dividual citizen to keep and bear arms shall not be
infringed.
Explanation
This new section states that the right of the citizen to
keep and bear arms cannot be infringed, except as
the exercise of this right may be regulated by ap-
propriate laws to safeguard the welfare of the com-
munity.
Even taking the “Official Explanation” into consideration,
the court is unconvinced of the plaintiffs’ position. Far from
reconciling the tension between the exercise of the individual
right and the exercise of the police power, the above explana-
tion begs the question. Like the text of the section itself, the ex-
planation offers no clue as to the limits on the police power.
See Davis v. Attic Club, 56 Il. App.3d at 67 (rejecting reliance
on the “Official Explanation of the 1970 Proposed Constitu-
tion’ as being too conclusory and superficial).
Similarly, the court can find no meaningful reconciliation of
the two concepts in the Chicago Tribune article of December
13, 1970, which referred to the new right only sketchily as a
“new right... to keep and bear arms,” and summarize section
22 as providing “a guarantee of the individual's right to own
firearms.” No attention at all is devoted to the critical issue of
interpretation as to the limit on the police power.
Finally, the suggestion that the right to arms warrants a
liberal reading because that is how “the people” would read it
B-10
must be rejected. According to this argument, the voters did
not understand the full import of the term “police power”
when they ratified the constitution. Instead, they most likely
thought that they were ratifving a broad right to arms, one
which would not tolerate a total handgun ban. Therefore, the
plaintiffs argue that the court should give effect to the public's
perception of the right rather than its actual meaning. The
court cannot agree. Section 22 says explicitly that the in-
dividual right is subject to the police power. The Illinois
Supreme Court has defined that term to include the power “to
prohibit.” People v. Warren, 11 Ill.2d at 424-425. Sound prin-
ciples of construction require that “in those instances in which °
[the Illinois Supreme Court], prior to the adoption of the con-
stitution of 1970, has defined a term found therein, that it be
given the same definition, unless it is clearly apparent that
some other meaning was intended.” Bridgewater v. Hotz, 51
Il.2d 103, 109 (1972). The plaintiffs’ arguments to the contrary
are incorrect.
The plaintiffs’ final attack on the debates concerns the con-
flict between certain language in the Bill of Rights Committee
majority report on section 22 and the position taken by the
committee on the floor of the convention. The plaintiffs refer
the court to the following language in the report:
The substance of the right [contained in Section 22]
is that a citizen has the right to possess and make
reasonable use of arms that law-abiding persons
commonly employ for purposes of recreation or the
protection of person and property. Laws that attemp-
ted to ban all possession or use of such arms, or laws
that subjected possession or use of such arms or laws
that subjected possession or use of such arms to
regulations or taxes so onerous that all possession or
use was effectively banned, would be invalid.”
6 Proceedings at 87, citing People v. Brown, 253 Mich. 537.
541-542, 235 N.W. 245, 246-247 (1931); State v. Duke, 42 Tex.
a, ot
B-1 1
455, 458 (1875); /n re. Brickey, 8 Idaho 597, 70 P. 609 (1902):
People v. Zerillo, 219 Mich. 635, 189 N.W. 927 (1922): State v.
Kerner, 181 N.C. 574, 107 S.E. 222 (1921). The plaintiffs argue
first that those cases, decided under other states’ constitutions,
support their conclusion that the police power should be read
restrictively. Second, they argue that the mere fact that those
cases were included in the committee report serves as an in-
dication of the delegates’ intent that the police power should
be narrowly construed, contrary to the intent expressed on the
convention floor. The court rejects both of these arguments.
While the language used in some of these cases supports the
text used in the report, the cases themselves were decided
under distinctly different constitutional provisions. /n_ re
Brickey, for example, was decided 80 years ago, under a state
constitutional provision which stated:
The people have the right to bear arms for security
and defense, but the legislature shall regulate the ex-
ercise of this right by law.
70 P. at 609. In its opinion in Brickey, the Supreme Court of
Idaho held only that the inclusion of the term “regulate” in the
Idaho Constitution did not permit the legislature to prohibit
persons from carrying firearms. /d. The framers of the Illinois
Constitution did not choose to use the term “regulate” to limit
the Illinois right to arms. Instead, they used the expression
‘subject to the police power,’ which the Illinois Supreme Court
had already held to include the power to prohibit. See People
v. Warren, supra, In fact, the Illinois Supreme Court had
already stated that the police power specifically included the
power to prohibit firearms. Biffer v. City of Chicago, 278 Ill.
962 (1917). By including an express police power limitation.
the Illinois right to arms provision is simply different from
those of the other states.
A further distinction between section 22 and the other provi-
sions is that the Illinois right to arms provision has a clear con-
stitutional history which supports a narrow reading of the right
B-12
to arms. No such constitutional history is mentioned in the
two-paragraph Brickey opinion, or in the other cases cited by
the plaintiffs. E.g., State v. Kerner, supra. For these reasons.
the court finds the cases decided under other states’ constitu-
tional provisions unpersuasive in this case
Although the cases decided under other states’ constitutions
were mentioned in the committee report, little can be conclud-
ed merely from the fact of their mention in the report. For, on
the very page following its citation of /n re Brickey. the report
quoted with approval the following language from the Illinois
Supreme Court opinion in Biffer v. City of Chicago
lt is clear, under the authorities, that the sale
deadly weapons may be absolutely prohibited under
the police power of the State, and to do this in no
f the constitution
way conflicts with the provision of
of the United States and of various state constitutions
that “the people have a right to bear arms for their
defense and security
78 Ill. at 570. 6Proceedings at 88. The majority report then ad-
ie f
ded
Because arms pose an extraordinary threat to the
safety and good order of society, the possession and
use of arms is subject to an extraordinary degree of
control under the police powe!
6 Proceedings at 88. Contrary to the plaintiffs arguments, the
views contained in the committee report are certainly consis-
tent with the narrow reading of the right to arms expressed so
clearly by the delegates on the floor of the convention.
1 Simul iv, the reports faiur ik i its istra
’
Tie sot siuct rel } % ; essed FITS Comsiste til
. thy thes thers Pi tiue ‘ ‘ ‘ etuort “i
Wi i ‘ % ew i i | ; a
diated that i sf f frat ‘ ‘ ’ exraipstive
Nothing in the nittee report persuades the court t
disregar tre i@ar @XDIress i the delegates intent contain-
ed nine dehpates
\ tte i ire ’ : i\ ve ; F “ ig *? ‘ nstit ifi i 1] ? iste ry tT Gs ‘ hon
22. inciud ine actua iPuavge seq in the provision, the
text + thy 9 ¢ | ga? ate c thre ae ittes rep vt img tne
otner st) I . 1S ist | if { trie irl 7 & ludes that ine
rigvgntto arms I] SIS Ss fed OV the pe ict powe ritnata
Dal nN Nandadguns does @' ie (nat rignt. Un at ieast five
OCCASIONS, the venti iebates indicated that su 1)
VW ate ft Oe HT] | Stil if Na , Pri PCAINES al 1687
1693, 1718. and the court iwrees with that assessment. Fur-
thermore, the court concludes that as jong aS a law does not
totally an all firearms, itt must onl, jUalITV aS a Valid exercise of
tT t J) ‘ ) We! ! i ee he rv ive mstit ional Nalle Jt
inder section 22. Therefore, the narrow question remaining
tor tri¢ ry is whoertne? \] r? L9rOVe Ss eT } iment WaS A Tre.
. > | ; ' ’ »*
Der ¢ yercise Of the pe eS i AE oa f
Ry [ I iv trie ; SESS | ildl iw2uns 6)" privat LiZe 1S
‘“ ti } ‘CT r ers \] r? i 3! . ¢ nas 4, rie ? riher than either
ine State iegisiature or anv other n Inicipaulv in gun regula-
the either belore or alter the clusion of aright to arms in the
| . / + band 1} wert ; s* % .
iii \ 4 S ere re Ss HeceSSATY (O Give extre }t>-
ly Carel onsiderat fo the permissibie limits of the police
power as applied to the sweeping provisions of this ordinance
Despite the fact that no other court has been called upon to
consider a handgun ordinance of this scope, this court, when
considerin l€ pouce power of the state or municipality isnot
writing on a blank slate. The Illinois Supreme Court has
recently considered and restated the guiding principles by
which this court must be led in its review of an enactment
under the police power, See City of Carbondale v. Brewster 78
Hh2d 111 (1979) appeal disnussed, 446 U.S. 93] (1980). The
*
Carbondale court stated the following
power may be exer ised to protect the
?
public health, safety, morals, and general welfare or
'
' i : \ ‘
nvenience if TT 1 Va | exXerTCcIse oT pr
rhs <9 ; * ’ ?
WOWwWeT ilé l@ViSia iy! us til 1 re re ia-
; ryar ’ ’ * #h . rset ey? ; ;
MISHIp tO ON | iit re nm’ mrerests whnicn Is
vam y r\r eva | ‘ : ie) = ' ‘xntoasct ry ;
sougn to be protected, and the eans agopted must
*.? ; ' 7 *? ' * wu ,
constitute a reasonable met! ICCOMPHSN Suc
a ererminatio;r of
‘ bhitia ij
’ +?
i ne co the
if to determine not
: , ?~
i i are require
? quent
} , 2 . t . .
: ; whal Tit is jTt be if . CSS! ‘ ™ if ed S| it i m
, > Tt} t , | J , .
eres. ine { ' 2 [ ; Tey a
‘ * " ; ; ,
' mere ‘ A rie ry ere ~ 7 ’ ‘ tittle ré ’ ’
1) | iS f re Wisi | ‘ PANSITS 1 ePYnpneiie! \
} i H : i i i
14 “a> ee le — +*
. ~ ;
j I © be ue ’ j
5 y j ' +4 ry f ~ ’ ? ‘ ™* o™ i |
Jet tsi » Pe ‘i i ‘ — ons ; a v_ ; i Bi
standard Of a proper exercise OF tne e power is whether
‘ i * i }
thy, cf - ty c re is : ! Te SIC t rs ; . , é ey, s Ty ;
thig 4 clat re ; 1c fotorry 5 ' * hy thiroat ¢ ‘aar , }
i it} tae i 5 i 7
neaith, satetv and general weilare faniol tte)
af ’
’ ‘ +> ’ ; a ; * #) ’
Certainly, there can be no ques it the Mor Grove
1374 “GF 3 7 ‘ * ae ‘ ; y et a’? > P . y -“
radia hice iS OOF Le riit i i st ij ‘ rPsSrS VW ift PrOperT alllis
' ;
Mf ANY ePVere ce rine <fare ¢ ‘ go rs reamnhis try thie
: : '* ‘ ‘ . ; : 4 ; * ' i } t
fur ' ‘ ry ; ‘ ‘ +? * +r + } *? : | , #. .
raMMNaNCe GeTMOTStTates tiid CU Cd dnd Salety were
' a4 .
mpert ryet ' this ‘Y 1< ' thoy , ches ; \ rte? { rove The
Lip} ii bid thi bbbikl i i i j } iil
? ryo? ' ’
pore aiiiwit heb | iif ‘
+ t . = “4 ee . 4 ' ? tort : + #F ' rr re Y ty
WhiLhtAS, I Nas Deen dt Cd (hat in orde }
; r ' » 8 ‘ +? nct teats ryc4
promote and | if pita git) Sa@i@ly alld
; ;
if ' th ' ' ry’ ft reddit te th
Weldre OF LIe PUD S TOCESSal) PeRUI Ale it
‘ " r) \? fir r7ryys< ‘ ; +? ’ Cangerni
POSSE SS10T) (j bift’a i | j iit UdiikerOUs
weapons and
IE "p
of Morton Grove have found and determined that
ree ; . + .
the easv and convement availability of certain tvpes
f firearms and weapons have increased the poten-
tiaiity of firearms reiated deaths and injunes, and
WHEREAS, handguns play a major role in the com-
niss tf ©, aggravated assault, and armed
roopery, and a lenta ry and deati
rT} : , ? '. : 3° , i” Zé 7 7 ’ ry ¥ ?
; ‘ ; i t 1; } “clit . Tift | 7% ; ‘ i ti ’
iW « ' » 1S iris | ‘ ‘ Gicts uy \ ae cg? ré iT 1S +, a
ry aut? myrnie}t ’ eV | trye t WeT See Ry Mis { f
é * ; ; ; ae ** ; ; ** s é i *
i} CaZ20 }) | J ; ~ | ete 1% if g ( } T Te irearms
Tt
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