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QUILICI v. VILLAGE OF MORTON GROVE

December 29, 1981

VICTOR D. QUILICI, PLAINTIFF,
v.
VILLAGE OF MORTON GROVE, DEFENDANT. ROBERT STENGL, ET AL., PLAINTIFFS, V. VILLAGE OF MORTON GROVE, ET AL., DEFENDANTS. GEORGE L. REICHERT, ET AL., PLAINTIFFS, V. VILLAGE OF MORTON GROVE, DEFENDANT.



The opinion of the court was delivered by: Decker, District Judge.

  MEMORANDUM OPINION AND ORDER

This is a civil action challenging the constitutionality of a gun control ordinance passed by the Trustees of the Village of Morton Grove. On June 8, 1981, the Morton Grove Board of Trustees enacted Ordinance # 81-11, entitled "An Ordinance Regulating the Possession of Firearms and Other Dangerous Weapons." (A copy of the ordinance is attached as an appendix.) In part, the ordinance provides that "no person shall possess, in the Village of Morton Grove . . . [a]ny handgun, unless the same has been rendered permanently inoperative." The ordinance specifies various limited exceptions for certain individuals, such as peace officers, prison officials, and members of the armed forces and national guard. The ordinance also exempts licensed gun collectors and provides that handgun owners are free to retain their operative handguns for recreational use, as long as the guns are kept and used on the premises of licensed gun clubs and certain other rules are met. Violation of the ordinance is punishable by fines of up to $500.00, and incarceration for up to six months for repeat offenders.

Consolidated here are three civil suits, filed shortly after the enactment of the ordinance, by several residents of Morton Grove.*fn1 The plaintiffs have alleged that the enforcement of the ordinance, which has been stayed pending this court's ruling on its validity, would violate both the Illinois and United States constitutions. Both sides have moved for summary judgment on the issue of whether the ordinance, on its face, violates article 1, section 22 of the Illinois Constitution, or the Second, Fifth, Ninth or Fourteenth Amendments to the United States Constitution. Because the state constitutional issue is potentially dispositive, the court will first address the validity of Ordinance # 81-11 under the Illinois Constitution.

The Right to Arms Under the Illinois Constitution

In 1970, a right to arms clause was included in the Illinois Constitution for the first time. Article 1, section 22 provides:

Right to Arms

  Subject only to the police power, the right of the
  individual citizen to keep and bear arms shall not
  be infringed.

The plaintiffs have contended that Morton Grove's ordinance impermissibly infringes upon that right, while the defendant claims that its action represents a valid exercise of the police power. Central to the court's resolution of this controversy is a determination of the meaning of section 22, itself.

Section 22, on its face, requires a reconciliation of two competing notions of individual 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 section expressly sanctions "constitutional infringements" of the right pursuant to the "police power," which is generally understood to mean the power of state and local governments to regulate and even prohibit conduct which is perceived to be inimical to the safety, health and welfare of society. People v. Warren, 11 Ill.2d 420, 424-25, 143 N.E.2d 28 (1957). Accord, Drysble v. Prudden, 195 N.C. 722, 143 S.E. 530, 536 (1928); Liquor Control Commission v. City of Calumet City, 28 Ill. App.3d 279, 283, 328 N.E.2d 153 (1st Dist. 1975).

The plaintiffs have advocated a broad and liberal interpretation of the individual right to keep and bear arms, and a restrictive view of the scope of the police power. That power, they insist, must not be interpreted in a manner which would allow it to circumscribe the individual right contained in section 22. The defendant disagrees. Morton Grove argues that since the individual right in section 22 is made expressly subject to the broad power of the legislature, that right should be construed narrowly, and the police power should be interpreted according to its usual and customary meaning, free from artificially-imposed restrictions. Because the language contained in section 22 itself offers no clue as to the proper reconciliation of these two competing concepts, the court finds it necessary to examine the provision's constitutional history, the source traditionally relied upon for the clarification of ambiguous constitutional provisions. See Cosentino v. County of Adams, 82 Ill.2d 565, 46 Ill.Dec. 116, 413 N.E.2d 870 (1980); Client Follow-Up Co. v. Hynes, 75 Ill.2d 208, 28 Ill.Dec. 488, 390 N.E.2d 847 (1979); Wolfson v. Avery, 6 Ill.2d 78, 126 N.E.2d 701 (1955); Davis v. Attic Club, 56 Ill. App.3d 58, 13 Ill.Dec. 811, 371 N.E.2d 903 (1st Dist. 1977).

While it is true that there are several sources upon which one might draw in reviewing the constitutional history of a provision, "the practice of consulting the debates of the members of the convention . . . has long been indulged in by courts as aiding to a true understanding of the meaning of provisions that are thought to be doubtful." Burke v. Snively, 208 Ill. 328, 344-45, 70 N.E. 327 (1904), quoted with approval in Coalition for Political Honesty v. State Board of Elections, 65 Ill.2d 453, 467, 3 Ill.Dec. 728, 359 N.E.2d 138 (1976); Wolfson v. Avery, 6 Ill.2d at 88, 126 N.E.2d 701; Davis v. Attic Club, 56 Ill. App.3d at 67-70, 13 Ill.Dec. 811, 371 N.E.2d 903. In this case, the court has found the delegates' debate on section 22 helpful to a meaningful reconciliation of the individual's right to arms and the state's broad police powers.

Prior to the delegates' floor debate on section 22, the Bill of Rights Committee voted twelve to three to include the following right to arms provision in the new constitution:

  Subject only to the police power of the State, the
  right of the individual citizen to keep and bear
  arms shall not be infringed.

Vol. 6, Record of Proceedings, Sixth Illinois Constitutional Convention [hereinafter "Proceedings"] 84.*fn2 Leonard Foster, the spokesman for the majority of the committee, was responsible for explaining the provision to the delegates. Although his explanation necessitated a narrow construction of the individual's right to arms, Foster suggested a resolution of the apparent tension between the section's terms. According to Foster, section 22 stood only for the limited right of the individual citizen to keep and bear "some form" of firearm; and as long as the government, in the exercise of its police power, did not totally prohibit the possession of all firearms, the right provided for in section 22 was not violated. 3 Proceedings at 1687, 1689, 1718 (remarks of delegate Foster).

Although the right to arms described by delegate Foster might have appeared on its face to be evanescent, Foster told the convention that under the 1870 Illinois Constitution, which contained no right to arms provision at all, a total prohibition of firearms was possible, and that the proposed section was designed to do no more than eliminate that possibility:

  It could be argued that, in theory, the
  legislature now has the 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. Nothing further.

3 Proceedings at 1688. Later in the debate, Foster emphasized just how limited the proposed right to arms would be:

  [S]hort 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.
  It is the position of the majority that under the
  police power of the state, the legislature would
  have the authority, for example, to forbid all
  handguns.

3 Proceedings at 1718 (order inverted). Foster characterized the committee as "very reluctant" to include any right to arms provision at all in the new constitution, 3 Proceedings at 1687, and indicated clearly in his remarks that once the committee finally decided to include such a provision, that provision was intended to be construed narrowly, and fully subject to the broad police power.

During the debate, several of the delegates questioned Foster specifically with respect to the meaning of the term "police power" in the context of section 22, and any limitations which section 22 might impose upon the legislature. Foster was unequivocal: Section 22 would restrain no exercise of the legislature's power short of an absolute ban on all firearms. That statement prompted the following exchange:

  MR. FAY: Well, is that the extent of it? MR.
  FOSTER: This is the extent of it, Mr. Fay.
  MRS. LEAHY: For a while, I had thought that
  perhaps the proposal might be a nullity — that you
  granted the right, but it could be taken away under
  the police power. According to your answer to the
  question asked by Mr. Fay, there is one exception
  to that police power [being] exercised, and that
  would be the total taking away?

MR. FOSTER: Right.

  MRS. LEAHY: Well, then you have total abolition
  and total right; and somewhere in between there,
  there are gradations.
  MR. FOSTER: No, we don't have total abolition
  versus total right. We have total abolition versus
  limited right — right limited by the police power
  extending up to but not including total abolition.
  MRS. LEAHY: Anything short of total abolition
  [that] is justified as reasonable for the safety,
  then, would be approved under your proposal?

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

3 Proceedings at 1688. Clearly, section 22 was presented to the delegates as recognizing a narrow individual right which was subject to substantial legislative control.

From a review of the remarks of the delegates which followed Foster's explanation, it is clear that whatever their individual feelings about the right to arms, there was very little disagreement about the effect of making that right subject to the police power. As the debate progressed, two principal views emerged with respect to the meaning of the right to arms provision in section 22. One group of delegates supported the section, and seemed to adopt the view of the majority of the committee that section 22 represented only a narrow right, and limited virtually no exercise of the police power short of a total ban on all firearms. Typical of this group was delegate Durr:

  [H]and guns are by far and away the problem in
  this country and in this state, where there is a
  problem with firearms or arms of any kind. This
  document [Section 22] does not in any way attempt
  or intend, as I read it and as I suspect the
  courts would read it — and I've done some research
  on this — would not restrict the state or the
  county or the city or any other government within
  the confines of a reasonable — that is the key
  word, reasonable — control over hand guns. And I
  submit to you that that would include the
  prohibition, if they reasonably determined that
  hand guns were an undue hazard.

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 individual's rights in the face of a proper exercise of the police power, this group criticized the majority provision as being totally illusory. E.g., 3 Proceedings at 1697 (remarks of delegate Weisberg). Some of those delegates favored no right to arms provision at all, and voted for the minority proposal to exclude any right to arms provision from the constitution. E.g., 3 Proceedings at 1713 (remarks of delegate Tomei), 1720 (remarks of delegate Thompson). Others supported a strong constitutional right to arms, and eventually voted for the majority proposal, but only after making it clear to the convention that they felt it too weak. See 3 Proceedings at 1708 (remarks of delegate Friedrich: "Frankly, I don't think what we're putting in . . . is strong enough. . . . [M]any of [the states'] constitutional provisions are much more enabling than the one that's proposed here."); 1704 (remarks 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 the exercise of the police power, the debate clearly supports a narrow construction of the individual right.

The plaintiffs, in urging the court to reject a narrow construction of the right to arms, have sharply criticized any significant reliance on the constitutional debates. First, they argue that emphasis on the debates is misplaced because the true inquiry in resolving constitutional ambiguities is to determine "the understanding . . . by the voters who, by their vote, have given life to the product of the convention." Cosentino v. County of Adams, 82 Ill.2d at 569, 46 Ill.Dec. 116, 413 N.E.2d 870. See also Client Follow-Up Co. v. Hynes, 75 Ill.2d at 222, 28 Ill.Dec. 488, 390 N.E.2d 847; Wolfson v. Avery, 6 Ill.2d at 88, 126 N.E.2d 701. But see Winokur v. Rosewell, 83 Ill.2d 92, 100-102, 46 Ill.Dec. 671, 414 N.E.2d 724 (1980) (relying on framers' intent to clarify ambiguous constitutional provision).*fn3 To determine the voters' understanding, the plaintiffs have requested the court to consider such additional sources as: (1) The Official Explanation of section 22 which was provided to the voters prior to ratification of the constitution; (2) Newspaper articles written at around the time of the ratification vote discussing the right to arms provisions; and (3) The "plain meaning" which ordinary voters might have attributed to the term "police power." None of those sources, however, 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
  individual citizen to keep and bear arms shall not
  be infringed.

Explanation

  This new section states that the right of the
  citizen to keep and bear arms cannot be infringed,
  except as the exercise of this right may be
  regulated by appropriate laws to safeguard the
  welfare of the community.

Similarly, the court can find no meaningful reconciliation of the two concepts in the Chicago Tribune article of December 13, 1970, which referred to the new right only sketchily as a "new right . . . to keep and bear arms," and summarized section 22 as providing "a guarantee of the individual's 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 must be rejected. According to this argument, the voters did not understand the full import of the term "police power" when they ratified the constitution. Instead, they most likely thought that they were ratifying a broad right to arms, one which would not tolerate a total handgun ban. Therefore, the plaintiffs argue that the court should give effect to the public's perception of the right rather than its actual meaning. The court cannot agree. Section 22 says explicitly that the individual right is subject to the police power. The Illinois Supreme Court has defined that term to include the power "to prohibit." People v. Warren, 11 Ill.2d at 424-25, 143 N.E.2d 28. Sound principles of construction require that "in those instances in which [the Illinois Supreme Court], prior to the adoption of the constitution of 1970, has defined a term found therein, that it be given the same definition, unless it is clearly apparent that some other meaning was intended." Bridgewater v. Hotz, 51 Ill.2d 103, 109, 281 N.E.2d 317 (1972). The plaintiffs' arguments to the contrary are incorrect.

The plaintiffs' final attack on the debates concerns the conflict between certain language in the Bill of Rights 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 attempted to ban all possession or use of
  such arms, or laws that subjected possession or
  use of such arms to regulations or taxes so
  onerous that all possession or use was effectively
  banned, would be invalid."

6 Proceedings at 87, citing People v. Brown, 253 Mich. 537, 541-42, 235 N.W. 245, 246-47 (1931); State v. Duke, 42 Tex. 455, 458 (1875); In re. Brickey, 8 Idaho 597, 70 P. 609 (1902); People v. Zerillo, 219 Mich. 635, 189 N.W. 927 (1922); State v. Kerner, 181 N.C. 574, 107 S.E. 222 (1921). The plaintiffs argue first that those cases, decided under other states' 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 indication 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. In re Brickey, for example, was decided 80 years ago, under a state constitutional provision which stated:

  The people have the right to bear arms for
  security and defense, but the legislature shall
  regulate the exercise of this right by law.

A further distinction between section 22 and the other provisions is that the Illinois right to arms provision has a clear constitutional history which supports a narrow reading of the right to arms. No such constitutional history is mentioned in the two-paragraph Brickey opinion, or in the other cases cited by the plaintiffs. E.g., State v. Kerner, supra. For these reasons, the court finds the cases decided under other states' constitutional provisions unpersuasive in this case.

Although the cases decided under other states' constitutions were mentioned in the committee report, little can be concluded merely from the fact of their mention in the report. For, on the very page following its citation of In re Brickey, the report quoted with approval the following language from the Illinois Supreme Court opinion in Biffer v. City of Chicago:

  It is clear, under the authorities, that the sale
  of deadly weapons may be absolutely prohibited
  under the police power of the State, and to do
  this in no way conflicts with the provision of the
  constitution of the United States and of various
  state constitutions that "the people have a right
  to bear arms for their defense and security."

278 Ill. at 570, 116 N.E. 182. 6 Proceedings at 88. The majority report then added:

  Because arms pose an extraordinary threat to the
  safety and good order of society, the possession
  and use of arms is subject to an extraordinary
  degree of control under the police power.

6 Proceedings at 88. Contrary to the plaintiffs' arguments, the views contained in the committee report are certainly consistent with the narrow reading of the right to arms expressed so clearly by the delegates on the floor of the convention.*fn4 Nothing in the committee report persuades the court to disregard the clear expression of the delegates' intent contained in the debates.

After carefully reviewing the constitutional history of section 22, including the actual language used in the provision, the text of the convention debates, the committee report, and the other sources discussed above, the court concludes that the right to arms in Illinois is so limited by the police power that a ban on handguns does not violate that right. On at least five occasions, the convention debates indicated that such a ban would not be unconstitutional, 3 Proceedings at 1687, 1689, 1693, 1718, and the court agrees with that assessment. Furthermore, the court concludes that as long as a law does not totally ban all firearms, it must only qualify as a valid exercise of the police power in order to survive constitutional challenge under section 22. Therefore, the narrow question remaining for the court is whether Morton Grove's enactment was a proper exercise of the police power.

By banning the possession of handguns by private citizens within its borders, Morton Grove has gone further than either the state legislature or any other municipality in gun regulation, either before or after the inclusion of a right to arms in the Illinois Constitution. Therefore, it is necessary to give extremely careful consideration to the permissible limits of the police power as applied to the sweeping provisions of this ordinance.

Despite the fact that no other court has been called upon to consider a handgun ordinance of this scope, this court, when considering the police power of the state or municipality, is not writing on a blank slate. The Illinois Supreme Court has recently considered and restated the guiding principles by which this court must be led in its review of an enactment under the police power. See City of Carbondale v. Brewster, 78 Ill.2d 111, 34 Ill.Dec. 832, 398 N.E.2d 829 ...


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