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