The opinion of the court was delivered by: Decker, District Judge.
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:
Vol. 6, Record of Proceedings, Sixth Illinois Constitutional
Convention [hereinafter "Proceedings"] 84.
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:
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. FOSTER: Right.
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:
(rejecting reliance on the
"Official Explanation of the 1970 Proposed Constitution" as
being too conclusory and superficial).
Similarly, the court can find no meaningful reconciliation of
the two concepts in the Chicago Tribune article of December 13,
1970, which referred to the new right only sketchily as a "new
right . . . to keep and bear arms," and summarized section 22
as providing "a guarantee of the individual's 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:
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:
70 P. at 609. In its opinion in Brickey, the Supreme Court of
Idaho held only that the inclusion of the term "regulate" in
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.
Certainly, there can be no question that the Morton Grove
ordinance is oriented to those interests which are proper aims
of any exercise of the state's police power. The preamble to
the ordinance demonstrates that the public health and safety
were uppermost in the minds of the Trustees of Morton Grove.
The preamble states:
The public health and safety are proper police power
objectives. Illinois courts have consistently held firearms
controls to be within the purview of the police power. See
Brown v. City of Chicago,
(declaring Chicago firearms registration ordinance valid);
Biffer v. City of Chicago, supra (declaring Chicago ordinance
restricting sale of concealable weapons valid); Rawlings v.
Department of Law Enforcement, 73 Ill. App.3d 267, 29 Ill.Dec.
(3d Dist. 1979) (declaring Illinois statute
prohibiting, inter alia, former mental patients from obtaining
gun licenses to be a valid exercise of the police power);
People v. Williams, 60 Ill. App.3d 726, 18 Ill.Dec. 132,
(1st Dist. 1978) (declaring Illinois concealed
weapons statute valid). Here, too, the court concludes that
Morton Grove's firearms ordinance is properly related to the
public health and safety.
The above finding that the interests sought to be protected
by the Trustees of Morton Grove may properly be the targets of
an exercise of the police power does not end this court's
inquiry. The question remains whether the Morton Grove
ordinance, which effectively bans the possession of any
handguns, is a reasonable method of promoting the interests of
public health and safety.
In addition, the court is not to decide whether the means
selected by the legislature are the best way to deal with the
perceived problem, or whether other alternatives available
would have been better. As quoted above, "The court will not
disturb a police regulation merely where there is room for a
difference of opinion as to its wisdom, necessity, and
expediency." City of Carbondale, 78 Ill.2d at 115, 34 Ill.Dec.
832, 398 N.E.2d 829. See Memorial Gardens Assoc. v. Smith,
16 Ill.2d 116, 156 N.E.2d 587, appeal dismissed, 361 U.S. 31, 80
S.Ct. 121, 4 L.Ed.2d 98 (1959); State Dental Society v. Sutker,
76 Ill. App.3d 240, 32 Ill.Dec. 67, 395 N.E.2d 14 (1st Dist.
1979), cert. denied, 447 U.S. 930, 100 S.Ct. 3029, 65 L.Ed.2d
The appropriate test is one of arbitrariness. City of
Carbondale, 78 Ill.2d at 115, 34 Ill.Dec. 832, 398 N.E.2d 829.
A prediction that the present ordinance may not be a panacea
for all of the problems arising from the possession and use of
handguns would not prove the plaintiffs' contention that this
ordinance is arbitrary and simplistic. If the present ordinance
was adopted on the expectation of the Trustees that it would
serve to inch the Morton Grove community one step further to
becoming peaceable and safe, this would justify the use of the
police power. Many social experiments have only small
In addition to claiming that Morton Grove's exercise of its
police power is "arbitrary and simplistic," plaintiffs also
argue that the ordinance is invalid because it is a prohibition
of the possession of handguns, rather than a regulation of
their use. Plaintiffs rely on In re Brickey, supra, and Andrews
v. State, 50 Tenn. 165 (1871), to suggest that the police power
does not include the power to prohibit.
That argument by the plaintiffs misstates current Illinois
law. As stated above, the police power does include the power
to prohibit. "In the exercise of its inherent police power, the
legislature may enact laws regulating, restraining or
prohibiting anything harmful to the welfare of the people, even
though such regulation, restraint or prohibition interferes
with the liberty or property of an individual." People v.
Warren, 11 Ill.2d at 424-25, 143 N.E.2d 28 (emphasis added).
See Biffer v. City of Chicago, supra; Liquor Control Commission
v. City of Calumet City, supra.
Given that the Morton Grove ordinance is a reasonable
response to the problems seen by the Trustees, it is not
automatically invalid because it is a prohibition rather than
In sum, this court concludes that the Morton Grove ordinance
has as its basis the proper goals of protecting the safety and
health of the people. In addition, the court finds that the
ordinance does not represent a complete ban on firearms, and is
reasonable and neither arbitrary nor simplistic. The ordinance
was both properly and validly enacted under Morton Grove's
police power. Therefore, the court concludes that ordinance #
81-11 does not violate any of the plaintiffs' rights under the
Defendant Morton Grove's main response to plaintiffs'
arguments is extremely simple. The Village points to the
Supreme Court's decision in Presser v. Illinois, 116 U.S. 252,
6 S.Ct. 580, 29 L.Ed. 615 (1886), in which the Court held that
the prohibitions of the Second Amendment limited only the power
of the United States Congress, and not the power of the
individual states. Since this court is bound by the
pronouncement of the Supreme Court, the Village argues that
plaintiffs' contentions are largely irrelevant. In the
alternative, Morton Grove also controverts the specific
arguments made by the plaintiffs. The defendant claims that the
Second Amendment does not create an individual right, but
merely prohibits legislation that would impair the states'
right to have a militia. See, United States v. Miller,
307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939). Also, the Village
specifically refutes each of the plaintiffs' arguments,
contending that they are not supported by common law
traditions, the history of the Second Amendment, early state
court decisions, or the statements of the framers of the
Fourteenth Amendment. While some of those arguments are
persuasive, there is no purpose in considering them further in
view of the controlling Presser decision.
At issue in Presser was an Illinois statute which forbade
private organizations from parading with arms in any city or
town of the state, without a license from the Governor. Presser
was convicted and fined for violating the statute. On Appeal to
the Supreme Court, Presser claimed that the Illinois provision
infringed his Second Amendment right. The Court rejected that
argument, stating as follows:
Id. 116 U.S. at 265, 6 S.Ct. at 584. The obvious holding of
Presser is that the Second Amendment was not incorporated into
the Fourteenth, and that it does not serve as a check on the
power of the state legislature or municipal councils in
The Supreme Court has never reconsidered its holding in
Presser. Consequently, that opinion stands as the Supreme
Court's most recent pronouncement on the issue of whether the
Second Amendment was incorporated into the Fourteenth Amendment
so as to limit the power of the states. It is a truism that the
district court is bound by the holdings of the Supreme Court to
the extent that they bear on questions before the district
court. Hendricks County Rural Electric Membership Corp. v.
NLRB, 627 F.2d 766 (7th Cir. 1980), rev'd on other grounds, ___
U.S. ___, 102 S.Ct. 216, 70 L.Ed.2d 323 (1981). That rule
applies irrespective of the age of the Supreme Court opinion,
the district judge's personal opinion of the validity of the
Supreme Court's action, or whether he believes the Supreme
Court would rule as it did if the issue were again before it.
United States v. Chase, 281 F.2d 225 (7th Cir. 1960); Sullivan
Outdoor Advertising, Inc. v. Department of Transportation,
420 F. Supp. 815 (N.D.Ill. 1976).
Plaintiffs make two principal arguments in urging that this
court not follow the holding in Presser.*fn5 They argue first
that Presser, when read properly, actually supports, rather
than contradicts, their contention that the ordinance is
unconstitutional. Second, they claim that irrespective of how
Presser is read, it is no longer good law; in effect saying
that the later cases incorporating several of the first ten
amendments into the Fourteenth Amendment overrule Presser sub
silentio. Neither of those arguments is persuasive.
Plaintiffs seize upon the phrase in Presser that "the States
cannot, even laying the constitutional provision in question
out of view, prohibit the people from keeping and bearing
arms . . .," 116 U.S. at 265, 6 S.Ct. at 584, to support their
argument that defendant has misread that decision. When the
phrase is read in context, however, it actually supports Morton
Grove's position in this case, not the plaintiffs'.
The entire phrase referred to above, from which the
plaintiffs have relied on but a portion, reads as follows:
[T]he States cannot, even laying the
constitutional provision in question out of view,
prohibit the people from keeping and bearing arms,
so as to deprive the United States of their
rightful resource for maintaining the public
security, and disable the people from performing
their duty to the general government.
Id. Plaintiffs here have not suggested that the Morton Grove
ordinance in any way interferes with the ability of the United
States to maintain public security, nor could they make an
argument to that effect. Irrespective of the Constitutional
framers' fear of a national standing army, the United States
currently has one and relies upon it, not upon armed private
citizens, to maintain public security.
In relying upon the above quoted phrase, plaintiffs also
overlook the immediately previous sentence in Presser, in which
the Supreme Court cites Mayor of New York v. Miln, 36 U.S. (11
Pet.) 102, 9 L.Ed. 648 (1837). At the place cited to in
Presser, the Court in Miln said the following:
[A] state has the same undeniable and unlimited
jurisdiction over all persons and things, within
its territorial limits, as any foreign nation;
where that jurisdiction is not surrendered or
restrained by the constitution of the United
States. That, by virtue of this, it is not only
the right, but the bounden and solemn duty of a
state, to advance the safety, happiness and
prosperity of its people, and to provide for its
general welfare, by any and every
act of legislation, which it may deem to be
conducive to these ends; where the power over the
particular subject, or the manner of its exercise
is not surrendered or restrained, in the manner
just stated. That all those powers which relate to
merely municipal legislation, or what may,
perhaps, more properly be called internal police,
are not thus surrendered or restrained; and that,
consequently, in relation to these, the authority
of a state is complete, unqualified and exclusive.
36 U.S. (11 Pet.) at 139,9 L.Ed. 648 (emphasis in original).
Read in context, the phrase referred to by the plaintiffs was
not meant to be a limitation on the authority of the states,
but merely stated the obvious position that, whenever required
by the federal government or absent any regulation whatsoever,
an individual has the right to keep and bear arms. Under
certain circumstances, that right may be limited by the states
through the valid exercise of what has come to be known as the
"police power," without fear that any United States
Constitutional provisions will be infringed. As was discussed
at length above in this court's review of the Illinois
Constitution, the Morton Grove ordinance is a valid exercise of
the police power. Presser requires no more than that.
Plaintiffs' second argument, that Presser has been overruled
sub silentio by later decisions of the Supreme Court is equally
unavailing. In their memorandum on this position, plaintiffs
rely substantially on Justice Black's dissenting opinion in
Adamson v. California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed.
1903 (1947) (Black, J., dissenting). Although three other
Justices concurred with Justice Black that the Bill of Rights,
in its entirety, should be incorporated into the protections
offered by the Fourteenth Amendment, that position has never
been accepted by a majority of the Supreme Court. See L. Tribe,
American Constitutional Law § 11-2 (1978). That situation is
underscored by the fact that some provisions of the Bill of
Rights, in addition to the Second Amendment, have never been
held to apply to the states. See Watson v. Jago, 558 F.2d 330
(6th Cir. 1977) (Fifth Amendment right to indictment by a grand
jury); Iacaponi v. New Amsterdam Casualty Co., 258 F. Supp. 880
(W.D.Pa. 1966), aff'd, 379 F.2d 311 (3d Cir. 1967), cert.
denied, 389 U.S. 1054, 88 S.Ct. 802, 19 L.Ed.2d 849 (1968)
(Seventh Amendment right to a jury trial in civil cases).
The language in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489,
12 L.Ed.2d 653 (1964), quoted by the plaintiffs, is not to the
contrary. In that case, the Supreme Court rejected "the notion
that the Fourteenth Amendment applies to the States only a
`watered-down, subjective version of the individual guarantees
of the Bill of Rights'." 378 U.S. at 10-11, 84 S.Ct. at
1494-1495, (quoting from Ohio ex rel. Eaton v. Price,
364 U.S. 263, 275, 80 S.Ct. 1463, 1469, 4 L.Ed.2d 1708 (1960) (Brennan,
J., dissenting)). That statement was not intended by the Court
to be a wholesale incorporation of the Bill of Rights into the
Fourteenth Amendment, but rather to give content to a
particular right that had already been incorporated. Justice
Harlan's dissent in Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752,
6 L.Ed.2d 989 (1961) (Harlan, J., dissenting), also fails to
provide any support to plaintiffs here. While Justice Harlan
did recognize that the right to keep and bear arms was
protected by the Bill of Rights, he was careful to note that
the Supreme Court has consistently resisted the notion that the
Fourteenth Amendment was merely a shorthand reference to what
was set out in the Bill of Rights. Id. at 541, 81 S.Ct. at
Presser directly bears on the issue of whether the states or
their political subdivisions are limited by the Second
Amendment, and it is still good law, notwithstanding
plaintiffs' arguments to the contrary. Presser controls this
court and, therefore, requires it to hold that the Second
Amendment does not apply to the states and localities and so is
not infringed by the Morton Grove ordinance. Numerous state and
lower federal courts who have considered the issue agree with
this conclusion. See Cases v. United States, 131 F.2d 916 (1st
Cir. 1942), cert. denied, 319 U.S. 770, 63 S.Ct. 1431, 87 L.Ed.
1718 (1943); Eckert v. City of Philadelphia, 329 F. Supp. 845
aff'd, 477 F.2d 610 (3d Cir.), cert. denied, 414 U.S. 843, 94
S.Ct. 104, 38 L.Ed.2d 81 (1973); In re Atkinson, 291 N.W.2d 396
(Minn. 1980); State v. Amos, 343 So.2d 166 (La. 1977);
Commonwealth v. Davis, 369 Mass. 886, 343 N.E.2d 847 (1976);
State v. Sanne, 116 N.H. 583, 364 A.2d 630 (1976); Harris v.
State, 83 Nev. 404, 432 P.2d 929 (1967); State v. Swanton,
129 Ariz. 131, 629 P.2d 98 (Ct.App. 1981).
B. Ninth Amendment
The Ninth Amendment to the United States Constitution
The enumeration in the Constitution of certain
rights, shall not be construed to deny or
disparage others retained by the people.
Plaintiffs' arguments under this provision center on a claimed
right to self defense. They suggest that the right to bear arms
for the purpose of self defense was recognized by several
famous natural law philosophers, among them Aristotle, Cicero,
and John Locke. Cicero, for instance, noted, "if our lives are
endangered by plots or violence or armed robbers or enemies,
any and every method of protecting ourselves is morally right."
Cicero, In Defense of Titus Annius Milo, Selected Political
Speeches 222 (M. Grant trans. 1969). In addition, plaintiffs
point to several early court decisions under the English common
law, which recognized the right of individuals to keep and use
weapons for personal defense and defense of the home.
Although plaintiffs' arguments have an understandable facial
appeal, the court is unable to accept the argument that this
claimed right is protected by the Ninth Amendment.
Neither plaintiffs, the defendant, nor this court has
discovered a single instance in which the Supreme Court has
explicitly held that a particular right was protected by the
Ninth Amendment. In the situations where the Court has given
protection to individual rights not explicitly listed in the
first ten amendments, it has relied on "penumbras, formed by
emanations from those guarantees that help give them life and
substance." Griswold v. Connecticut, 381 U.S. 479, 484, 85
S.Ct. 1678, 1681, 14 L.Ed.2d 510 (1965). The only rights so
recognized by the Court have involved the truly personal and
private rights relating to questions of family and procreation.
See Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct.
1932, 52 L.Ed.2d 531 (1977); Roe v. Wade, 410 U.S. 113, 93
S.Ct. 705, 35 L.Ed.2d 147 (1973); Griswold, supra. Never has
the Court recognized anything like a right to self defense, or
a right to carry handguns, based either on the penumbra theory
or directly under the Ninth Amendment.
The only explicit discussion in any Supreme Court opinion of
the Ninth Amendment and its reach appears in the concurrence by
Justice Goldberg in Griswold, 381 U.S. at 486-99, 85 S.Ct. at
1682-90. Justice Goldberg argued that there were certain
fundamental rights, arising from the "traditions and
[collective] conscience of our people," id. at 493, 85 S.Ct. at
1686 (quoting Snyder v. Massachusetts, 291 U.S. 97, 105, 54
S.Ct. 330, 332, 78 L.Ed. 674 (1934)), which required the
protection of the Ninth Amendment. Whatever the appeal of such
an analysis, Justice Goldberg's thesis has never been accepted
by a majority of the Supreme Court. The Ninth Amendment
furnishes no support for the plaintiffs' fundamental right
argument. The Morton Grove ordinance does not violate its
C. Fifth Amendment
Plaintiffs Quilici and Stengl both alleged in their
complaints that the Morton Grove ordinance infringed the Fifth
Amendment, which prohibits the taking of private property for
public use, "without just compensation." Plaintiffs appear to
have abandoned that argument, by failing to discuss it in their
memoranda of law filed with this court. Nonetheless, for the
sake of completeness, the court will address it briefly.
It is well established that a Fifth Amendment taking can
occur through the exercise of the police power regulating
property rights. In order for a regulatory taking to require
the exercise of the police power must result in the destruction
of the use and enjoyment of a legitimate private property
right. Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct.
383, 62 L.Ed.2d 332 (1979); Devines v. Maier, 665 F.2d 138, No.
80-2315 (7th Cir. November 23, 1981). The Morton Grove
ordinance does not go that far. The geographic reach of the
ordinance is limited; gun owners who wish to may sell or
otherwise dispose of their handguns outside of Morton Grove.
See Fesjian v. Jefferson, 399 A.2d 861 (D.C.App. 1979). If
handgun owners do not wish to sell their weapons, they may
simply register and store them at a licensed gun club. Finally,
the ordinance has an exception for licensed collectors, for
whom neither of those two alternatives may be acceptable.
In his memorandum, plaintiff Quilici implies that the
ordinance is unconstitutionally vague. He suggests specifically
that the ordinance's definition of "handgun" as "a firearm of
a size which may be concealed upon the person" might apply to
shotguns and rifles in an unpredictable manner.
The conditions under which vagueness challenges to a statute
may be considered have been clearly set out by the Supreme
Court. "It is well-established that vagueness challenges to
statutes which do not involve First Amendment freedoms must be
examined in the light of the facts of the case at hand."
United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 714,
42 L.Ed.2d 706 (1975). See United States v. McCauley,
601 F.2d 336 (8th Cir. 1979); United States v. Howard, 569 F.2d 1331
(5th Cir.), cert. denied, 439 U.S. 834, 99 S.Ct. 116, 58
L.Ed.2d 130 (1978). Plaintiff has failed to present an issue of
the meaning of the statute as it applies to any weapon
possessed by him. Rather, plaintiff, in his complaint, alleges
that he owns handguns which are subject to the strictures of
the ordinance. It is obvious that the ordinance gives Mr.
Quilici "adequate warning" that his conduct would be illegal.
United States v. Powell, 423 U.S. 87, 93, 96 S.Ct. 316, 320, 46
L.Ed.2d 228 (1975).
Perhaps the clearest fact that emerges from this litigation
is that the issue of gun control, in whatever form, is
controversial. Reasonable people can, in good conscience,
oppose what Morton Grove has done, while equally reasonable
people can fully support this ordinance. Perhaps nowhere else
is that situation more clearly demonstrated than in the lengthy
and well thought out briefs filed by the opposing parties in
After full consideration, the court has concluded that the
Morton Grove ordinance was properly enacted pursuant to the
police power, and that it does not infringe upon the rights
guaranteed by the United States Constitution. Although those
legal questions decided by this court will reach finality at
some point in time, the debate over the wisdom of this
legislation will continue. Article 1, section 22 of the
Illinois Constitution was drafted and presented to the voters
of Illinois as a reflection of the conflicting views of the
delegates. The voters of Illinois then approved the new
Constitution with the express provision that the right to bear
arms would be subject to the police power. The Trustees of
Morton Grove, also acting in an atmosphere of public debate and
conflict, have made a legislative decision that the danger
posed by the easy availability of handguns is serious enough to
warrant the banning of all handguns within this particular
community. Before taking this action, the Morton Grove Trustees
must have been aware of the deep-seated conviction of a number
of its citizens that they should be permitted to retain
handguns for the protection of person and property. The
Trustees concluded, however, that the public interest
outweighed the claimed personal interests of the opponents of
this legislation. The ultimate settlement of this troublesome
political question must be returned to the citizens of Morton
Grove where it properly belongs rather than in the courts.
For all the reasons stated above, the court finds that the
Morton Grove ordinance is valid. It does not infringe any of
the provisions of either the Illinois State Constitution or the
United States Constitution. Therefore, defendant's motion for
summary judgment is granted, and plaintiffs' motions are
denied. The stay precluding enforcement of the ordinance is
ORDINANCE NO. 81 — 11 AN ORDINANCE REGULATING THE
POSSESSION OF FIREARMS AND OTHER DANGEROUS WEAPONS
WHEREAS, it has been determined that in order to promote and
protect the health and safety and welfare of the public it is
necessary to regulate the possession of firearms and other
dangerous weapons, and
WHEREAS, the Corporate Authorities of the Village of Morton
Grove have found and determined that the easy and convenient
availability of certain types of firearms and weapons have
increased the potentiality of firearm related deaths and
WHEREAS, handguns play a major role in the commission of
homicide, aggravated assault, and armed robbery, and accidental
injury and death.
NOW, THEREFORE, BE IT ORDAINED BY THE PRESIDENT AND BOARD OF
TRUSTEES OF THE VILLAGE OF MORTON GROVE, COOK COUNTY, ILLINOIS,
SECTION 1: The Corporate Authorities do hereby incorporate
the foregoing WHEREAS clauses into this Ordinance, thereby
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
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;
(1) Any pneumatic gun, spring gun or B-B gun which expels a
single globular projectile not exceeding .18 inches in
(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 ammunition.
(4) An antique firearm (other than a machine gun) which,
although designed as a weapon, the Department of Law
Enforcement of the State of Illinois finds by reason of the
date of its manufacture, value, design and other
characteristics is primarily a collector's item and is not
likely to be used as a weapon.
(5) Model rockets designed to propel a model vehicle in a
Handgun: Any firearm which (a) is designed or redesigned or
made or remade, and intended to be fired while held in one hand
or (b) having a barrel of less than 10 inches in length or (c)
a firearm of a size which may be concealed upon the person.
Person: Any individual, corporation, company, association,
firm, partnership, club, society or joint stock company.
Handgun Dealer: Any person engaged in the business of (a)
selling or renting handguns at wholesale or retail (b)
manufacture of handguns (c) repairing handguns or making or
fitting 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
Licensed Gun Club: A club or organization, organized for the
purpose of practicing shooting at targets, licensed by the
Village of Morton Grove under Section 90.20 of the Code of
Ordinances of the Village of Morton Grove.
No person shall possess, in the Village of Morton Grove the
(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 applied to a button, spring, or other device
in the handle of the knife; or
(2) Any weapon from which 8 or more shots or bullets may be
discharged by a single function of the firing device, any
shotgun having one or more barrels less than 18 inches in
length, sometimes called a sawed off shotgun or any weapon made
from a shotgun, whether by alteration, modification or
otherwise, if such weapon, as modified or altered has an
overall length of less than 26 inches, or a barrel length of
less than 18 inches or any bomb, bomb-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
(3) Any handgun, unless the same has been rendered
(C) Subsection B(1) shall not apply to or affect any peace
(D) Subsection B(2) shall not apply to or affect the
(1) Peace officers;
(2) Wardens, superintendents and keepers of prisons,
penitentiaries, jails and other institutions for the detention
of persons accused or convicted of an offense;
(3) Members of the Armed Services or Reserve Forces of the
United States or the Illinois National Guard, while in the
performance of their official duties; and
(4) Transportation of machine guns to those persons
authorized under Subparagraphs (1) and (2) of this subsection
to possess machine guns, if the machine guns are broken down in
a non-functioning state or not immediately accessible.
(E) Subsection B(3) does not apply to or affect the
(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 keeper 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 performance of their
(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 operation for the protection of
persons employed and private property related to such
commercial or industrial operation;
(5) Agents and investigators of the Illinois Legislative
Investigating Commission authorized by the commission to carry
(6) Licensed gun collectors;
(7) Licensed gun clubs provided the gun club has premises
from which it operates and maintains possession and control of
handguns used by its members, and has procedures and facilities
for keeping such handguns in a safe place, under the control of
the club's chief officer, at all times when they are not being
used for target shooting or other sporting or recreational
purposes at the premises of the gun club; and gun club members
while such members are using their handguns at the gun club
(8) A possession of an antique firearm;
(9) Transportation of handguns to those persons authorized
under Subparagraph 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 transportation 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 competitive target shooting or for the
purpose of permanently keeping said handgun at such new gun
club; and provided further that at all times during such
transportation said handgun shall have trigger locks securely
fastened to the handgun.
(1) Any person violating Section B(1) or B(2) of this
Ordinance shall be guilty of a misdemeanor and shall be fined
not less than $100.00 nor more than $500.00 or incarcerated for
up to six months for each such offense.
(2) Any person violating Section B(3) of this Ordinance shall
be guilty of a petty offense and shall be fined no less than
$50.00 nor more than $500.00 for such offense. Any person
violating Section B(3) of this Ordinance more than one time
shall be guilty of a misdemeanor and shall be fined no less
than $100.00 nor more than $500.00 or incarcerated for up to
six months for each such offense.
(3) Upon conviction of a violation of Section B(1) through
B(3) of this Ordinance, any weapon seized shall be confiscated
by the trial court and when no longer needed for evidentiary
purposes, the court may transfer such weapon to the Morton
Grove Police Dept. who shall destroy them.
(G) Voluntary Delivery to Police Department
(1) If a person voluntarily and peaceably delivers and
abandons to the Morton Grove Police Dept. any weapon mentioned
in Sections B(1) through B(3), such delivery shall preclude the
arrest and prosecution of such person on a charge of violating
any provision of this Ordinance with respect to the weapon
voluntarily delivered. Delivery under this section may be made
at the headquarters of the police department or by summoning a
police officer to the persons residence or place of business.
Every weapon to be delivered and abandoned to the police
department under this paragraph shall be unloaded and securely
wrapped in a package and in the case of delivery to the police
headquarters, the package shall be carried in open view. No
person who delivers and abandons a weapon under this section
shall be required to furnish identification, photographs or
fingerprints. No amount of money shall be paid for any weapon
delivered or abandoned under this paragraph.
(2) Whenever any weapon is surrendered under this section,
the police department shall inquire of all law enforcement
agencies whether such weapon is needed as evidence and if the
same is not needed as evidence, it shall be destroyed.
(H) All weapons ordered confiscated by the court under the
provisions of Section F(3) and all weapons received by the
Morton Grove Police Department under and by virtue of Section
G shall be held and identified as to owner, where possible, by
the Morton Grove Police Department for a period of five years
prior to their being destroyed.
Nothing in this Ordinance shall be construed or applied to
necessarily require or excuse non compliance with any provision
of the laws of the State of Illinois or to the laws of the
United States. This Ordinance and the penalties proscribed for
violation hereof, shall not supersede, but shall supplement all
statutes of the State of Illinois or of the United States in
which similar conduct may be prohibited or regulated.
If any provisions of this Ordinance or the application
thereof to any person or circumstance is held invalid, the
remainder of this Ordinance and the applicability of such
provision to other persons not similiarly situated or to other
circumstances shall not be affected thereby.
(K) The provisions of this Ordinance shall take effect ninety
(90) days from and after its passage, approval and
publication in pamphlet form according to law."
SECTION 3: That this Ordinance shall be published in pamphlet
form. Said pamphlet shall be received as evidence of the
passage and legal publication of this Ordinance.
PASSED this __________ day of __________, 1981.
Trustee Cashman __________
Trustee Dechert __________
Trustee Hohs __________
Trustee Greenberg __________
Trustee Sneider __________
Trustee Youstra __________
APPROVED by me this __________ day of __________, 1981.
President of the VILLAGE OF MORTON GROVE,
Cook County, Illinois.
ATTESTED and FILED in my office this
__________ day of __________, 1981,
and published in pamphlet form this
__________ day of __________, 1981.
Clerk of the VILLAGE OF MORTON GROVE,
Cook County, Illinois
Published in pamphlet form this __________ day of
__________, 1981, by order of the President and Board of
Trustees of the VILLAGE OF MORTON GROVE, Cook County,