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, Judge.
Bauer, Wood, and Coffey, Circuit Judges. Coffey, Circuit Judge, dissenting.
This appeal concerns the constitutionality of the Village of Morton Grove's Ordinance No. 81-11,*fn1 which prohibits the possession of handguns within the Village's borders. The district court held that the Ordinance was constitutional. We affirm.
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 violated article I, section 22 of the Illinois Constitution and the second, ninth and fourteenth amendments of the United States Constitution. They sought an order declaring the Ordinance unconstitutional and permanently enjoining its enforcement. The parties filed cross motions for summary judgment. The district court granted Morton Grove's motion for summary judgment and denied plaintiffs' motions for summary judgment.
In its opinion, Quilici v. Village of Morton Grove, 532 F. Supp. 1169 (N.D. Ill. 1981), the district court set forth several reasons for upholding the handgun ban's validity under the state and federal constitutions. First, it held that the Ordinance which banned only certain kinds of arms was a valid exercise of Morton Grove's police power and did not conflict with section 22's conditional right to keep and bear arms. Second, relying on Presser v. Illinois, 116 U.S. 252, 29 L. Ed. 615, 6 S. Ct. 580 (1886), the court concluded that the second amendment's guarantee of the right to bear arms has not been incorporated into the fourteenth amendment and, therefore, is inapplicable to Morton Grove. Finally, it stated that the ninth amendment does not include the right to possess handguns for self-defense. Appellants contend that the district court incorrectly construed the relevant constitutional provisions, assigning numerous errors based on case law, historical analysis, common law traditions and public policy concerns.*fn2
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 constitutional decisions. Richard Nixon v. A. Ernest Fitzgerald, 457 U.S. 731, 102 S. Ct. 2690, 73 L. Ed. 2d 349 (1982). With these principles in mind we address appellants' contentions.
We consider the state constitutional issue first. The Illinois Constitution provides:
Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed.
Ill. Const. art. I, § 22. The parties agree that the meaning of this section is controlled by the terms "arms" and "police power" but disagree as to the scope of these terms.
Relying on the statutory construction principles that 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 arms prohibits a complete ban of any one kind of arm. They argue that the constitutional history of section 22 establishes that the term "arms" includes those weapons commonly employed for "recreation or the protection of person and property," 6 Record of Proceedings, Sixth Illinois Constitutional Convention 87 (Proceedings), and contend that handguns have consistently been used for these purposes.
Appellants concede that the phrase "subject to the police power" does not prohibit reasonable regulation of arms. Thus, they admit that laws which require the licensing of guns or which restrict the carrying of concealed weapons or the 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 neighboring municipality completely bans all arms but handguns.
In contrast, Morton Grove alleges that "arms" is a general term which does not include any specific kind of weapon. Relying on section 22's language, which they characterize as clear and explicit, Morton Grove reads section 22 to guarantee the right to keep only some, but not all, arms which are used for "recreation or the protection of person and property." It argues that the Ordinance passes constitutional muster because 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 constitutional debates for guidance on the proper construction of arms.*fn3 Client Follow-Up Co. v. Hynes, 75 Ill. 2d 208, 216, 390 N.E.2d 847, 850, 28 Ill. Dec. 488 (1979), citing Wolfson v. Avery, 6 Ill.2d 78, 126 N.E.2d 701 (1955).*fn4
The debates indicate that the category of arms protected by section 22 is not limited to military weapons; the framers also intended to include those arms that "law-abiding persons commonly employ[ed]" for "recreation or the protection of person and property." 6 Proceedings 87. Handguns are undisputedly the type of arms commonly used for "recreation or the protection of person and property."
Our conclusion that the framers intended to include handguns in the class of protected arms is supported by the fact that in discussing the term the Proceedings refer to People v. Brown, 253 Mich. 537, 541-42, 235 N.W. 245, 246-47 (1931) and State v. Duke, 42 Tex. 455, 458 (1875). Brown defines weapons as those "relied upon . . . for defense or pleasure," including "ordinary guns" and "revolvers." 253 Mich. at 542, 235 N.W. at 247. Duke states that "the arms which every person is secured the right to keep and bear (in defense of himself or the State, subject to legislative regulation), must be such arms as are commonly kept, . . . and are appropriate for . . . self-defense, as well as such as are proper for the defense of the State." 42 Tex. at 458. The delegates' statements and reliance on Brown and Duke convinces us that the term arms in section 22 includes handguns.
Having determined that section 22 includes handguns within the class of arms protected, we must now determine the extent to which a municipality may exercise its police power to restrict, or even prohibit, the right to keep and bear these arms. The district court concluded that section 22 recognizes only a narrow individual right which is subject to substantial legislative control. It noted that "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." Quilici v. Village of Morton Grove, 532 F. Supp. at 1174. It further noted that while the Proceedings cite some cases holding that the state's police power should be read restrictively, those cases were decided under "distinctly different constitutional provisions" and, thus, have little application to this case. Id. 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 exercise their police power to restrict, or prohibit, the right to keep and bear handguns. For example, Delegate Foster, speaking for the majority, explained:
It could be argued that, in theory, the legislature now [prior to the adoption of the 1970 Illinois 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 all guns, but there could be a ban on certain categories." Id. at 1693.*fn5 It is difficult to imagine clearer evidence that section 22 was intended to permit a municipality to ban handguns if it so desired.
Appellants argue that construing section 22 to protect only some unspecified categories of arms, thereby allowing 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 pertaining to its government and affairs". Illinois Const. art. VIII, § 6(a). Home rule government*fn6 is based on the theory that local governments are in the best position to assess the needs and desires of the community and, thus, can most wisely enact legislation addressing local concerns. Carlson v. Briceland, 61 Ill. App. 3d 247, 377 N.E.2d 1138, 18 Ill. Dec. 502 (1978). Illinois home rule units have expansive powers to govern as they deem proper, see generally Hall & Wallack, Intergovernmental Cooperation and the Transfer of Powers, 1981 U. Ill. L. Rev. 775, 777-79; Vitullo & Peters, Intergovermental Cooperation and the Municipal Insurance Crisis, 30 DePaul L. Rev. 325, 326-29 (1981); including the authority to impose greater restrictions on particular rights than those imposed by the state. See City of Evanston v. Create, Inc., 85 Ill. 2d 101, 421 N.E.2d 196, 51 Ill. Dec. 688 (1981). The only limits on their autonomy are those imposed by the Illinois Constitution, City of Carbondale ex rel. Ham v. Eckert, 76 Ill. App. 3d 881, 395 N.E.2d 607, 32 Ill. Dec. 377 (1979), or by the Illinois General Assembly exercising its authority to pre-empt home rule in specific instances. Because we have concluded that the Illinois Constitution permits a ban on certain categories of arms, home rule units such as Morton Grove may properly enact different, even inconsistent, arms restrictions. This is precisely the kind of local control envisioned by the new Illinois Constitution.
Appellants concede that municipalities may, under the Illinois Constitution, exercise their police power to enact regulations which prohibit "possession of items legislatively found to be dangerous . . .", Quilici br. at 9. They draw a distinction, however, between the exercise of the police power in general and the exercise of 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, People v. Warren, 11 Ill. 2d 420, 143 N.E.2d 28 (1957), but we reiterate that section 22 simply prohibits an absolute ban on all firearms. Since Ordinance No. 81-11 does not prohibit all firearms, it does not prohibit a constitutionally protected right. There is no right under the Illinois Constitution to possess a handgun, nor does the state have an overriding state interest in gun control which requires it to retain exclusive control in order to prevent home rule units from adopting conflicting enactments. See City of Evanston v. Create, Inc., 85 Ill.2d 101, 421 N.E.2d 196, 51 Ill. Dec. 688 (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 Ill.2d 420, 143 N.E.2d 28 (1957).
The Illinois Constitution establishes a presumption in favor of municipal home rule. Carlson v. Briceland, 61 Ill. App. 3d 247, 377 N.E.2d 1138, 18 Ill. Dec. 502 (1978). Once a local government identifies a problem and enacts legislation to mitigate or eliminate it, that enactment is presumed valid and may be overturned only if it is unreasonable, clearly arbitrary, and has no foundation in the police power. Illinois Gamefowl Breeders Ass'n v. Block, 75 Ill.2d 443, 389 N.E.2d 529, 27 Ill. Dec. 465 (1979); People v. Copeland, 92 Ill. App. 3d 475, 415 N.E.2d 1173, 47 Ill. Dec. 860 (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, 46 Ill. Dec. 678 (1980). As the district court noted, there is at least some empirical evidence that gun control legislation may reduce the number of deaths and accidents caused by handguns. Quilici v. Village of Morton Grove, 532 F. Supp. at 1179. This evidence is sufficient to sustain the conclusion that Ordinance No. 81-11 is neither wholly arbitrary nor completely unsupported by any set of facts. People v. Copeland, 92 Ill. App. 3d 475, 415 N.E.2d 1173, 47 Ill. Dec. 860 (1st Dist. 1980). Accordingly, we decline to consider plaintiffs' arguments that Ordinance No. 81-11 will not make Morton Grove a safer, more peaceful place.
We agree with the district court that Ordinance No. 81-11: (1) is properly directed at protecting the safety and health of Morton Grove citizens; (2) is a valid exercise of Morton Grove's police power; and (3) does not violate any of appellants' rights guaranteed by the Illinois Constitution.*fn7
We next consider whether Ordinance No. 81-11 violates the second amendment to the United States Constitution. While appellants all contend that Ordinance No. 81-11 is invalid under the second amendment, they offer slightly different arguments to substantiate this contention. All argue, however, that the second amendment applies to state and local governments and that the second amendment guarantee of the right to keep and bear arms exists, not only to assist in the common defense, but also to protect the individual. While reluctantly conceding that Presser v. Illinois, 116 U.S. 252, 29 L. Ed. 615, 6 S. Ct. 580 (1886), held that the second amendment applied only to action by the federal government, they nevertheless assert that Presser also held that the right to keep and bear arms is an attribute of national citizenship which is not subject to state restriction. Reichert br. at 36. Finally, apparently responding to the district court's comments that "plaintiffs . . . have not suggested that the Morton Grove Ordinance in any way interferes with the ability of the United States to maintain public security . . ." Quilici v. Village of Morton Grove, 532 F. Supp. at 1169, Quilici and Reichert argue in this court that the Morton Grove Ordinance interferes with the federal government's ability to maintain public security by preventing individuals from defending themselves and the community from "external or internal armed threats." Quilici br. at 12; Reichert br. at 37-38. These are the same arguments made in the district court. Accordingly, we comment only briefly on the points already fully analyzed in that court's decision.
As we have noted, the parties agree that Presser is controlling, but disagree as to what Presser held. It is difficult to understand how appellants can assert that Presser supports the theory that the second amendment right to keep and bear arms is a fundamental right which the state cannot regulate when the Presser decision plainly states that "the Second Amendment declares that it shall not be infringed, but this . . . means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the National government. . . ." Presser v. Illinois, 116 U.S. 252, 265, 29 L. Ed. 615, 6 S. Ct. 580 (1886). As the district court explained in detail, appellants' claim that Presser supports the proposition that the second amendment guarantee of the right to keep and bear arms is not subject to state restriction is based on dicta quoted out of context. Quilici v. Village of Morton Grove, 532 F. Supp. at 1181-82. This argument borders on the frivolous and does not warrant any further consideration.
Apparently recognizing the inherent weakness of their reliance on Presser, appellants urge three additional arguments to buttress their claim that the second amendment applies to the states. They contend that: (1) Presser is no longer good law because later Supreme Court cases incorporating other amendments into the fourteenth 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 implicitly incorporated into the fourteenth amendment to apply to the states, Reichert br. at 48-52.
None of these arguments has merit. First, appellants offer no authority, other than their own opinions, to support their arguments that Presser is no longer good law or would have been decided differently today. Indeed, the fact that the Supreme Court continues to cite Presser, Malloy v. Hogan, 378 U.S. 1, 4 n.8, 12 L. Ed. 2d 653, 84 S. Ct. 1489 (1964), leads to the opposite conclusion. Second, regardless of whether appellants agree with the Presser analysis, it is the law of the land and we are bound by it. Their assertion that Presser is illogical is a policy matter for the Supreme Court to address. Finally, their theory of implicit incorporation is wholly 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, 91 L. Ed. 1903, 67 S. Ct. 1672 (1947), overruled ...