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Kalodimos v. Village of Morton Grove

OPINION FILED FEBRUARY 9, 1983.

MICHAEL KALODIMOS ET AL., PLAINTIFFS-APPELLANTS,

v.

THE VILLAGE OF MORTON GROVE, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Albert Green, Judge, presiding.

PRESIDING JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 20, 1983.

Plaintiffs, Michael Kalodimos, George L. Reichert, Robert E. Metler, and Richard A. Schnell, filed this suit for declaratory and injunctive relief challenging the constitutionality of defendant village of Morton Grove's Ordinance 81-11, "An Ordinance Regulating the Possession of Firearms & Other Dangerous Weapons." Plaintiffs appeal from the trial court's decision granting defendant's cross motion for summary judgment in which the validity of the ordinance was upheld, and denying plaintiffs' motion for summary judgment.

The ordinance in question provides that "[n]o person shall possess, in the Village of Morton Grove * * * [a]ny handgun, unless the same has been rendered permanently inoperative." The ordinance specifies various exceptions for certain categories of persons such as peace officers, prison officials, members of the armed forces and national guard and, under certain conditions, licensed gun collectors. Plaintiffs, residents of Morton Grove who own and possess operative handguns and who all within none of the exceptions, charge that the ordinance is invalid because it infringes upon the right of the individual citizen to keep and bear arms as guaranteed by article I, section 22, of the 1970 Illinois Constitution.

Section 22 provides that, "[s]ubject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed." (Ill. Const. 1970, art. I, sec. 22.) In construing section 22 the trial court relied primarily upon the plain meaning of its language, the majority report submitted to the delegates by the committee which proposed the section to the constitutional convention, and on the official explanation which accompanied the proposed constitutional provision on its submission to Illinois voters. The trial court found the handgun to be an arm within the meaning of section 22. Noting that individuals were free to possess other types of arms; however, the trial court found the Morton Grove ordinance to be a reasonable exercise of the village's police power.

On appeal, plaintiffs contend that the plain meaning of section 22, as understood by both the drafters and the voters, establishes that it guarantees the right to keep a handgun. That right, plaintiffs argue, is subject to reasonable regulation, not prohibition, pursuant to the police power. They therefore urge that we find the ordinance in question to be unreasonable and improper exercise of police power in that it operates to nullify a constitutional guarantee.

Both sides agree that handguns are included within the class of arms protected by section 22. Their point of contention is whether a ban on handguns alone is a proper exercise of local police power where citizens are free to possess other types of protected arms.

Plaintiffs correctly assert that the true inquiry in interpreting a constitutional provision concerns the common understanding of that provision by the voters who, by their vote, gave life to the provision. (People ex rel. Cosentino v. County of Adams (1980), 82 Ill.2d 565, 413 N.E.2d 870.) We find, however, that in the present case, examination of the most reliable determinants of that common understanding leaves unresolved the issue with which we are concerned.

The official explanation merely asserts 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." (7 Record of Proceedings, Sixth Illinois Constitutional Convention 2689 (Proceedings).) This explanation provides no more guidance than does the plain language of section 22 in helping to determine whether such regulation may include a prohibition against one category of protected arms.

Similarly, plaintiffs' reliance on the majority report of the Bill of Rights Committee is misplaced. Plaintiffs argue that the report, which was presented by the majority of the committee who proposed section 22 to the delegates prior to their debates, indicates that both the members of the committee and the other delegates understood section 22 to preclude a ban on the possession of handguns. The portion of the report on which plaintiffs rely provides:

"[T]he proposed new provision * * * seeks to assure that the `arms' involved are not limited by the armaments or needs of the state militia or other military body. The substance of the right 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 87.)

While the language clearly indicates that handguns are within the type of arms protected by section 22, it does not clearly preclude a ban on handguns absent a ban on other protected arms. Indeed, the report also notes the "extraordinary threat to the safety and good order of society" posed by the possession of arms and recites that in response to that threat section 22 would provide for an "extraordinary degree of control" over the possession of arms pursuant to the police power. 6 Proceedings 88.

Since the meaning accorded section 22 is otherwise doubtful with regard to the extent of control permissible under the police power, it is appropriate to consult the debates of the delegates to the constitutional convention to ascertain the intent of the drafters. (Drury v. County of McLean (1982), 89 Ill.2d 417, 433 N.E.2d 666.) This approach was recently used by the Federal court in Quilici v. Village of Morton Grove (7th Cir. 1982), 695 F.2d 261, where it upheld the constitutionality of the same ordinance in question here. Finding the language of section 22 to be unclear, the court based its interpretation of the section on the constitutional debates. It concluded that section 22 grants only the right to possess arms, not handguns. While finding that the framers intended handguns to be within the class of protected arms, it also found the framers to have envisioned that a permissible exercise of police power might include a prohibition on handguns. We believe that this interpretation of section 22 is amply supported by the debates, and we adopt the reasoning expressed by the seventh circuit.

We reject plaintiffs' contention that the debates regarding the present issue are confusing, contradictory and inherently unreliable. Conversely, we find that they demonstrated a consensus among the delegates with regard to the scope of protection accorded handguns pursuant to section ...


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