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Kalodimos v. Village of Morton Grove

OPINION FILED OCTOBER 19, 1984.

MICHAEL KALODIMOS ET AL., APPELLANTS,

v.

THE VILLAGE OF MORTON GROVE, APPELLEE.



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Albert Green, Judge, presiding.

JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:

An ordinance of the village of Morton Grove banning the possession of all operable handguns, apparently the first of its kind in the nation, withstood a challenge under the second and ninth amendments to the United States Constitution. (Quilici v. Village of Morton Grove (7th Cir. 1982), 695 F.2d 261, cert. denied (1983), 464 U.S. 863, 78 L.Ed.2d 170, 104 S.Ct. 194.) In that decision the Federal court also concluded that the ordinance was permissible under the Illinois Constitution. (695 F.2d 261, 265-69.) This appeal calls upon this court to determine the meaning of our State constitution by defining the scope of the relevant State constitutional provision, deciding whether the ordinance passes muster under it, and, if so, deciding whether it is permissible under the constitutional home rule power and the police power.

The ordinance (Morton Grove, Ill., Ordinance 81-11 (June 8, 1981)) provides that "[n]o person shall possess, in the Village * * * [a]ny handgun, unless the same has been rendered permanently inoperative." It exempts from its operation peace officers, prison officials, members of the armed forces, reserve units and the Illinois National Guard, security guards duly employed by a commercial or industrial enterprise or a public utility, and members of licensed gun clubs who entrust their handguns to the club for safekeeping when not using them for target shooting or other recreational purposes. Antique firearms are also specifically exempted from the ordinance.

Morton Grove residents filed this action seeking an injunction and a declaratory judgment that the ordinance violates article I, section 22, of the Illinois Constitution and is an unreasonable exercise of the police power. The circuit court of Cook County entered summary judgment in favor of the village, and the appellate court affirmed (113 Ill. App.3d 488). We granted leave to appeal and permitted various parties to file briefs amicus curiae on both sides.

I. THE CONSTITUTIONAL RIGHT TO ARMS

Article I, section 22, added to the Illinois Constitution in 1970, provides:

"Subject 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.)

The section does not mirror the second amendment to the Federal Constitution (U.S. Const., amend. II); rather it adds the words "[s]ubject only to the police power," omits prefatory language concerning the importance of a militia, and substitutes "the individual citizen" for "the people." The majority report of the Bill of Rights Committee of the constitutional convention, which framed the provision, makes clear that the latter two changes were intended to broaden the scope of the right to arms from a collective one applicable only to weapons traditionally used by a regulated militia (see United States v. Miller (1939), 307 U.S. 174, 83 L.Ed. 1206, 59 S.Ct. 816) to an individual right covering a wider variety of arms. Report of the Bill of Rights Committee on the Preamble and Bill of Rights (hereinafter cited as Committee Report), 6 Record of Proceedings, Sixth Illinois Constitutional Convention (hereinafter cited as Proceedings) 87 (1970).

Equally distinctive, however, is the explicit recognition of "the police power" as a limitation on the liberty the provision affords. The Bill of Rights Committee explained in its report that "[b]ecause 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." (Committee Report, 6 Proceedings 88.) The committee report described, with specific citations, five types of regulatory measures that had been approved in other States as not infringing an individual right to arms, including a complete ban on "certain deadly weapons not commonly and peacefully used by individuals, such as machine guns, firearms equipped with silencing devices, gas-ejecting devices, blackjacks, artillery weapons, bombs, etc." (Committee Report, 6 Proceedings 89) and a total prohibition of "the sale of some weapons in some circumstances" (Committee Report, 6 Proceedings 90, citing Biffer v. City of Chicago (1917), 278 Ill. 562, and a Texas case, Caswell & Smith v. State (Tex. Civ. App. 1912), 148 S.W. 1159, which approved a confiscatory tax on all sales of pistols).

Plaintiffs contend that section 22 is ambiguous and that the ambiguity can only be resolved to mean that while the State and its subdivisions have the power to regulate the possession and use of weapons which are commonly used for recreation or protection of person and property, such as by requiring that all purchasers of handguns be licensed (see Biffer v. City of Chicago (1917), 278 Ill. 562), they may not enact a flat ban on such weapons or any discrete category of them. Plaintiffs also argue that the proper focus in interpreting a constitutional provision such as section 22 must be on the common understanding of the citizens of the State who voted to adopt the Constitution.

The meaning of a constitutional provision depends, of course, on the common understanding of the citizens who, by ratifying the Constitution, gave it life. (People ex rel. Cosentino v. County of Adams (1980), 82 Ill.2d 565, 569; Client Follow-Up Co. v. Hynes (1979), 75 Ill.2d 208, 222.) This understanding, however, is best determined by referring to the common meaning of the words used. (Coalition for Political Honesty v. State Board of Elections (1976), 65 Ill.2d 453, 464.) The plain language of the provision clearly leaves the right to bear any type of arms subject to the police power. This belies any assertion that a majority of the voters must have interpreted the plain words of the provision as ruling out any specific regulatory measure. The official explanation which all voters received also left considerable leeway for regulation of guns by stating that under section 22 "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 Proceedings 2689.

The insight offered by these materials is consistent with the interpretation of the provision advanced by the delegates who voted to adopt it. The meaning which the delegates to the convention attached to a provision in the Constitution before sending it to the voters for ratification is relevant in resolving ambiguities which may remain after consulting the language of the provision. (Client Follow-Up Co. v. Hynes (1979), 75 Ill.2d 208, 220; People ex rel. Keenan v. McGuane (1958), 13 Ill.2d 520, 527; see, e.g., Drury v. County of McLean (1982), 89 Ill.2d 417, 422-23.) The reason is that it is only with the consent of the convention that such provisions are submitted to the voters in the first place.

When presented with the report of the Bill of Rights Committee, the delegates to the convention were faced with a choice of adopting the so-called "majority report," which set forth section 22 in substantially the form in which it was enacted; adopting the "minority report," which recommended that the constitution remain silent concerning a right to arms; or adopting the "Lawlor amendment," which read: "The right of the individual to firearms or other means necessary for defense of his person or safeguarding of his property shall not be denied or infringed. The use of deadly weapons for hunting or other sports shall be subject to regulations established by law." (3 Proceedings 1704.) The Lawlor proposal and the minority report were both rejected. The majority report, which was accepted by the convention, was introduced by Delegate Leonard Foster, who stated:

"[I]t was urged on us that the right to keep and bear some form of firearm should be put into the constitution. * * * [W]e added a qualifier that the right to bear arms would be subject only to the police power of the state * * *.

In general, the committee feels that the state has the right * * * to regulate firearms; that is to say, to determine who can have them and under what circumstances * * *. [W]e feel that under this provision, the state would have the right to prohibit some classes of firearms, such as war weapons, handguns, or some other category." (Emphasis added.) 3 Proceedings 1687 (statement of Delegate Foster).

In the debate following the opening statements, Mr. Foster was questioned as follows by Delegate Elmer Gertz:

"MR. GERTZ: * * * [U]nder [the] provision, would it be possible for the city or the state to ban all hand guns, except those in the hands of police officers?

MR. FOSTER: It would be possible to ban all hand guns, including those in the hands of police officers." (Emphasis in original.) (3 Proceedings 1689.)

This response was amplified the following day when, in his introduction of the minority report, Mr. Gertz asserted that "[i]t was admitted yesterday, that the [majority report] would prevent a complete ban of hand guns, for example," and Mr. Foster interjected, "[T]hat is inaccurate. The statement of the majority was that it would prevent a complete ban on all guns, but there could be a ban on certain categories." (3 Proceedings 1693.) In addition, Delegate Matthew Hutmacher, who, along with Delegate Foster, presented the majority report stated that the scope of the police power under the right-to-arms provision was coextensive with "due process" (3 Proceedings 1689 (statement of Delegate Hutmacher)). Shortly before the vote which rejected the minority report, Mr. Foster stated:

"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 hand guns. * * * [I]t is still the position of the majority that, short 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." (Emphasis added.) 3 Proceedings 1718 (statement of Delegate Foster).

During the course of the debates, several delegates who later voted in favor of the majority report voiced an understanding of the report that was similar to Mr. Foster's. For example, one delegate observed that "as everyone has said — * * * hand guns are by far and away the problem in this country and in this state * * *. This [section] does not in any way attempt or intend * * * [to] restrict the state or the county or the city or any other government within our confines of a reasonable * * * control over hand guns. And I submit to you that that would include the prohibition * * *." (Emphasis added.) (3 Proceedings 1717-18 (statement of Delegate Durr).) Another suggested that, far from obstructing State or local legislation aimed at controlling firearms, the majority report gave constitutional sanction to such legislation for the first time. (3 Proceedings 1709-10 (statement of Delegate Elward).) Others stated that, as they understood it, the majority report was a safeguard against the confiscation of all firearms and nothing more. (3 Proceedings 1711 (statement of Delegate Kelleghan), 1712 (statement of Delegate Downen).) Other delegates simply accepted Mr. Foster's understanding of the extent to which the majority report would permit regulation of guns. 3 Proceedings 1711 (statement of Delegate Kelleghan), 1719 (statements of Delegates Daley and Kamin).

Conspicuously absent from the debates is any expression by any delegate who favored the majority report that handguns could not be banned under the majority proposal. The only suggestions of this kind were made by delegates who opposed the majority report, and were offered only to demonstrate the possibility that voters or the courts> might interpret the right bestowed by section 22 too expansively in favor of the right to arms. (See 3 Proceedings 1694 (statement of Delegate Weisberg), 1710 (statement of Delegate Fay), 1714 (statement of Delegate Ladd).) The plaintiffs argue that these statements show that there was no common understanding among the delegates who voted on the section. However, "the court is not justified in relying upon arguments against a proposed constitutional amendment `as seen by the minority,' to determine its meaning after adoption. A precedent so holding would be mischievous in the opportunity it would afford a minority to frustrate the purpose of the [constitutional convention] and the voters." Hanley v. Kusper (1975), 61 Ill.2d 452, 460.

Plaintiffs contend that the natural interpretation of the words "police power," and that which the voters must have had in mind when considering section 22 under which all classes of firearms rather than merely military ones are protected, includes regulation of such firearms but not a prohibition of any class of arms. We see no basis for this argument. This court has long recognized that the police power comprehends laws "restraining or prohibiting anything harmful to the welfare of the people" (People v. Warren (1957), 11 Ill.2d 420, 425; see Acme Specialties Corp. v. Bibb (1958), 13 Ill.2d 516, 518-19, cert. denied (1958), 358 U.S. 840, 3 L.Ed.2d 74, 79 S.Ct. 64 (ban on sale of sparklers upheld as a proper exercise of the police power)), and no convincing evidence has been produced that the voters ascribed a different meaning to the term in the context of section 22.

The plaintiffs refer to newspaper articles and editorials which they argue led voters to believe that no class of weapons would be subject to complete prohibition (e.g., Con-Con Questions, Answers, Illinois State Register, Dec. 10, 1970, at 2, col. 2; Con-Con unit tested — votes conservative, Chicago Daily News, Feb. 27, 1970 (State ed.), at 11, col. 1; Editorial, The sickening rise in gun killings, Chicago Sun-Times, June 11, 1970, at 71, col. 1; Editorial, A document in democracy, Chicago Sun-Times, June 7, 1970, sec. 2, at 11, col. 1; Editorial, Con-con under the gun, Chicago Sun-Times, Mar. 4, 1970, at 35, col. 1; Editorial, Wrong decision on guns, Chicago Daily News, Feb. 27, 1970 (evening ed.), at 14, col. 1; Editorial, Gun play at con con, Chicago Daily News, Feb. 24, 1970 (evening ed.), at 10, col. 1). These articles either expressed the general fear that the provision as debated and passed by the convention would nullify existing gun-control laws and prevent the passage of new ones or reported similar expressions of fear by convention delegates who had opposed the provision.

Consistent with Client Follow-Up Co. v. Hynes (1979), 75 Ill.2d 208, 224-25, we recognize that it may not be improper to ascertain the common understanding of a constitutional provision by reference to news reports. (See Wolfson v. Avery (1955), 6 Ill.2d 78, 89-92.) In this case, however, to support the plaintiffs' position on the basis of the materials offered in evidence would be neither fair nor accurate. With one exception, the relevant articles and editorials cited to us were contained in the Chicago Daily News and the Chicago Sun-Times. These were published in the same city and had several competitors in their home market. No evidence had been introduced as to the interpretation which newspapers in other parts of the State placed on the right-to-arms provision or the debates which produced it, nor are we told of the understanding communicated by the other newspapers or magazines which Chicago area residents who voted might have read. We are not aware of how many voters read the publications cited, how many of those read the particular articles in question, or how and to what extent those who did read the articles were influenced by them. By contrast, the text of the right-to-arms provision and the official explanation were made available to everyone who voted. Their import was that regulation consistent with the public welfare would be permitted; they did not suggest that such regulation would not include bans on discrete categories of weapons. For these reasons, we conclude that in this case, because of their inconclusive character, the newspaper articles on which the plaintiffs rely should not change our decision.

Based on the floor debates and the official explanation, as well as on the language of the provision, it is apparent to us that section 22, as submitted to the voters, meant that a ban on all firearms that an individual citizen might use would not be permissible, but a ban on discrete categories of firearms, such as handguns, would be. Convincing indications that the voters ascribed a different meaning to the provision not having been offered by the plaintiffs, we conclude, along with the Federal courts> (Quilici v. Village of Morton Grove (7th Cir. 1982), 695 F.2d 261, cert. denied (1983), 464 U.S. 863, 78 L.Ed.2d 170, 104 S.Ct. 194), that a reasonable prohibition of handguns is constitutional in this State.

Plaintiffs point out that handguns are a form of weapon commonly used for defense of person and property and, consequently, they fall within the general protection of section 22. They argue that there is no principle which permits the complete abridgment of one form of constitutionally protected behavior whenever other forms of behavior which enjoy the same form of protection and lead to a substantially similar end are permitted. However, the authorities which plaintiffs cite for this proposition (Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976), 425 U.S. 748, 757-58 n. 15, 48 L.Ed.2d 346, 355-56 n. 15, 96 S.Ct. 1817, 1823 n. 15; New York Public Interest Research Group, Inc. v. Village of Roslyn Estates (E.D.N.Y. 1979), 498 F. Supp. 922, 932) arose in the context of the first amendment. Unlike that amendment, which is designed to encourage the propagation and dissemination of views and ideas (Village of Schaumburg v. Citizens for a Better Environment (1980), 444 U.S. 620, 632, 63 L.Ed.2d 73, 84, 100 S.Ct. 826, 833-34; Hynes v. Mayor of Oradell (1976), 425 U.S. 610, 620, 48 L.Ed.2d 243, 253, 96 S.Ct. 1755, 1760; Broadrick v. Oklahoma (1973), 413 U.S. 601, 611-12, 37 L.Ed.2d 830, 839-40, 93 S.Ct. 2908, 2915) and depends to a large extent on the availability of a variety of forms of expression (e.g., Metromedia, Inc. v. City of San Diego (1981), 453 U.S. 490, 500-03 & n. 8, 69 L.Ed.2d 800, 810-12 & n. 8, 101 S.Ct. 2882, 2889-90 & n. 8), the amendment with which we are dealing was designed neither to encourage nor to discourage the possession of firearms, but merely to guard against the confiscation of all such arms.

Nor do we find merit in plaintiffs' argument that section 22 is a nullity if construed to permit a ban on some of the very categories of weapons it was enacted to protect. We emphasize again that section 22 bestows upon individual citizens for the first time a right to possess some form of weapon suitable for self-defense or recreation, regardless of the adaptability of the weapon for use in an organized militia or of whether it is possessed for the purposes of forming a militia. The enactment of such a provision can scarcely be regarded as an idle gesture.

II. THE PROPRIETY OF THE ORDINANCE UNDER THE HOME RULE POWER

Plaintiffs argue that the regulation of firearms is inherently a matter of exclusive statewide concern because of the mobility of guns and gun owners, and that it is thus beyond the power of local governments acting under color of their home rule power (Ill. Const. 1970, art. VII, sec. 6) to enact an ordinance banning handguns. They observe that it is conceivable that one home rule unit within the State may forbid some form of weapon which another home rule unit affirmatively requires (see Goreville, Ill., Ordinance 82-2 (Dec. 7, 1982) and Pittsburg, Ill., Ordinance 83-3 (June 6, 1983) (requiring all resident heads of households, with certain enumerated exceptions, to own a firearm with ammunition)), that one whose possession of a handgun on his person is legal under the laws of his home town and the State would be severely inconvenienced and precluded from traveling via Morton Grove if possession of handguns by all persons within that village were unlawful (Morton Grove, Ill., Ordinance 81-11, sec. 2(B) (June 8, 1981)), and that in any event a handgun ban that applies only to one community without affecting others in the vicinity would do nothing to reduce the incidence of crimes committed with handguns within the affected community and might in fact attract armed criminals to the community from others nearby where handguns are readily available. City of Des Plaines v. Chicago & North Western Ry. Co. (1976), 65 Ill.2d 1, 5-6; see Doe v. City and County of San Francisco (1982), 136 Cal.App.3d 509, 186 Cal.Rptr. 380 (holding a municipal ordinance banning handguns to be preempted by State law).

Article VII, section 6, of our constitution provides in relevant part:

"(a) * * * Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the ...


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