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Matthew D. Wilson et al., Appellants v. the County of

April 5, 2012


The opinion of the court was delivered by: Justice Theis

JUSTICE THEIS delivered the judgment of the court, with opinion.

Chief Justice Kilbride and Justices Freeman, Thomas, Garman, Karmeier, and Burke concurred in the judgment and opinion.


¶ 1 This appeal involves a challenge to the constitutionality of the Blair Holt Assault Weapons Ban (Cook County Ordinance No. 06-O-50 (approved Nov. 14, 2006)) (Ordinance). Plaintiffs, Matthew D. Wilson, Troy Edhlund, and Joseph Messineo, sought a declaration, inter alia, that the Ordinance violates the due process and equal protection clauses of the United States Constitution and violates the second amendment right to bear arms. The circuit court of Cook County dismissed the first amended complaint, pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2006)), finding that plaintiffs failed to state a cause of action that the Ordinance unconstitutionally infringed on the right to bear arms or violated principles of due process or equal protection. The appellate court upheld the dismissal. 407 Ill. App. 3d 759. For the following reasons, we affirm in part and reverse in part the judgment of the appellate court, and remand the cause to the trial court for further proceedings.


¶ 2 History of the Ordinance

¶ 3 For nearly two decades, Cook County has had various ordinances in place banning the possession of assault weapons. Beginning in 1993, based upon a finding of public health and welfare concerns caused by both assault weapons and firearms in general, the Cook County board of commissioners enacted the Cook County Firearms Dealer's License and Assault Weapons and Ammunition Ban Ordinance (Cook County Ordinance No. 93-O-37 (approved Jan. 1, 1994)). The law prohibited the sale, transfer, acquisition, ownership, or possession of "assault weapons," defined by a specific list of 60 rifles and pistols designated by model name or type, and "assault ammunition," including any ammunition magazine having a capacity of more than 12 rounds of ammunition. The commissioners specifically noted in the prefatory clause of the ordinance that: (1) easy access to firearms and ammunition had become a concern of public health, safety and welfare for the citizens of Cook County; (2) assault weapons were 20 times more likely to be used in the commission of a crime than other kinds of weapons; and (3) there was "no legitimate sporting purpose for the military style assault weapons being used on the streets."*fn1

¶ 4 Shortly thereafter, in 1994, after a series of hearings on the subject of semiautomatic assault weapons over a five-year period,*fn2 Congress enacted the Violent Crime Control and Law Enforcement Act, Pub. L. 103-322, 108 Stat. 1796 (codified at 18 U.S.C. §§ 921, 922 (1994)), including a ban on the possession of "semiautomatic assault weapons" and "large capacity ammunition feeding devices" not lawfully possessed as of the date of the enactment. 18 U.S.C. §§ 921(a)(30), (a)(31), 922(v), (w) (1994). The law defined a "semiautomatic assault weapon" in several different ways, including a specific list of banned firearms or "copies or duplicates" of those firearms. In addition to banning weapons by name, the law banned other semiautomatic rifles, pistols and shotguns that possessed two or more specific characteristics that the legislature found were designed for military applications and that distinguished the firearms from traditional sporting weapons or those useful for self-defense. 18 U.S.C. § 921(a)(30)(A)-(D) (1994). Congress found these features were combat-designed features that enabled shooters to discharge high numbers of bullets rapidly in a "spray fire" fashion while maintaining control of the firearm, creating enhanced lethality. H.R. Rep. No. 103-489, at 18-20 (1994), reprinted in 1994 U.S.C.C.A.N. 1820, 1826-27. The law also specifically exempted a list of 661 firearms by make and model that the legislature found were most commonly used in hunting and recreational sports. 18 U.S.C. § 921, app. A (1994). The Act was written to expire 10 years after its enactment, and due to a lack of further congressional action, the law expired in 2004.

¶ 5 Thereafter, in 2006, the County sought to fill the void left by the expiration of the federal assault weapons ban by amending the 1993 ordinance. Currently, the ordinance expands the definition of assault weapon by imposing a characteristic-based test similar to the federal ban and by including a nonexhaustive list of various prohibited models and copies or duplicates thereof. Cook County Ordinance No. 06-O-50 (approved Nov. 14, 2006). The Ordinance also prohibits the possession of large capacity magazines with the capacity to accept more than 10 rounds of ammunition. Id. Under its provisions, a person who prior to the enactment lawfully possessed assault weapons or large capacity magazines had 90 days from the effective date to surrender the weapons to the sheriff, to remove the weapons from the county, or to modify the weapons to render them inoperable or no longer defined as an assault weapon. Id. Violation of the Ordinance is punishable by imprisonment for not more than six months and by a fine between $500 and $1,000. Id. In 2007, the Ordinance was renamed the Blair Holt Assault Weapons Ban. Cook County Ordinance No. 07-O-36 (approved June 19, 2007).

¶ 6 Procedural History

¶ 7 In September 2007, plaintiffs filed a preenforcement action seeking declaratory and injunctive relief against the County, the individual commissioners of the Cook County board of commissioners, and Cook County Sheriff Tom Dart, and challenging, inter alia, the constitutionality of the Ordinance. In their first amended complaint, plaintiffs allege that they are "law abiding citizens" and residents of Cook County who have properly issued firearm owner's identification cards. They allege that they own various firearms, magazines, and gun parts which were legally purchased for self-defense in the home, for recreational purposes, or as part of firearm collections.

¶ 8 Of relevance to the arguments raised in this appeal, plaintiffs allege in count I that the Ordinance violates the due process clause of the United States Constitution because the definition of assault weapons is unconstitutionally vague. Plaintiffs allege that they are of ordinary intelligence, and that based upon the vague definitions of assault weapons in the Ordinance they must guess whether their firearms fall within the purview of the Ordinance, subjecting them to the risk of imprisonment and fines. In addition, plaintiffs allege that they seek to legally purchase additional firearms, parts, and accessories, but cannot because plaintiffs are uncertain whether they may be prohibited under the Ordinance. Plaintiffs also indicate that the 90-day time period in which to conform with the Ordinance has passed. In count IV, plaintiffs allege a violation of the individual right to bear arms as guaranteed under the second amendment to the United States Constitution. In count VI, plaintiffs allege a violation of the equal protection clause of the United States Constitution because the Ordinance arbitrarily classifies certain firearms. Plaintiffs attached various photographs of certain firearms to support their allegations.*fn3

¶ 9 Thereafter, the circuit court granted the County's motion to dismiss with prejudice the first amended complaint pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2006)), holding that the claims failed as a matter of law. The court found that: (1) the Ordinance was not unconstitutionally vague; (2) the Ordinance did not violate the second amendment because it constrained only infringement by the federal government and had never been incorporated into the fourteenth amendment; and (3) plaintiffs failed to state a cause of action for a violation of the equal protection clause.

¶ 10 The appellate court affirmed, ruling that the Supreme Court's holding in District of Columbia v. Heller, 554 U.S. 570 (2008), did not provide a fundamental right to bear arms applicable to the states and, therefore, the right to bear arms was subject to the police power of the state. Wilson v. Cook County, 394 Ill. App. 3d 534, 542-44 (2009). The appellate court additionally found that the circuit court properly denied plaintiffs' vagueness and equal protection challenges. Id. at 544-46.

¶ 11 Plaintiffs subsequently filed a petition for leave to appeal in this court. While the petition was pending, the United States Supreme Court filed its decision in McDonald v. City of Chicago, 561 U.S. ___, 130 S. Ct. 3020 (2010). The Supreme Court held for the first time that the second amendment applies to the states through the due process clause of the fourteenth amendment. Id. at __, 130 S. Ct. at 3050. We entered a supervisory order directing the appellate court to vacate its prior judgment and to reconsider the appeal in light of McDonald. Wilson v. Cook County, 237 Ill. 2d 593 (2010) (supervisory order). On remand, the appellate court again affirmed the circuit court's dismissal of the complaint. Wilson v. Cook County, 407 Ill. App. 3d 759 (2011). Therein, the court held, inter alia, that the second amendment right does not extend to assault weapons and that the Ordinance is substantially related to an important governmental interest. Wilson, 407 Ill. App. 3d at 773-74. Specifically, relying on the decisions in People v. James, 94 Cal. Rptr. 3d 576 (Cal. Ct. App. 2009), and Heller v. District of Columbia, 698 F. Supp. 2d 179 (D.D.C. 2010), vacated in part, No. 10-7036, 2011 WL 4551558 (D.C. Cir. Oct. 4, 2011), the court found the restrictions of the Ordinance are supported by the historical tradition of prohibiting the carrying of dangerous and unusual weapons and allow for the continued protected use of common firearms. Wilson, 407 Ill. App. 3d at 773-74. The court further held that the definitions in the Ordinance are not vague, but have their plain and ordinary meanings, and that plaintiffs failed to allege any facts that would support an equal protection claim. Id. at 774-75.

¶ 12 We subsequently granted plaintiffs' petition for leave to appeal (Ill. S. Ct. R. 315 (eff. Feb. 26, 2010)). We allowed the Commonwealth Second Amendment, the Illinois Conservation Police Lodge, certain Illinois legislators, the Illinois Firearms Manufacturers Association, the National Shooting Sports Foundation, and the National Rifle Association of America, Inc., to submit amicus curiae briefs in support of plaintiffs. We additionally allowed the Brady Center to Prevent Gun Violence, the Legal Community Against Gun Violence, the City of Chicago, the Major Cities Chiefs Association, and the Association of Prosecuting Attorneys to submit amicus curiae briefs in support of the County.


¶ 14 This appeal comes before the court on the circuit court's grant of a motion to dismiss pursuant to section 2-615 of the Code. A motion to dismiss under section 2-615 challenges the legal sufficiency of the complaint based on defects on the face of the complaint. Sheffler v. Commonwealth Edison Co., 2011 IL 110166, ¶ 61. "The critical inquiry in deciding a section 2-615 motion to dismiss is whether the allegations in the complaint, considered in a light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief can be granted." Id. A cause of action will be dismissed on the pleadings only if it is clearly apparent that no set of facts can be proved that would entitle the plaintiff to relief. Id. In ruling on such a motion, only those facts apparent from the face of the pleadings, matters of which the court can take judicial notice, and judicial admissions in the record may be considered. Pooh-Bah Enterprises, Inc. v. County of Cook, 232 Ill. 2d 463, 473 (2009). We review de novo an order granting a section 2-615 motion to dismiss. Id. We also note that the ultimate question of whether an ordinance is unconstitutional is a question of law, which this court also reviews de novo. People v. Madrigal, 241 Ill. 2d 463, 466 (2011).

¶ 15 The Ordinance

¶ 16 We begin with an overview of the Ordinance. Section 54-212 of the Cook County Code provides that "No person shall manufacture, sell, offer or display for sale, give, lend, transfer ownership of, acquire or possess any assault weapon or large capacity magazine." Cook County Code § 54-212 (amended by Cook County Ordinance No. 06-O-50 (approved Nov. 14, 2006)). Section 54-211 specifically defines assault weapon by the following characteristics:

"(1) A semiautomatic rifle that has the capacity to accept a large capacity magazine[,] detachable or otherwise[,] and one or more of the following:

(A) Only a pistol grip without a stock attached;

(B) Any feature capable of functioning as a protruding grip that can be held by the non-trigger hand;

(C) A folding, telescoping or thumbhole stock; (D) A shroud attached to the barrel, or that partially or completely encircles the barrel, allowing the bearer to hold the firearm with the non-trigger hand without being burned, but excluding a slide that encloses the barrel; or

(E) A muzzle brake or muzzle compensator;

(2) A semiautomatic pistol or any semi-automatic rifle that has a fixed magazine, that has the capacity to accept more than 10 rounds of ammunition;

(3) A semiautomatic pistol that has the capacity to accept a detachable magazine and has one ...

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