Kalodimos v. Village of Morton Grove

• Decision Date: 09 February 1983
• Docket Number: No. 82-282,82-282
• Parties: , 69 Ill.Dec. 414 Michael KALODIMOS, George L. Reichert, Robert E. Metler, and Richard A. Schnell, Plaintiffs-Appellants, v. VILLAGE OF MORTON GROVE, an Illinois Municipal Corporation, Defendant-Appellee. First District, Third Division
• Court: United States Appellate Court of Illinois

Page 849

447 N.E.2d 849

113 Ill.App.3d 488, 69 Ill.Dec. 414

Michael KALODIMOS, George L. Reichert, Robert E. Metler, and Richard A. Schnell, Plaintiffs-Appellants, v. VILLAGE OF MORTON GROVE, an Illinois Municipal Corporation,

Defendant-Appellee.

No. 82-282.

Appellate Court of Illinois,

First District, Third Division.

Feb. 9, 1983.

Rehearing Denied April 20, 1983.

Pedersen & Houpt, Chicago (Michael K. McCabe, Richard E. Gardiner, National Rifle Ass'n, Washington, D.C., Robert Dowlut, Washington, D.C., Richard V. Houpt, Sheldon Davidson, Donald J. Moran, Chicago, of counsel), for plaintiffs-appellants.

Martin C. Ashman, Ltd., Chicago (Thomas P. Sullivan, Michael H. Salsbury, Eugene R. Wedoff, Chicago, of counsel), Jenner & Block, Chicago, for defendant-appellee.

McNAMARA, Presiding Justice:

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 fall 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." 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 an 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, 46 Ill.Dec. 116, 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...