727 F.2d 633 (7th Cir. 1984), 83-1431, Sklar v. Byrne

Docket Nº:83-1431.
Citation:727 F.2d 633
Party Name:Jerome SKLAR, Plaintiff-Appellant, v. Jane M. BYRNE, individually and as Mayor of the City of Chicago, and Richard J. Brzeczek, individually and as Superintendent of the Chicago Police Department, Defendants-Appellees.
Case Date:February 08, 1984
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 633

727 F.2d 633 (7th Cir. 1984)

Jerome SKLAR, Plaintiff-Appellant,

v.

Jane M. BYRNE, individually and as Mayor of the City of

Chicago, and Richard J. Brzeczek, individually and

as Superintendent of the Chicago Police

Department, Defendants-Appellees.

No. 83-1431.

United States Court of Appeals, Seventh Circuit

February 8, 1984

Argued Sept. 26, 1983.

As Amended April 17, 1984.

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[Copyrighted Material Omitted]

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Edward B. Arnolds, John Marshall Law School, Chicago, Ill., for plaintiff-appellant.

Maureen Kelly Ivory, Asst. Corp. Counsel, Chicago, Ill., for defendants-appellees.

Before PELL and CUDAHY, Circuit Judges, and WILKINS, Senior District Judge. [*]

CUDAHY, Circuit Judge.

This case presents a challenge to the constitutionality of Chicago's laws regulating the possession and registration of handguns. The plaintiff-appellant contends that the city has violated the equal protection clause of the fourteenth amendment by discriminating against persons who have moved or will move to Chicago after the effective date of the ordinance, April 10, 1982. He seeks both a declaration that the ordinance is invalid and a permanent injunction against the enforcement of its restrictions on the registration of handguns by new residents. The district court dismissed the complaint for failure to state a claim upon which relief could be granted, and we affirm 556 F.Supp. 736.

I.

On March 19, 1982, the Chicago City Council passed an ordinance amending Chapter 11.1 of the Municipal Code of the City of Chicago which regulates the sale, possession and registration of firearms and ammunition. The ordinance requires that all firearms in Chicago be registered with the city. Chicago, Ill., Municipal Code Sec. 11.1-2. 1 The ordinance also classifies some firearms as "unregisterable," thus making illegal their possession in the City of Chicago. 2 Among the categories of "unregisterable" firearms are "Handguns, except those validly registered to a current owner in the City of Chicago prior to the effective date of this Chapter." Chicago Municipal Code Sec. 11.1-3(c)(1). The effective date of the Chapter was April 10, 1982. The classification in section 11.1-3(c)(1) is the subject of the plaintiff's equal protection challenge.

This language in section 11.1-3(c)(1) thus limits the legal supply of handguns in the City of Chicago to those lawfully registered with the city on the effective date and prevents any Chicago citizen who did not own a registered handgun on the effective

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date from lawfully purchasing, registering and possessing a handgun in Chicago. 3

On April 10, 1982, plaintiff Jerome Sklar lived in the Chicago suburb of Skokie, Illinois. According to his complaint, he then owned a handgun and possessed a valid Illinois Firearms Owner Identification Card. On April 15, 1982, just five days after the Chicago handgun ordinance took effect, the plaintiff moved to Chicago. According to his affidavit, he would like to keep his handgun at his home in Chicago for personal protection and for "lawful recreational handgun-related activity." The ordinance prevents him from keeping his gun in his home because it was not "validly registered to a current owner in the City of Chicago" before April 10, 1982. Chicago Municipal Code Sec. 11.1-3(c)(1). The plaintiff argues that the ordinance violates the equal protection clause of the fourteenth amendment because it creates an unconstitutional classification based upon residence. He contends that the ordinance discriminates against new residents of Chicago who either own or wish to own handguns.

The plaintiff brought his complaint under 42 U.S.C. Sec. 1983, alleging that city officials are depriving him of his rights under the federal Constitution. He named as defendants the then mayor of Chicago and superintendent of the Chicago police department. The defendants moved to dismiss the complaint for failure to state a claim upon which relief could be granted. The district court granted the motion to dismiss the federal claim a decision issued February 14, 1983. 556 F.Supp. 736. 4 The district court relied upon our decision in Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir.1982), cert. denied, --- U.S. ----, 104 S.Ct. 194, 78 L.Ed.2d 170 (1983), and concluded that the Chicago firearms ordinance does not infringe any federal constitutional right. Therefore, the district court applied the "rational basis" standard of review appropriate to equal protection analysis where a statute does not impinge upon a fundamental right or employ a suspect classification. The district court concluded that the ordinance rationally furthers a legitimate governmental purpose and does not violate the equal protection clause. We agree that the ordinance requires only rational basis review, and we agree that the ordinance meets the standard. Therefore, we affirm the district court's dismissal of the complaint.

II.

The first question we face in this appeal is the appropriate standard for our review of the classification scheme in the handgun ordinance. The standard of review depends upon the character of the legislative classification and the nature of the individual interests at stake. Where the legislative classification works to the disadvantage of a constitutionally suspect class--based, for example, on race, nationality, alienage or religious affiliation--then courts may uphold the classification only if it is "precisely tailored to serve a compelling governmental interest." Plyler v. Doe, 457 U.S. 202, 216-17 & n. 14, 102 S.Ct. 2382, 2394-95 & n. 14, 72 L.Ed.2d 786 (1982). Similarly, if the legislative classification impinges upon the exercise of a fundamental personal right, the classification must meet the same exacting "compelling interest" standard. 457 U.S. at 216-17, 102 S.Ct. at 2394-95. If the legislative classification neither impinges on a fundamental personal right nor employs an inherently suspect classification, courts will generally uphold the classification if it is rationally related to a legitimate state interest, or, as the Supreme Court phrased the issue in Plyler v. Doe, if it "bears some fair relationship to a legitimate public purpose." 457 U.S. at 216, 102 S.Ct. at 2394. 5 Here we attempt to

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follow the Supreme Court's pattern of analysis by examining the nature of the personal rights affected by Chicago's ordinance and the character of the classification in the ordinance.

The Chicago handgun ordinance does not impinge upon any federal constitutional right to bear arms. This court held recently that the second amendment regulates only the activities of the federal government--not those of the states or their subdivisions. Quilici v. Village of Morton Grove, supra, 695 F.2d at 269-71. Nor is the asserted right to bear arms pivotal in the effective exercise of constitutionally guaranteed rights. See San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 102, 93 S.Ct. 1278, 1332, 36 L.Ed.2d 16 (1973) (Marshall, J., dissenting) ("The task in every case should be to determine the extent to which constitutionally guaranteed rights are dependent on interests not mentioned in the Constitution."). Therefore, the second amendment does not require us to apply the compelling governmental interest standard to this ordinance.

Plaintiff urges that the ordinance also infringes a fundamental right guaranteed by the Illinois Constitution. Article I, section 22 of 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." According to plaintiff, section 22 creates a fundamental personal right upon which the Chicago ordinance impinges, and the ordinance's classification scheme is therefore subject to compelling state interest review under the equal protection clause of the fourteenth amendment. Plaintiff is correct in so far as he contends that a state may not arbitrarily discriminate among its citizens when it creates state rights, whether statutory or constitutional. Several Supreme Court decisions have upheld equal protection challenges to state laws which created state rights but did so with a classification scheme which was arbitrary. See, e.g., Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972) (right to vote in state elections); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) (right to appeal criminal conviction).

Examination of section 22, however, demonstrates that an individual's right to bear arms in Illinois is narrow and subject to extensive regulation. First, the individual's right to bear arms is expressly "subject" to the "police power." Section 22 thus gives the state and municipalities wide latitude to regulate the private possession of firearms in order to protect the public health, safety and welfare. Second, the right is only a qualified right to bear some unspecified "arms" rather than a right to bear any particular type of firearm. 6 These two limitations on section 22 permit a municipality to prohibit all private possession of handguns. Quilici v. Village of Morton Grove, supra, 695 F.2d at 267; Kalodimos v. Village of Morton Grove, 113 Ill.App.3d 488, 69 Ill.Dec. 414, 447 N.E.2d 849, 852 (1983), leave to appeal granted, No. 58467 (Ill.Sup.Ct. October 4, 1983). In the case before us, of course, the city has exercised its police power to restrict the availability of firearms. Since the state constitutional right is narrowly circumscribed by...

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