Kalodimos v. Village of Morton Grove

• Decision Date: 19 October 1984
• Docket Number: No. 58467,58467
• Parties: , 83 Ill.Dec. 308, 53 USLW 2233 Michael KALODIMOS et al., Appellants, v. The VILLAGE OF MORTON GROVE, Appellee.
• Court: Illinois Supreme Court

Page 266

470 N.E.2d 266

103 Ill.2d 483, 83 Ill.Dec. 308, 53

USLW 2233

Michael KALODIMOS et al., Appellants, v. The VILLAGE OF MORTON GROVE, Appellee.

No. 58467.

Supreme Court of Illinois.

Oct. 19, 1984.

James W. Kisse, David W. Carpenter, and Ted K. Yasuda, of Sidley & Austin, Chicago (Richard V. Houpt, Sheldon Davidson and Donald J. Moran, of Pedersen & Houpt, Chicago, and Michael K. McCabe, Richare E. Gardiner, and Robert Dowlut, Washington D.C., of counsel), for appellants.

Martin C. Ashman, of Martin C. Ashman, Ltd., and Thomas P. Sullivan, Michael H. Salsbury, and Eugene R. Wedoff, of Jenner & Block, Chicago, for appellee.

Stephen P. Halbrook, Fairfax, Va., and James Valentino, Jr., Chicago, for amici curiae Illinois Small Business Men's Association et al.

Victor D. Quilici, Bensenville, and Robert G. Johnston and Kenneth A. Michaels, Jr., Chicago, for amici curiae Illinois State Rifle Association and the Illinois Gun Collectors Association.

Gregory C. Picken, of Barron, Lehman, Picken & Raskin, P.A., Miami, Fla., for amicus curiae American Federation of Police.

Duane D. Morse and Valerie A. Lambaise, of Wilmer, Cutler & Pickering, Washington, D.C. (James S. Campbell, Washington, D.C., of counsel), for amicus curiae Handgun Control, Inc.

SIMON, Justice:

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, 104 S.Ct. 194, 78 L.Ed.2d 170. 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, 69 Ill.Dec. 414, 447 N.E.2d 849). 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, 59 S.Ct. 816, 83 L.Ed. 1206, 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, 116 N.E. 182, 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, 116 N.E. 182), 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, 46 Ill.Dec. 116, 413 N.E.2d 870; Client Follow-Up Co. v. Hynes (1979), 75 Ill.2d 208, 222, 28 Ill.Dec. 488, 390 N.E.2d 847.) 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, 3 Ill.Dec. 728, 359 N.E.2d 138.) 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, 3 Ill.Dec. 728, 359 N.E.2d 138; People ex rel. Keenan v. McGuane (1958), 13 Ill.2d 520, 527, 13 Ill.2d 520, 150 N.E.2d 168; see, e.g., Drury v. County of McLean (1982), 89 Ill.2d 417, 422-23, 60 Ill.Dec. 624, 433 N.E.2d 66.) 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...