Quilici v. Village of Morton Grove

• Decision Date: 10 December 1982
• Docket Number: 82-1076 and 82-1132,Nos. 82-1045,s. 82-1045
• Citation: 695 F.2d 261
• Parties: Victor D. QUILICI, Robert Stengl, et al., George L. Reichert, and Robert E. Metler, Plaintiffs-Appellants, v. VILLAGE OF MORTON GROVE, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 261

695 F.2d 261

Victor D. QUILICI, Robert Stengl, et al., George L.

Reichert, and Robert E. Metler, Plaintiffs-Appellants, v. VILLAGE OF MORTON GROVE, et al., Defendants-Appellees.

Nos. 82-1045, 82-1076 and 82-1132.

United States Court of Appeals, Seventh Circuit.

Argued May 28, 1982.

Decided Dec. 6, 1982.

As Amended Dec. 10, 1982.

Victor D. Quilici, Bennsonville, Ill., Don B. Kates, Jr., O'Brien & Hallisey, San Francisco, Cal., Richard V. Houpt, Pedersen & Houpt, Donald J. Moran, Chicago, Ill., for plaintiffs-appellants.

Eugene R. Wedoff, Jenner & Block, Chicago, Ill., for defendants-appellees.

Before BAUER, WOOD, and COFFEY, Circuit Judges.

BAUER, Circuit Judge.

This appeal concerns the constitutionality of the Village of Morton Grove's Ordinance No. 81-11, ¹ which prohibits the possession of handguns within the Village's borders. The district court held that the Ordinance was constitutional. We affirm.

I

Victor D. Quilici initially challenged Ordinance No. 81-11 in state court. Morton Grove removed the action to federal court where it was consolidated with two similar actions, one brought by George L. Reichert and Robert E. Metler (collectively Reichert) and one brought by Robert Stengl, Martin Gutenkauf, Alice Gutenkauf, Walter J. Dutchak and Geoffrey Lagonia (collectively Stengl). Plaintiffs alleged that Ordinance No. 81-11 violated article I, section 22 of the Illinois Constitution and the second, ninth and fourteenth amendments of the United States Constitution. They sought an order declaring the Ordinance unconstitutional and permanently enjoining its enforcement. The parties filed cross motions for summary judgment. The district court granted Morton Grove's motion for summary judgment and denied plaintiffs' motions for summary judgment.

In its opinion, Quilici v. Village of Morton Grove, 532 F.Supp. 1169 (N.D.Ill.1981), the district court set forth several reasons for upholding the handgun ban's validity under the state and federal constitutions. First, it held that the Ordinance which banned only certain kinds of arms was a valid exercise of Morton Grove's police power and did not conflict with section 22's conditional right to keep and bear arms. Second, relying on Presser v. Illinois, 116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615 (1886), the court concluded that the second amendment's guarantee of the right to bear arms has not been incorporated into the fourteenth amendment and, therefore, is inapplicable to Morton Grove. Finally, it stated that the ninth amendment does not include the right to possess handguns for self-defense. Appellants contend that the district court incorrectly construed the relevant constitutional provisions, assigning numerous errors based on case law, historical analysis, common law traditions and public policy concerns. ²

While we recognize that this case raises controversial issues which engender strong emotions, our task is to apply the law as it has been interpreted by the Supreme Court, regardless of whether that Court's interpretation comports with various personal views of what the law should be. We are also aware that we must resolve the controversy without rendering unnecessary constitutional decisions. Richard Nixon v. A. Ernest Fitzgerald, --- U.S. ----, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982). With these principles in mind we address appellants' contentions.

II

We consider the state constitutional issue first. 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.

Ill. Const. art. I, Sec. 22. The parties agree that the meaning of this section is controlled by the terms "arms" and "police power" but disagree as to the scope of these terms.

Relying on the statutory construction principles that constitutional guarantees should be broadly construed and that constitutional provisions should prevail over conflicting statutory provisions, appellants allege that section 22's guarantee of the right to keep and bear arms prohibits a complete ban of any one kind of arm. They argue that the constitutional history of section 22 establishes that the term "arms" includes those weapons commonly employed for "recreation or the protection of person and property," 6 Record of Proceedings, Sixth Illinois Constitutional Convention 87 (Proceedings), and contend that handguns have consistently been used for these purposes.

Appellants concede that the phrase "subject to the police power" does not prohibit reasonable regulation of arms. Thus, they admit that laws which require the licensing of guns or which restrict the carrying of concealed weapons or the possession of firearms by minors, convicted felons, and incompetents are valid. However, they maintain that no authority supports interpreting section 22 to permit a ban on the possession of handguns merely because alternative weapons are not also banned. They argue that construing section 22 in this manner would lead to the anomalous situation in which one municipality completely bans handguns while a neighboring municipality completely bans all arms but handguns.

In contrast, Morton Grove alleges that "arms" is a general term which does not include any specific kind of weapon. Relying on section 22's language, which they characterize as clear and explicit, Morton Grove reads section 22 to guarantee the right to keep only some, but not all, arms which are used for "recreation or the protection of person and property." It argues that the Ordinance passes constitutional muster because standard rifles and shotguns are also used for "recreation or the protection of person and property" and Ordinance No. 81-11 does not ban these weapons.

While Morton Grove does not challenge appellants' assertion that "arms" includes handguns, we believe that a discussion of the kind of arms section 22 protects is an appropriate place to begin our analysis. Because we disagree with Morton Grove's assertion that section 22's language is clear and explicit, we turn to the constitutional debates for guidance on the proper construction of arms. ³ Client Follow-Up Co. v. Hynes, 75 Ill.2d 208, 216, 28 Ill.Dec. 488, 390 N.E.2d 847, 850 (1979), citing Wolfson v. Avery, 6 Ill.2d 78, 126 N.E.2d 701 (1955). ⁴

The debates indicate that the category of arms protected by section 22 is not limited to military weapons; the framers also intended to include those arms that "law-abiding persons commonly employ[ed]" for "recreation or the protection of person and property." 6 Proceedings 87. Handguns are undisputedly the type of arms commonly used for "recreation or the protection of person and property."

Our conclusion that the framers intended to include handguns in the class of protected arms is supported by the fact that in discussing the term the Proceedings refer to People v. Brown, 253 Mich. 537, 541-42, 235 N.W. 245, 246-47 (1931) and State v. Duke 42 Tex. 455, 458 (1875). Brown defines weapons as those "relied upon ... for defense or pleasure," including "ordinary guns" and "revolvers." 253 Mich. at 542, 235 N.W. at 247. Duke states that "[t]he arms which every person is secured the right to keep and bear (in defense of himself or the State, subject to legislative regulation), must be such arms as are commonly kept, ... and are appropriate for ... self-defense, as well as such as are proper for the defense of the State." 42 Tex. at 458. The delegates' statements and reliance on Brown and Duke convinces us that the term arms in section 22 includes handguns.

Having determined that section 22 includes handguns within the class of arms protected, we must now determine the extent to which a municipality may exercise its police power to restrict, or even prohibit, the right to keep and bear these arms. The district court concluded that section 22 recognizes only a narrow individual right which is subject to substantial legislative control. It noted that "[t]o the extent that one looks to the convention debate for assistance in reconciling the conflict between the right to arms and the exercise of the police power, the debate clearly supports a narrow construction of the individual right." Quilici v. Village of Morton Grove, 532 F.Supp. at 1174. It further noted that while the Proceedings cite some cases holding that the state's police power should be read restrictively, those cases were decided under "distinctly different constitutional provisions" and, thus, have little application to this case. Id. at 1176.

We agree with the district court that the right to keep and bear arms in Illinois is so limited by the police power that a ban on handguns does not violate that right. In reaching this conclusion we find two factors significant. First, section 22's plain language grants only the right to keep and bear arms, not handguns. Second, although the framers intended handguns to be one of the arms conditionally protected under section 22, they also envisioned that local governments might exercise their police power to restrict, or prohibit, the right to keep and bear handguns. For example, Delegate Foster, speaking for the majority, explained:

It could be argued that, in theory, the legislature now [prior to the adoption of the 1970 Illinois Constitution] has the right to ban all firearms in the state as far as individual citizens owning them is concerned. That is the power which we wanted to restrict--an absolute ban on all firearms.

3 Proceedings 1688. Delegate Foster then noted that section 22 "would prevent a complete ban on all guns, but there could be a ban on certain categories." Id. at 1693. ⁵ It is difficult to imagine clearer evidence that section 22 was intended to permit a municipality to ban handguns if it so desired.

Appellants argue that construing section 22 to protect only some unspecified categories of arms, thereby allowing municipalities to exercise their police power to enact dissimilar gun control laws, leads to "untenable" an...