Quilici v. Village of Morton Grove, 81 C 3432
| Citation | 532 F. Supp. 1169 |
| Decision Date | 29 December 1981 |
| Docket Number | 81 C 4086 and 81 C 5071.,No. 81 C 3432,81 C 3432 |
| Parties | Victor D. QUILICI, Plaintiff, v. VILLAGE OF MORTON GROVE, Defendant. Robert STENGL, et al., Plaintiffs, v. VILLAGE OF MORTON GROVE, et al., Defendants. George L. REICHERT, et al., Plaintiffs, v. VILLAGE OF MORTON GROVE, Defendant. |
| Court | United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois) |
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Victor D. Quilici, pro se.
Robert Gilbert Johnston, Michael Null, Adam Bourgeois, Adam Bourgeois, Ltd., Richard V. Houpt, Sheldon Davidson, Donald J. Moran, Pedersen & Houpt, Chicago, Ill., for plaintiffs.
Martin C. Ashman, Chicago., Ill., Thomas P. Sullivan, Michael H. Salsbury, Eugene R. Wedoff, Jenner & Block, Chicago, Ill., for defendant.
This is a civil action challenging the constitutionality of a gun control ordinance passed by the Trustees of the Village of Morton Grove. On June 8, 1981, the Morton Grove Board of Trustees enacted Ordinance # 81-11, entitled "An Ordinance Regulating the Possession of Firearms and Other Dangerous Weapons." (A copy of the ordinance is attached as an appendix.) In part, the ordinance provides that "no person shall possess, in the Village of Morton Grove ... any handgun, unless the same has been rendered permanently inoperative." The ordinance specifies various limited exceptions for certain individuals, such as peace officers, prison officials, and members of the armed forces and national guard. The ordinance also exempts licensed gun collectors and provides that handgun owners are free to retain their operative handguns for recreational use, as long as the guns are kept and used on the premises of licensed gun clubs and certain other rules are met. Violation of the ordinance is punishable by fines of up to $500.00, and incarceration for up to six months for repeat offenders.
Consolidated here are three civil suits, filed shortly after the enactment of the ordinance, by several residents of Morton Grove.1 The plaintiffs have alleged that the enforcement of the ordinance, which has been stayed pending this court's ruling on its validity, would violate both the Illinois and United States constitutions. Both sides have moved for summary judgment on the issue of whether the ordinance, on its face, violates article 1, section 22 of the Illinois Constitution, or the Second, Fifth, Ninth or Fourteenth Amendments to the United States Constitution. Because the state constitutional issue is potentially dispositive, the court will first address the validity of Ordinance # 81-11 under the Illinois Constitution.
In 1970, a right to arms clause was included in the Illinois Constitution for the first time. Article 1, section 22 provides:
The plaintiffs have contended that Morton Grove's ordinance impermissibly infringes upon that right, while the defendant claims that its action represents a valid exercise of the police power. Central to the court's resolution of this controversy is a determination of the meaning of section 22, itself.
Section 22, on its face, requires a reconciliation of two competing notions of individual right and legislative prerogative. On one hand, it clearly recognizes the constitutional right of the individual "to keep and bear arms," and provides that the right "shall not be infringed." Yet, at the same time, the section expressly sanctions "constitutional infringements" of the right pursuant to the "police power," which is generally understood to mean the power of state and local governments to regulate and even prohibit conduct which is perceived to be inimical to the safety, health and welfare of society. People v. Warren, 11 Ill.2d 420, 424-25, 143 N.E.2d 28 (1957). Accord, Drysdale v. Prudden, 195 N.C. 722, 143 S.E. 530, 536 (1928); Liquor Control Commission v. City of Calumet City, 28 Ill.App.3d 279, 283, 328 N.E.2d 153 (1st Dist. 1975).
The plaintiffs have advocated a broad and liberal interpretation of the individual right to keep and bear arms, and a restrictive view of the scope of the police power. That power, they insist, must not be interpreted in a manner which would allow it to circumscribe the individual right contained in section 22. The defendant disagrees. Morton Grove argues that since the individual right in section 22 is made expressly subject to the broad power of the legislature, that right should be construed narrowly, and the police power should be interpreted according to its usual and customary meaning, free from artificially-imposed restrictions. Because the language contained in section 22 itself offers no clue as to the proper reconciliation of these two competing concepts, the court finds it necessary to examine the provision's constitutional history, the source traditionally relied upon for the clarification of ambiguous constitutional provisions. See Cosentino v. County of Adams, 82 Ill.2d 565, 46 Ill.Dec. 116, 413 N.E.2d 870 (1980); Client Follow-Up Co. v. Hynes, 75 Ill.2d 208, 28 Ill.Dec. 488, 390 N.E.2d 847 (1979); Wolfson v. Avery, 6 Ill.2d 78, 126 N.E.2d 701 (1955); Davis v. Attic Club, 56 Ill.App.3d 58, 13 Ill.Dec. 811, 371 N.E.2d 903 (1st Dist. 1977).
While it is true that there are several sources upon which one might draw in reviewing the constitutional history of a provision, "the practice of consulting the debates of the members of the convention ... has long been indulged in by courts as aiding to a true understanding of the meaning of provisions that are thought to be doubtful." Burke v. Snively, 208 Ill. 328, 344-45, 70 N.E. 327 (1904), quoted with approval in Coalition for Political Honesty v. State Board of Elections, 65 Ill.2d 453, 467, 3 Ill.Dec. 728, 359 N.E.2d 138 (1976); Wolfson v. Avery, 6 Ill.2d at 88, 126 N.E.2d 701; Davis v. Attic Club, 56 Ill.App.3d at 67-70, 13 Ill.Dec. 811, 371 N.E.2d 903. In this case, the court has found the delegates' debate on section 22 helpful to a meaningful reconciliation of the individual's right to arms and the state's broad police powers.
Prior to the delegates' floor debate on section 22, the Bill of Rights Committee voted twelve to three to include the following right to arms provision in the new constitution:
Subject only to the police power of the State, the right of the individual citizen to keep and bear arms shall not be infringed.
Vol. 6, Record of Proceedings, Sixth Illinois Constitutional Convention hereinafter "Proceedings" 84.2 Leonard Foster, the spokesman for the majority of the committee, was responsible for explaining the provision to the delegates. Although his explanation necessitated a narrow construction of the individual's right to arms, Foster suggested a resolution of the apparent tension between the section's terms. According to Foster, section 22 stood only for the limited right of the individual citizen to keep and bear "some form" of firearm; and as long as the government, in the exercise of its police power, did not totally prohibit the possession of all firearms, the right provided for in section 22 was not violated. 3 Proceedings at 1687, 1689, 1718 (remarks of delegate Foster).
Although the right to arms described by delegate Foster might have appeared on its face to be evanescent, Foster told the convention that under the 1870 Illinois Constitution, which contained no right to arms provision at all, a total prohibition of firearms was possible, and that the proposed section was designed to do no more than eliminate that possibility:
It could be argued that, in theory, the legislature now 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. Nothing further.
3 Proceedings at 1688. Later in the debate, Foster emphasized just how limited the proposed right to arms would be:
3 Proceedings at 1718 (order inverted). Foster characterized the committee as "very reluctant" to include any right to arms provision at all in the new constitution, 3 Proceedings at 1687, and indicated clearly in his remarks that once the committee finally decided to include such a provision, that provision was intended to be construed narrowly, and fully subject to the broad police power.
During the debate, several of the delegates questioned Foster specifically with respect to the meaning of the term "police power" in the context of section 22, and any limitations which section 22 might impose upon the legislature. Foster was unequivocal: Section 22 would restrain no exercise of the legislature's power short of an absolute ban on all firearms. That statement prompted the following exchange:
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