dissenting:
I join in the very convincing dissent of my colleague, Justice Moran. In addition, I wish to address the question of the use of police power by the village of Morton Grove to ban the ownership of handguns.
The majority opinion concedes that section 22 of article I of our Illinois Constitution broadened the scope of the right to arms from the limited collective right of the Federal Constitution to an individual right covering a wider variety of arms and that the Illinois Constitution bestows upon individual citizens the right to possess weapons suitable for self-defense and recreation. This constitutionally granted right is subject only to regulation through the use of the police power.
This court, in Nahser v. City of Chicago (1915), 271 Ill. 288, 291-92, addressed what constitutes a legitimate use of the police power by stating:
“Under what circumstances or conditions the police power of the State may be exercised was defined in City of Chicago v. Netcher, 183 Ill. 104, as follows: ‘In order to sustain legislative interference with the business of the citizen by virtue of the police power it is necessary that the act should have some reasonable relation to the subjects included in such power. If it is claimed that the statute or ordinance is referable to the police power, the court must be able to see that it tends in some degree towards the prevention of offenses or the preservation of the public health, morals, safety or welfare. It must be apparent that some such end is the one actually intended and that there is some connection between the provisions of the law and such purpose. If it is manifest that the statute or ordinance has no such object, but, under the guise of a police regulation, is an invasion of the property rights of the individual, it is the duty of the court to declare it void.’ ”
The majority uses equal protection standards relating to statutory classification to support its statement that police regulations will be upheld if any state of facts may be reasonably conceived to justify them, citing McGowan v. Maryland (1961), 366 U.S. 420, 426, 6 L. Ed. 2d 393, 399, 81 S. Ct. 1101, 1105, and Illinois Housing Development Authority v. Van Meter (1980), 82 Ill. 2d 116, 122. Both of these cases involved equal protection questions, and the language relied on relates to statutory discrimination through classification.
I am not concerned with an equal protection question. We are here dealing with a due process question: the taking away of a constitutionally given right — the right to arms — through the exercise of the police power. The language of this court in Nahser quoted above specifies under what circumstances the police power may be exercised. That language is supplemented by the holding of this court in Klein v. Department of Registration & Education (1952), 412 Ill. 75, where, after finding that the right to engage in a legitimate trade, occupation, business or profession is embraced within the constitutional guarantees of liberty and the pursuit of happiness, the court stated:
“The right to pursue a trade or calling is, however, subordinate to the right of the State to limit such freedom of action where the public health, safety or welfare may require. [Citations.] In instances where the police power is invoked to regulate and supervise a legitimate occupation, the restraint imposed must be reasonable. The legislative determination that regulations are needful is not conclusive and is always subject to review. In order for such regulations to be lawfully imposed upon the constitutional rights of the individual to pursue his trade, profession or business, the act passed under the guise of a measure to protect the public health, safety and welfare must have a definite relation to the ends sought to be attained.” Klein v. Department of Registration & Education (1952), 412 Ill. 75, 78-79.
This court's inquiry in reviewing the legislative .exercise of the police power should be whether the legislation represents a rational means to accomplish a proper purpose. (Pozner v. Mauck (1978), 73 Ill. 2d 250, 255.) Thus, the inquiry must be: First, what purpose does the legislative body seek to accomplish by depriving the residents of Morton Grove of the constitutionally given right to arms? Second, is it a proper purpose; that is, one that may be constitutionally achieved by the use of the police power? Lastly, does the ordinance use a rational means of accomplishing the purpose? As noted in the language quoted from Klein, in order for such a regulation to be lawfully imposed on a constitutional right of an individual, the act passed under the guise of a measure to protect the public health, safety and welfare must have a definite relation to the ends sought to be attained.
As the majority opinion notes, the ordinance, in its preamble, cites certain interests of the village, such as reducing “the potentiality of firearm related deaths and injuries” caused by “the easy and convenient availability of certain types of firearms and weapons,” and finds that “handguns play a major role in the commission of homicide, aggravated assault, and armed robbery, and accidental injury and death.”
Although the recited purposes of the ordinance would appear to be laudable and supportive of the exercise of the police power to achieve these ends, the minutes of the meeting of the board of trustees of the village at which the ordinance was adopted do not reflect any discussion of these purposes, or that the ordinance was adopted to achieve them. There was no discussion as to how many, if any, deaths, injuries or crimes involving handguns had been committed in Morton Grove. In this litigation, at the trial level, an affidavit of the chief of police was presented that showed that over a 24-year period there had been a total of 155 incidents of handgun misuse in the village, or an average of about six incidents a year. The statistics presented reveal that the incidents had declined since the late 1970’s. The statistics compiled by the chief of police did not disclose the nature of the handgun misuse, or whether the misuse involved a crime, death or injury. Also, the statistics did not disclose if the misuses were committed by residents of Morton Grove. Meager as these statistics are, they reveal that the misuse of handguns is a very minimal problem in Morton Grove.
The purposes of the ordinance cited in its preamble were therefore pure and simple litany, inserted in the ordinance for window dressing and to help withstand constitutional challenge. Since no discussion was had at the meeting of the village board concerning handgun misuse in the village, and since these statistics concerning such misuse were not compiled until after the ordinance was adopted and were not presented to the village board, it is apparent that some other purpose motivated the adoption of the ordinance. This purpose is disclosed by the minutes of the meeting at which the ordinance was adopted by a vote of four to two. Before voting, the trustees expressed their opinions on the ordinance. As recorded in the minutes, those voting in favor of the ordinance stated:
“Trustee Cashman — hoped the legislation would work as a catalyst for other communities to adopt similar handgun restrictions.”
“Trustee Greenberg — stated that he was elected to be a leader and if they do not like what I do, they have the right to vote me out.”
“Trustee Sneider — hoped that the Ordinance would send a message to other legislative bodies across the country.”
“Trustee Youstra — said he was an owner of hand guns but felt that the Supreme Court had ducked the issue long enough and felt it should be up to them to decide one way or the other.”
The majority opinion acknowledges that these statements reflect the possibility that the ordinance was passed for the sole purpose of publicizing a political viewpoint. I am in accord with that conclusion. I am shocked, however, that the majority opinion finds no significance in this possibility. If the police power can be exercised for the sole purpose of publicizing a political viewpoint, then I feel that our constitutionally guaranteed rights are in serious jeopardy.
As stated in the language quoted above from Nahser, it must be apparent that the legislation tends in some degree toward the prevention of offenses, or the preservation of public health, morals, safety or welfare; that such an end is the one actually intended; and that there is some connection between the ordinance and such purpose. If it is manifest that the legislation has no such object, but under the guise of a police regulation is an invasion of the property rights of the individual, it is the duty of the court to declare it void. Nahser v. City of Chicago (1916), 271 Ill. 288, 292.
We are not compelled to blindly follow the incantations of a legislative body inserted in legislative enactments to lend an aura of validity to the act. In Commercial National Bank v. City of Chicago (1982), 89 Ill. 2d 45, this court had before it the Chicago service-tax ordinance, which recited that the tax was imposed upon the purchaser of services. It was asserted by the city that, because of this provision, the tax was not an occupational tax which, under the Constitution, the city could not impose without legislative authorization. We stated that this court must determine whether a simple declaration that a tax is imposed upon the purchaser of services is sufficient to avoid the restrictions imposed by the Constitution against the imposition of a tax on occupations. (Commercial National Bank v. City of Chicago (1982), 89 Ill. 2d 45, 65.) We noted in that case that this court had stated in Winter v. Barrett (1933), 352 Ill. 441, 459, that the legislature has no power to declare that not to be a fact which everyone knows is a fact. (Commercial National Bank v. City of Chicago (1982), 89 Ill. 2d 45, 65.) In Commercial National Bank, we further stated:
“The mere recitation in the ordinance that the tax is upon purchasers of services does not eliminate the evils the delegates to the convention sought to prevent.
Obviously, the city of Chicago was aware of the ‘legal incidence’ language previously used by this court and attempted to tailor its ordinance to incorporate a sufficient amount of such language — ‘magic words’ — to transform an occupation tax into a tax upon the purchaser.” Commercial National Bank v. City of Chicago (1982), 89 Ill. 2d 45, 67.
This court further stated:
“If we permit this restriction to be nullified by simply inserting a few words in an ordinance, which ostensibly imposes the legal incidence of a tax upon the purchaser while the ordinance as a whole places responsibilities and penalties for the tax upon the seller of services, we will have effectively repealed, or deleted from our constitution, the requirement that authorization by the General Assembly must be given before a home rule unit may impose taxes upon occupations.” Commercial National Bank v. City of Chicago (1982), 89 Ill. 2d 45, 68.
The same rationale must apply to this case. If we permit the constitutionally given right to arms to be nullified by simply inserting a few “magic words” in an ordinance which gives the ordinance an appearance of being a valid exercise of the police power, when it is in fact only the assertion of a political philosophy and a publicizing of that viewpoint, then we have in effect eliminated this right that has been granted by the Constitution.
This court, on another occasion, has examined the impingement of the police power on constitutional rights of individuals and found the basis of the ordinance lacking. In City of Chicago v. Wilson (1978), 75 Ill. 2d 525, this court considered the validity of an ordinance which made it an offense for any person to appear in a public place in a dress not belonging to his or her sex with intent to conceal his or her sex. The two defendants were male and were arrested after they emerged from a restaurant dressed as females. The defendants testified at trial that they were transsexuals and challenged the ordinance as denying them their constitutional rights. This court held the ordinance unconstitutional, stating:
“Even though one’s choice of appearance is not considered a ‘fundamental’ right [citation], the State is not relieved from showing some justification for its intrusion. *** It is, therefore, incumbent upon the court to analyze both the circumstances under which the right is asserted and the reasons which the State offers for its intrusion.
In this court, the city has asserted four reasons for the total ban against cross-dressing in public: (1) to protect citizens from being mislead or defrauded; (2) to aid in the description and detection of criminals; (3) to prevent crimes in washrooms; (4) to prevent inherently antisocial conduct which is contrary to the accepted norms of our society. The record, however, contains no evidence to support these reasons.
If we assume that the ordinance is, in part, directed toward curbing criminal activity, the city has failed to demonstrate any justification for infringing upon the defendants’ choice of public dress under the circumstances of this case.” City of Chicago v. Wilson (1978), 75 Ill. 2d 525, 532-33.
This court further stated in conclusion:
“Inasmuch as the city has offered no evidence to substantiate its reasons for infringing on the defendants’ choice of dress under the circumstances of this case, we do not find the ordinance invalid on its face; however, we do find that section 192 — 8 as applied to the defendants is an unconstitutional infringement of their liberty interest.” City of Chicago v. Wilson (1978), 75 Ill. 2d 525, 534.
Thus, it is not sufficient when considering constitutional rights that there be a bare assertion or recital of a proper purpose for the exercise of the police power. As held in City of Chicago v. Wilson, there must be some valid existing reason for the intrusion. In summary, it is my position that although the ordinance recites an accepted purpose for the exercise of the police power, we must not accept such a recitation without question. In looking behind the ordinance under consideration, the village has not shown a need or justification for the infringement on the constitutional right to arms. The sole purpose behind the ordinance was to assert and publicize a particular political belief, “to send a message to other legislative bodies across the country.” Such a purpose is not a sufficient reason for infringing on a constitutional right by the exercise of the police power. I therefore dissent.
UNDERWOOD and MORAN, JJ., join in this dissent.