also dissenting:
For more than a decade, the bill of rights to the Illinois Constitution has included a provision on the right to keep and bear arms (Ill. Const. 1970, art. I, sec. 22). I agree with the majority opinion that the language of section 22 of article I indicates that the right to keep and bear arms is a qualified, not an absolute, right. Nevertheless, I disagree with the conclusion that under section 22 municipalities may enact flat bans on the possession of ordinary handguns. Under the opinion announced today, so long as municipalities allow residents to possess “some form of weapon suitable for self-defense or recreation” municipalities may ban all other weapons. (103 Ill. 2d at 499-500.) The majority’s strained reading of section 22 defies logic and runs counter to the history surrounding the enactment of the right-to-bear-arms guarantee.
To the contrary, section 22 prohibits a flat ban on those types of firearms that “law-abiding citizens commonly employ for purposes of recreation or the protection of person and property,” including ordinary handguns and long guns. Report of the Bill of Rights Committee on the Preamble and the Bill of Rights (Committee Report), 6 Record of Proceedings, Sixth Illinois Constitutional Convention (Proceedings) 87.
This court has long adhered to the principle that a constitutional provision must be interpreted in accordance with the intent and understanding of the electorate who ratified the instrument. (People ex rel. Cosentino v. County of Adams (1980), 82 Ill. 2d 565, 569; People ex rel. Keenan v. McGuane (1958), 13 Ill. 2d 520, 527.) In Client Follow-Up Co. v. Hynes (1979), 75 Ill. 2d 208, 222, we stated that “[a]lthough the constitutional debates may often be helpful in understanding the meaning of doubtful constitutional provisions, the true inquiry concerns the understanding of its provisions by the voters who, by their vote, have given life to the product of the convention.”
Today’s opinion places considerable reliance on the comments of certain delegates to the constitutional convention to justify the conclusion that section 22 does not prohibit municipalities from enacting a flat ban on the possession of ordinary handguns. Although this court on occasion has consulted such debates when the meaning of the constitutional provision was in doubt, it has done so only when it appeared that the delegates reached a consensus as to the meaning of the provision. (Client Follow-Up Co. v. Hynes (1979), 75 Ill. 2d 208, 221.) Indeed, the court has approached such debates cautiously, since “[i]t is possible to lift from the constitutional debates on almost any provision statements by a delegate or a few delegates which will support a particular proposition; however, such a discussion by a few does not establish the intent or understanding of the convention.” 75 Ill. 2d 208, 221; see also People ex rel. Cosentino v. County of Adams (1980), 82 Ill. 2d 565, 569.
After considering the debates on section 22, I am of the opinion that, at most, the debates reflect a lack of consensus as to the meaning of section 22. The debates illustrate that the issue of whether Illinois’ citizens should have the right to bear arms was a highly controversial and emotional issue. (See, e.g., 3 Proceedings 1686 (statement of Delegate A. Lennon); 3 Proceedings 1718 (statement of Delegate Foster).) Some delegates, as the majority opinion points out, believed that, by including the clause “subject only to the police power ***” in section 22, the legislature and municipalities could prohibit the possession of handguns. (3 Proceedings 1687 (statement of Delegate Foster).) Other delegates apparently attributed different meanings to section 22. (See 3 Proceedings 1700 (statement of Delegate Weisberg); 3 Proceedings 1707 (statement of Delegate Hutmacher); 3 Proceedings 1708 (statement of Delegate Friedrich); 3 Proceedings 1719 (statement of Delegate Mullen).) Little more than a handful of the 116 delegates expressed their opinion during the debates concerning the meaning of section 22. Most of the comments concerned the wisdom of gun-control laws. Those delegates who did express an opinion as to the meaning of section 22 often contradicted themselves. For example, Delegate Leonard Foster, a member of the convention’s Committee on the Bill of Rights, noted that the legislature, under section 22, could “prohibit some classes of firearms, such as war weapons, handguns, or some other category.” (3 Proceedings 1687.) However, Delegate Foster later stated that “[t]he majority does believe that those law-abiding citizens in this state who need and want to have certain types of firearms in their possession are entitled to have that as a constitutional right.” (Emphasis added.) (3 Proceedings 1718.) In the same speech, Delegate Foster commented that, under section 22, “the legislature might have the authority to forbid all firearms whatsoever in Cook County.” (Emphasis added.) (3 Proceedings 1718.) The contradictory comments were perhaps attributable to the fact that committee members were attempting to sell section 22 to delegates with diametrically opposed viewpoints on the subject of gun control. See 3 Proceedings 1707 (statement of Delegate Hutmacher).
The lack of consensus as to the meaning of section 22 was not lost on a number of delegates. Delegate William Fay, during the course of the debates, noted that “the fact that we have just seen the last two or three speakers here unite in support of this measure for different reasons indicates how this proposal will mean different things to different people.” (3 Proceedings 1710.) Delegate Jeffrey Ladd commented that it “seems we got people together on this bill for different reasons, and maybe we ought to know which side is really going to prevail.” (3 Proceedings 1714.) Delegate Jeanette Mullen stated, “Seldom have I heard such contradictory argument as has been presented today by the supporters of the majority [committee] report.” (3 Proceedings 1719; see also 3 Proceedings 1713 (statement of Delegate Conner).) I feel the court’s reliance, in this instance, on the constitutional debates is misplaced.
On the other hand, the report of the convention’s Committee on the Bill of Rights left the understanding that municipalities would be prohibited from enacting total bans on the possession of ordinary handguns. Committee members drafted the proposal which eventually became section 22. The committee report at the time that the 1970 Constitution was ratified stated:
“By referring to ‘the individual citizen’ and to the right to ‘keep’ as well as to ‘bear’ arms, the proposed new provision guarantees an individual right rather than a collective right and seeks to assure that the ‘arms’ involved are not limited by the armaments or needs of the state militia or other military body. The substance of the right is that a citizen has the right to possess and make reasonable use of arms that law-abiding persons commonly employ for purposes of recreation or the protection of person and property.” (6 Proceedings 87.)
In defining those “arms that law-abiding persons commonly employ,” the committee report referred to People v. Brown (1931), 253 Mich. 537, 542, 235 N.W. 245, 247, and State v. Duke (1875), 42 Tex. 455, 458. Both of these cases clearly show that handguns were intended by the committee to be included within the class of firearms protected by section 22.
The committee report also stated:
“Laws that attempted to ban all possession or use of such arms [handguns], or laws that subjected possession or use of such arms to regulation or taxes so onerous that all possession or use was effectively banned, would be invalid.” (6 Proceedings 87.)
The above-quoted language, I submit, gave the understanding that section 22 prohibits municipalities from enacting total bans on the possession of handguns. This conclusion is further bolstered by the cases referred to in the committee report in support of the proposition that a ban on “all possession or use of such arms” would be unconstitutional under section 22. All of these cases involved attempts to ban, directly or indirectly, the possession of handguns. In each of these cases cited by the committee report, the courts held that the governmental body involved exceeded the police powers, and, thus, that the law violated their respective State constitutional provisions on the right to keep and bear arms. (See State v. Kerner (1921), 181 N.C. 574, 107 S.E. 222; People v. Zerillo (1922), 219 Mich. 635, 189 N.W. 927; In re Brickey (1902), 8 Idaho 597, 70 P. 609.) Nowhere did the committee report indicate that a total ban on handguns would be permissible. The list of permissible regulations contained in the committee reports, along with appropriate case citations, included the prohibition of “certain deadly weapons not commonly and peacefully used by individuals.” (Emphasis added.) (Committee Report, 6 Proceedings 89.) (See, e.g., Morrison v. State (1960), 170 Tex. Crim. 218, 339 S.W.2d 529 (machine gun); People v. Brown (1931), 253 Mich. 537, 235 N.W. 245 (blackjack).) The committee report also stated that certain individuals, such as minors, incompetents and convicted felons, could be prohibited from possessing firearms. (Committee Report, 6 Proceedings 89.) Finally, the report indicated that gun licensing and permit laws, as well as taxes on firearms, would continue to be valid under section 22. (See, e.g., Biffer v. City of Chicago (1917), 278 Ill. 562 (gun-permit law); Caswell & Smith v. State (Tex. Civ. App. 1912), 148 S.W. 1159 (tax on sale of pistols).) None of the regulations cited by the committee involved the total ban on the class of arms that “law-abiding persons commonly employ.” Indeed, the report only gave the impression that the committee rejected such a reading of section 22.
Moreover, the Committee on the Bill of Rights and convention delegates specifically declined to adopt proposals which would have allowed the prohibition of ordinary handguns. The committee rejected a proposed amendment that would have added the phrase “except handguns” following the word “arms” to the text of the draft which became section 22. (Minutes of the Committee on the Bill of Rights, March 12, 1970.) Similarly, convention delegates rejected Member Proposal No. 131, which would have prohibited handguns (7 Proceedings 2901), and Member Proposal No. 220, which would have permitted the General Assembly to ban the possession of any firearm (7 Proceedings 2936). If committee members or convention delegates had desired to give municipalities such wide-ranging power, they would not have rejected every proposal authorizing the right to prohibit handguns.
In my opinion, municipalities cannot, consistent with section 22, enact flat bans on the possession of handguns or any other firearm which is commonly used by law-abiding citizens for recreation or protection of person or property. I would therefore hold that Morton Grove’s ordinance banning the possession of handguns is unconstitutional.
In addition, I strongly disagree with the majority’s conclusion that Morton Grove has not exceeded its home rule powers in enacting the handgun ban. Article VII, section 6(a), of our constitution provides that a home rule municipality may exercise any power “pertaining to its government and affairs.” (Ill. Const. 1970, art. VII, sec. 6(a).) This court has stressed that “ ‘the powers of home rule units relate to their own problems, not those of the State or nation.’ ” Ampersand, Inc. v. Finley (1975), 61 Ill. 2d 537, 540.
In City of Des Plaines v. Chicago & North Western Ry. Co. (1976), 65 Ill. 2d 1, the Chicago & North Western Railway Company was found guilty on several counts of violating Des Plaines’ antinoise ordinance. This court reversed the convictions, holding that Des Plaines had exceeded its power under article VII, section 6(a), in enacting the ordinance. The court held that noise pollution was a State and not a local concern because noise-pollution problems cannot be confined to the boundaries of one municipality Local control of noise pollution, as the court explained, could result in the imposition of conflicting and counterproductive standards on persons passing through various neighboring municipalities. 65 Ill. 2d 1, 5.
The problems associated with the use of handguns and other firearms are similarly a subject for State, not local, regulation. Like municipal noise ordinances, municipal handgun ordinances will be conflicting and counterproductive. Municipalities may, consistent with today’s opinion, ban the possession of any weapon so long as residents are allowed to possess one type of weapon. Thus, Morton Grove may ban handguns and a neighboring municipality may ban rifles, shotguns or both. Another neighboring community may decide to require persons to own and possess guns. Indeed, two Illinois municipalities have enacted ordinances purporting to require handgun ownership. (Goreville, Ill., Ordinance 82 — 2 (Dec. 7, 1982); Pittsburg, Ill., Ordinance 83 — 3 (June 6, 1983).) As plaintiffs correctly point out, today’s opinion will create a “crazy quilt of conflicting and unenforceable home rule ordinances.” Quilici v. Village of Morton Grove (7th Cir. 1982), 695 F.2d 261, 276 (Coffey, J., dissenting), cert. denied (1983), 464 U.S. 863, 78 L. Ed. 2d 170, 104 S. Ct. 194.
The majority opinion attempts to justify its conclusion that the Morton Grove ordinance is properly local by stating that the ordinance “does [not] involve regulation of conduct outside the village of Morton Grove ***.” (Slip op. at 12.) Although the ordinance does not purport to regulate conduct outside Morton Grove, the ordinance will affect nonresidents as well as influence conduct outside the village boundaries. Nonresidents are required by the ordinance to make their handguns “permanently inoperable” before transporting their guns through Morton Grove. (Morton Grove, Ill., Ordinance 81 — 11 (June 8, 1981).) The ordinance has the practical effect of forcing nonresidents to avoid Morton Grove if they wish to carry their firearms to a neighboring community where handguns are permitted. Secondly, by banning the possession of handguns within its boundaries, Morton Grove has presumably increased the number of handguns that are present in adjacent communities, since the ordinance does not prohibit its residents from storing, selling, or using their handguns outside the village.
Moreover, today’s decision fails to adequately consider the potential problems that could result from inconsistent local gun laws. Inconsistent local gun laws could make it difficult for gun owners to lawfully use their firearms, since gun owners must often travel from one community to another in order to use their firearms lawfully. Those gun owners wishing to use their firearms for hunting, target shooting or other lawful recreational activity could be subject to a wide range of criminal penalties merely because they unknowingly violated one or more local gun-control laws. Furthermore, under the majority’s reasoning, there is nothing to prohibit municipalities from enacting gun-control laws that are more permissive than State gun-control laws. If so, these gun-control ordinances would undoubtedly have an effect on nearby communities’ law-enforcement efforts.
The issue of whether an Illinois citizen may or may not possess a handgun has never,- until today, been thought to be a matter for local governments. The Morton Grove ordinance is the first of its kind. Instead, handguns and other firearms have been subject to extensive regulation by our State, government. The Illinois General Assembly enacted the Illinois deadly-weapons statute (Ill. Rev. Stat. 1981, ch. 38, par. 24 — 1 et seq.) and the Firearms and Ammunition Act (Ill. Rev. Stat. 1981, ch. 38, par. 83 — 1 et seq.). The deadly-weapons statute, in particular, is a comprehensive statute which prescribes what types of firearms that may be privately owned, who may own and use such firearms, and where, when and how these firearms may be used. In enacting the deadly-weapons statute, the General Assembly was mindful of the fact that effective gun control requires consistent, orderly and comprehensive legislation. The deadly-weapons statute was adopted with the purpose of creating “one comprehensive, integrated statute, dealing in an orderly manner with deadly weapons,” so that State gun-control laws are “consistent with one another.” (Ill. Ann. Stat., ch. 38, par. 24 — 1, Committee Comments, at 83 — 84 (Smith-Hurd 1977).) The deadly-weapons statute, as the court points out, makes it unlawful to possess certain kinds of weapons, including handguns, on one’s person “except when on his land or in his own abode or fixed place of business.” (Ill. Rev. Stat. 1981, ch. 38, pars. 24 — 1(4), (10).) The statute also provides for other exemptions. The exemptions were included in the statute because the General Assembly specifically determined that such uses are “justified by the office or position of the user or by the activity for which they are used.” Ill. Ann. Stat., ch. 38, par. 24 — 1, Committee Comments, at 84 (Smith-Hurd 1977).
Although the existence of a State regulatory scheme on a given subject is not determinative of whether the subject is properly State or local, it is considered evidence that the subject is recognized as a matter of statewide concern. (City of Des Plaines v. Chicago & North Western Ry. Co. (1976), 65 Ill. 2d 1, 7 (State environmental act is evidence that noise pollution is statewide concern); cf., Hutchcraft Van Service, Inc. v. City of Urbana (1982), 104 Ill. App. 3d 817.) Moreover, in Ampersand, Inc. v. Finley (1975), 61 Ill. 2d 537, the court stated that “ ‘[l]ong standing state regulation’ ” in a given area could preclude the “ ‘subject from being considered a matter pertaining to home-rule government and affairs.’ ” 61 Ill. 2d 537, 541, quoting Report of the Local Government Committee, 7 Proceedings 1652.
In the present case, the State regulation of firearm possession has been long standing, comprehensive and, for the most part, exclusive. Until now, home rule municipalities have not attempted to enact ordinances of the type adopted by Morton Grove. Until now, the issue of whether or not a person may possess a firearm has been resolved by looking to a State regulatory scheme intended by the General Assembly to deal with firearms in an orderly and consistent manner. The Morton Grove ordinance directly conflicts with the express policy of the deadly-weapons statute. Under the Morton Grove ordinance, persons are prohibited from possessing handguns in their home, on their land, or in their “fixed place of business” despite the express authorization for such uses by the General Assembly. The Morton Grove ordinance, in effect, is an attempt by a municipality to preempt clearly defined State policy in an area where the State, not municipalities, has authority to act.
The majority’s conclusion that municipalities may circumvent clearly expressed State policy except in those limited instances when the General Assembly has expressly preempted municipal action is incorrect. To the contrary, this court has invalidated municipal or county actions when such actions affect areas which are “generally recognized as falling within the competence of State rather than local authorities” (7 Proceedings 1621-22), particularly when the municipal actions conflict with existing State law. See, e.g., Metropolitan Sanitary District v. City of Des Plaines (1976), 63 Ill. 2d 256; City of Carbondale v. Yehling (1983), 96 Ill. 2d 495; Paper Supply Co. v. City of Chicago (1974), 57 Ill. 2d 553; City of Des Plaines v. Chicago & North Western Ry. Co. (1976), 65 Ill. 2d 1; Ampersand, Inc. v. Finley (1975), 61 Ill. 2d 537.
Thus, because the possession of firearms has traditionally been regulated by State law, and because local firearms laws like the one adopted by Morton Grove would necessarily affect persons beyond municipal boundaries, confuse law-abiding citizens and are counterproductive, I am of the opinion that this subject is of State and not local concern. I would therefore hold that Morton Grove has exceeded its home rule authority under article VII, section 6(a), of our constitution in enacting this ordinance.
For the above-stated reasons, I must respectfully dissent.
RYAN, C.J., and UNDERWOOD, J., join in this dissent.