The U.S. Supreme Court is ending its near seventy-year silence on the Second Amendment. The Court’s interpretation of the right to keep and bear arms will impact Illinois more than any other state. A series of Illinois municipalities ban the ownership of handguns. A robust reading of the Second Amendment will put these ordinances in peril.
Parker v. District of Columbia made history as the first instance a federal appellate court found a law unconstitutional on Second Amendment grounds.1 In Parker, the United States Court of Appeals for the D.C. Circuit struck Washington, D.C.’s ordinance banning handguns not registered prior to 1976, barring the movement of registered handguns within one’s home without a license, and mandating all registered firearms be kept unloaded and locked. The Second Amendment provides: "A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."2 Not interpreting the Second Amendment since 1939, the United States Supreme Court granted certiorari and will hear the case this spring. In determining the constitutionality of the ordinance, the Supreme Court will resolve whether the Second Amendment guarantees an individual’s right to own a firearm or merely protects a state’s right to maintain a militia.
The spectacle of the Supreme Court breaking its near seventy-year silence on the Second Amendment is generating significant attention. However, the outcome will be particularly salient in Illinois. Numerous Illinois municipalities, including Chicago, forbid inhabitants from owning a handgun. As the Supreme Court debates the constitutionality of Washington, D.C.’s restrictions, the fate of Illinois municipal gun bans hangs in the balance. If the Court interprets the Second Amendment as granting an individual’s right to keep and bear arms, the D.C. ordinance will fall. This, in turn, will render the ordinances in Illinois ripe for challenge. This reality is not lost on either side of the debate. Robert Levy, co-counsel for the Parker plaintiffs, stated that a favorable Supreme Court ruling means "Chicago would be the logical follow-up."3 Conversely, Thomas Mannard, executive director of the Illinois Council Against Handgun Violence laments, "[t]here is reason to be concerned at this point." Illinois is home to the only handgun bans outside of Washington, D.C., ensuring the state will be the next battleground in the gun control war. This article examines the D.C. Circuit’s decision in Parker v. District of Columbia, provides an overview of Illinois firearm restrictions, and concludes that if the Supreme Court strikes Washington D.C.’s ordinance, Illinois municipal gun bans will not survive. Challenging the Washington, D.C. Gun Ordinance. In 1976, the Washington, D.C. Council passed a bill restricting residents from possessing handguns.4 A proliferation of gun violence prompted the D.C. Council to enact the most extensive regulatory scheme in the nation.5 The ordinance requires all firearms to be registered. However, the District prohibits registration certificates for handguns not registered before September 24, 1976.6
Licensed firearms are subject to additional restrictions. Each firearm must be unloaded and disassembled or bound by a trigger lock.7 The District further prohibits moving lawfully owned handguns within one’s own home without a permit.8 Violations of these provisions are punishable by a $1,000 fine or one year’s imprisonment.9 A second offense carries a $5,000 fine or five years’ imprisonment.10
These regulations remained virtually unaltered when they were challenged in 2003. Plaintiff Dick Heller carried a handgun while on duty as a District of Columbia Special Police Officer guarding the Federal Judicial Center. But when he applied for a registration certificate to own a handgun, the city denied his request. Heller and five other individuals filed a complaint alleging the District of Columbia deprived them of the right to possess a personal firearm. The plaintiffs averred that the city’s enforcement of laws banning the "possession of handguns and functional firearms within the home, forbidding otherwise lawful self-defense usage of arms, and forbidding the movement of a handgun on an individual’s property," violated their Second Amendment rights. The District of Columbia filed a motion to dismiss. The United States District Court for the District of Columbia held there was no individual right to keep and bear arms separate from service in the militia and granted the motion to dismiss.11
A divided D.C. Circuit Court of Appeals struck down the regulations as incompatible with the Second Amendment.12
The court found a paucity of definitive guidance on the right to keep and bear arms. Not confined by the rigors of precedent, the court determined the right deserved the robust protection afforded other civil liberties. Using the deceptively simple but doctrinally sound reading that "the people" used in the First, Fourth, Ninth, and Tenth Amendments referred to individual rights, the court discerned no reason to distinguish the Second Amendment. For support, the D.C. Circuit cited the 1990 Supreme Court decision, United States v. Verdugo-Urquidez.13 In Verdugo-Urquidez, the Court noted "the people" protected by the First, Second, and Fourth Amendments "refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community."14 This language convinced the D.C. Circuit that the Second Amendment guaranteed individual protections analogous to other amendments.15
The District of Columbia argued the Second Amendment did not bestow an individual right, but rather a collective right held by the states. This reading paralleled the rationale of virtually every other federal circuit that had interpreted the Second Amendment. The D.C. Circuit was unpersuaded, asserting "the plain meaning of ‘keep’ strikes a mortal blow to the collective right theory."16 The D.C. Circuit ultimately read the Second Amendment as standing for two propositions.17 First, the right to keep and bear arms has an individual justification encompassing one’s right to keep arms for self-defense and hunting. Second, it possesses a civic basis entailing militia responsibilities. Through this prism, the D.C. Circuit examined the challenged provisions.
The court’s application of the Second Amendment to the District’s ordinance was anticlimactic. In finding the three provisions unconstitutional, the court disposed of each with a single paragraph. The ban on possessing a handgun was unconstitutional because handguns fell under the rubric of "arms" as referenced in the Second Amendment.18 Rejecting the District’s argument that handguns fostered criminality, the court noted that handguns were the preferred firearm "for protection of one’s home and family."19 The court was similarly succinct in discarding the ban on moving registered handguns within one’s home, stating "[s]uch a restriction would negate the lawful use upon which the [Second Amendment] was premised-i.e., self-defense."20 The court again invoked self-defense to strike down the requirement that a firearm be kept unloaded and disassembled or locked. Because the provision "amounts to a complete prohibition" on using a gun for self-defense, it violated the Second Amendment.21
The decision provoked a dissenting opinion by Judge Henderson. She disputed the propriety of entertaining the appellants’ challenge, calling the Second Amendment’s meaning in the District of Columbia "purely academic."22 The dissent refused to engage the majority on the merits of its Second Amendment reading and concluded the Second Amendment did not apply in Washington, D.C. because the District was not a state.
Without equivocation, the D.C. Circuit held the Second Amendment protects an individual right to keep and bear arms. This unabashed embrace of the individual right reading contravenes decades of Second Amendment jurisprudence, including Seventh Circuit and Illinois Supreme Court case law. A similar reading by the United States Supreme Court could render Illinois state and federal precedent nugatory.
Regulating Firearms In Illinois. The Illinois Constitution permits an individual right to keep and bear arms. Section 22 of the Constitution provides: "Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed."23 The inherent conflict is immediately apparent, as the provision articulates a police power and an individual right. In spite of, or because of, this tension, Illinois bears the distinction of being the least hospitable state for gun rights. The disparity between Illinois and the rest of the country is embodied by the state’s lack of concealed carry privileges and the multiple municipalities banning handgun possession in one’s abode.
As their namesake suggests, concealed carry laws permit individuals to carry loaded firearms in public. Forty-eight States maintain concealed carry. Of those forty-eight States, forty mandate that officials may not arbitrarily deny a concealed-carry application. This system is described as "shall-issue."24 The other eight States have "may issue" processes in which licenses are granted only upon the showing of a compelling need.25 Only Wisconsin and Illinois, along with the District of Columbia, do not permit concealed carry.26 Illinois’ unique stature is not for want of trying. Governor Jim Edgar vetoed legislation that would have authorized concealed carry in 1993.
Illinois’ lack of concealed carry privileges has enabled municipal handgun bans to endure. Additionally, there is no state preemption of firearm laws, engendering an environment for local restrictions. In 1981, Morton Grove prohibited the ownership of handguns, mandating that "[n]o person shall possess, in the Village . . . [a]ny handgun, unless the same has been rendered permanently inoperative."27 Morton Grove’s ban marked the first time a jurisdiction instituted a complete ban on handguns.
Morton Grove’s groundbreaking ban attracted national attention. The ordinance was immediately challenged in state and federal court. The United States District Court for the Northern District of Illinois upheld the ordinance because it did not outlaw all firearms.28 The United States Court of Appeals for the Seventh Circuit affirmed.29 The appellate court resolved the conflict of the Illinois constitutional provision by scrutinizing its commentary. The constitutional debates revealed the two opposing principles of the provision gave the legislature the ability to ban types of firearms while still respecting the basic right to possess a firearm. The Seventh Circuit emphasized the delegates’ explicit approval of banning classes of firearms. Supplementing this fact was the expansive reading traditionally given to a state’s (or municipality’s) police power. Because the right to keep and bear arms was subject to the deferential police power, the court concluded the Morton Grove ordinance was not constitutionally suspect.30
The Illinois Supreme Court reached the same conclusion in Kalodimos v. Village of Morton Grove.31 It affirmed the lower courts that had upheld the handgun ban as a valid exercise of police power. Similar to the Seventh Circuit, the Illinois Supreme Court relied heavily on the constitutional debates surrounding the firearm provision. Citing the comments of delegates approving the prohibition of some classes of firearms, the Court found the ordinance complied with the Illinois Constitution. The Kalodimos Court devoted negligible attention to the Second Amendment, summarily asserting, "[t]he right to arms guaranteed by the Federal Constitution has never been thought to be an individual right." The Court concluded the ban was a permissible exercise of Morton Grove’s home rule and police powers.The deference afforded the Morton Grove ordinance in state and federal court prompted other Illinois municipalities to follow suit. Remarkably, the restrictions would not be replicated outside of Illinois.32 Evanston banned handguns in 1982.33 Chicago Mayor Jane Byrne enacted a handgun registration freeze in 1982.34 The City of Chicago prohibits the registration and possession of handguns unless registered before March 30, 1982.35 Those handguns that are registered are subject to additional restrictions mandating they possess a trigger lock and "load indicator device that provides warning to potential users."36 Oak Park banned handgun ownership in 1984.37 In 1989, Wilmette and Winnetka instituted handgun bans.38 Highland Park prohibits handguns, unless the resident has obtained a permit from the police.39 The handgun bans native to Northern Illinois have survived due to the emphasis courts have placed on the police power element of the state constitutional provision.
The Aftermath of a Supreme Court Individual Right Interpretation. While Illinois case law on the Second Amendment is clear, an individual right interpretation from the Supreme Court would weaken this precedent. The ordinances of Chicago and its surrounding suburbs are a carbon copy of the Washington, D.C. ban, as they forbid their inhabitants from owning a handgun. The City of Chicago recognized the tenuous state of its ordinance if the District’s ban was held unconstitutional and filed an amicus brief asking the D.C. Circuit to renounce the individual right reading. Chicago’s contentions were not persuasive, and the D.C. Circuit’s ruling has undermined the legitimacy of Illinois municipal handgun bans. A Supreme Court decision affirming the D.C. Circuit would eradicate it.
Speculating how the Supreme Court will interpret the Second Amendment is a task fraught with peril. The Court has not entertained a Second Amendment challenge since its 1939 decision in United States v. Miller.40 In Miller, the Court held the Second Amendment encompassed the right to keep and bear those arms with a reasonable relationship to the preservation of a militia. The Court offered scant rationale for its reasoning, and both sides of the Second Amendment debate claim Miller as their own.
The Supreme Court’s review of the Washington, D.C. ordinance will not impact state constitutional firearm provisions. However, an individual right interpretation of the Second Amendment would renew challenges to the handgun bans in Illinois cities. The State of Illinois urged the Supreme Court to grant certiorari in Parker because adopting the D.C. Circuit’s logic threatens "all federal and state laws restricting access to firearms." Illinois has reason to be concerned, as it is the only state in the country with handgun bans.
The Supreme Court’s Second Amendment pronouncement could dismantle a fixture of numerous Illinois municipalities. Handgun bans have been in force for over twenty-five years and cities rely on them to combat crime. Chicago officials attribute the reduction in the city’s murder rate to its handgun ban. While the impact of handgun bans on crime is subject to debate, one thing is clear: if Washington, D.C.’s restrictions fall, the ordinances scattered throughout the Chicagoland area will not likely survive. The intrusive nature of a handgun ban is incompatible with an individual right reading. The police power provision of Illinois’ constitutional provision carries significant weight. However, it could not overcome a civil right enshrined in the Bill of Rights. Dictating the means of self-defense in one’s home infringes on the letter and spirit of an individual right to keep and bear arms. It is axiomatic that an individual right reading would protect, at the least, possessing a handgun in a home.
In sum, an individual right interpretation by the Supreme Court would not foreclose all state and municipal firearm regulations. However, banning handguns would be outside their purview. While the Second Amendment debate centers on the Supreme Court and Washington, D.C., the fallout of the Court’s interpretation will be felt directly in Illinois.
1 Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007). On appeal to the Supreme Court, the case became District of Columbia v. Heller because the D.C. Circuit found lead plaintiff Shelly Parker lacked standing.
2 U.S. Const. amend. II.
3 James Oliphant, D.C. Gun Case May Hit Chicago, Chicago Tribune, September 5, 2007.
4 Meg Smith, A History of Gun Control, Washington Post, March 11, 2007, at C04.
5 Rept. On Bill No. 1-164, Committee on the Judiciary and Criminal Law, April 21, 1976.
6 D.C. Code § 7-2502.02(a)(4) provides [a] registration certificate shall not be issued for a . . . (4) [p]istol not validly registered to the current registrant in the District prior to September 24, 1976. "Pistol means any firearm originally designed to be fired by use of a single hand." D.C. Code § 7-2501.01(12).
7 D.C. Code § 7-2507.02 states each registrant shall keep any firearm in his possession unloaded and disassembled or bound by a trigger lock or similar device unless such firearm is kept at his place of business, or while being used for lawful recreational purposes within the District of Columbia.
8 D.C. Code § 22-4504.
9 D.C. Code § 7-2507.06.
10 D.C. Code § 7-2507.06(2)(A).
11 Parker v. District of Columbia, 311 F. Supp. 2d 103, 109 (D.D.C. 2004).
12 Parker v. District of Columbia, 478 F.3d 370, 376 (D.C. Circ. 2007).
13 Parker v. District of Columbia, 478 F.3d at 381, citing United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).
14 Verdugo-Urquidez, 494 U.S. at 265.
15 Parker, 478 F.3d at 382.
16 Id. at 386.
17 Id. at 395.
18 Id. at 400.
19 Parker, 478 F.3d at 400.
20 Id. at 400.
21 Id. at 401.
23 Ill. Const. art. 1, § 22.
24 David McDowall et al., Easing Concealed Firearms Laws: Effects On Homicide In Three States. 86 J. Crim. L. & Criminology 193, 194-95 (1995).
25 Id. at 194-95.
27 Morton Grove, Ill., Code§ 81-11 (enacted June 8, 1981).
28 Quilici v. Village of Morton Grove, 532 F.Supp. 1169 (N.D. Ill. 1981)
29 Quilici v. Morton Grove, 695 F.2d 261 (7th Cir. 1982).
30 Id. at 266.
31 Kalodimos v. Village of Morton Grove, 103 Ill. 2d 483, 470 N.E.2d 266 (Ill. 1984).
32 San Francisco voters approved a ban on handgun possession in 2005, but a court struck the ban down because state law preempted the ordinance. Bob Eglko, San Francisco Judge invalidates Prop. H handgun ban, San Francisco Chronicle, June 13, 2006.
33 Evanston, Ill., Code § 9-8-2 (2005).
34 Mun. Code Chi. (Ill.) § 8-20-010 (2006).
35 Mun. Code Chi. (Ill.) § 8-20-040 (2006).
36 Mun. Code Chi. (Ill.) § 8-20-050 (2006).
37 Oak Park Village, Ill., Code § § 27-1-1, 27-1-2, 27-2-1 (1994).
38 Wilmette Ill. Code § 12-24(b) (2005); Winnetka Ill. Code § 9.12.020 (2006).
39 Highland Park Code § 134.003 (2006).
40 United States v. Miller, 307 U.S. 174 (1939).
Christopher Keleher graduated from Marquette University in 1999 and DePaul University School of Law, summa cum laude, in 2002. After law school, he clerked for the Honorable William J. Bauer of the United States Court of Appeals for the Seventh Circuit. During law school, Mr. Keleher served on the DePaul Law Review Board as an editor. He is currently an Associate attorney practicing law at the firm of Kubasiak, Fylstra, Thorpe & Rotunno.