Easterday v. Village of Deerfield

2020 IL App (2d) 190879

• Court: Appellate Court of Illinois
• Decided: December 7, 2020
• Docket: 2-19-0879
• Status: Published

Opinion

2020 IL App (2d) 190879 No. 2-19-0879 Opinion filed December 4, 2020 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

DANIEL D. EASTERDAY, ILLINOIS STATE ) Appeal from the Circuit Court RIFLE ASSOCIATION, and SECOND ) of Lake County. AMENDMENT FOUNDATION, INC., ) ) Plaintiffs-Appellees, ) ) v. ) No. 18-CH-427 ) THE VILLAGE OF DEERFIELD, ) Honorable ) Luis A. Berrones, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

GUNS SAVE LIFE, INC., and JOHN ) Appeal from the Circuit Court WILLIAM WOMBACHER III, ) of Lake County. ) Plaintiffs-Appellees, ) ) v. ) No. 18-CH-498 ) THE VILLAGE OF DEERFIELD and ) HARRIET ROSENTHAL, in Her Official ) Capacity as Mayor of the Village of Deerfield, ) Honorable ) Luis A. Berrones, Defendants-Appellants. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justice Hudson concurred in the judgment and opinion. Justice McLaren concurred in part and dissented in part, with opinion.

OPINION 2020 IL App (2d) 190879

¶1 The plaintiffs in these consolidated actions challenge the Village of Deerfield’s bans of

“assault weapons” and “large capacity magazines.” One set of plaintiffs—Daniel D. Easterday, the

Illinois State Rifle Association, and the Second Amendment Foundation, Inc. (collectively,

Easterday)—sued Deerfield. The other set of plaintiffs—Guns Save Life, Inc. and John William

Wombacher III (collectively, Guns Save Life)—sued both Deerfield and its mayor, Harriet

Rosenthal. For the sake of simplicity, we will refer to both defendants collectively as Deerfield.

The trial court granted summary judgment in favor of plaintiffs and permanently enjoined

Deerfield from enforcing its bans of assault weapons and large capacity magazines. Deerfield

appeals. For the following reasons, we affirm in part and reverse in part the trial court’s orders

granting summary judgment in favor of plaintiffs. We vacate the permanent injunctions in part and

remand the cause for further proceedings consistent with this opinion.

¶2 I. BACKGROUND

¶3 Deerfield is a home rule unit. Before 2013, it did not have an ordinance in place regulating

assault weapons or large capacity magazines.

¶4 Effective July 9, 2013, the Illinois legislature enacted the Firearm Concealed Carry Act

(Concealed Carry Act) (430 ILCS 66/1 et seq. (West 2018)) and amended section 13.1 of the

Firearm Owners Identification Card Act (FOID Card Act) (430 ILCS 65/13.1 (West 2018)).

Deerfield interpreted this legislation as providing a brief window for home rule units to regulate

assault weapons. Deerfield understood that if it failed to regulate such weapons by July 20, 2013,

it would forever lose its power to do so. Although Deerfield was not ready to impose a total ban

on assault weapons, it did not want to lose its regulatory authority on this matter. Deerfield believed

that if it timely regulated assault weapons, it could amend those regulations at any time and in any

manner it wished.

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¶5 Consistent with its interpretation of the relevant legislation, on July 1, 2013, Deerfield

enacted ordinance No. O-13-24 (the 2013 ordinance), which regulated the storage and

transportation of assault weapons within the village. Deerfield defined “assault weapon” by

reference to a list of both physical characteristics of firearms and specified models. See Deerfield

Municipal Code § 15-86 (added July 1, 2013). Deerfield defined “large capacity magazine” as

“any ammunition feeding device with the capacity to accept more than ten rounds, but shall

not be construed to include the following:

(1) A feeding device that has been permanently altered so that it cannot

accommodate more than ten rounds.

(2) A 22 caliber tube ammunition feeding device.

(3) A tubular magazine that is contained in a lever-action firearm.”

Deerfield Municipal Code § 15-86 (added July 1, 2013).

Deerfield specified certain requirements for the safe storage and transportation of assault weapons.

See Deerfield Municipal Code §§ 15-87, 15-88 (added July 1, 2013). Failure to comply with those

requirements would result in a fine between $250 and $1000. Deerfield Municipal Code § 15-89

(added July 1, 2013).

¶6 In 2018, following numerous highly publicized mass shootings across the country,

Deerfield decided to enact what amounted to a total civilian ban on assault weapons and large

capacity magazines. This was accomplished through two ordinances: Deerfield Ordinance No. O-

18-06 (eff. Apr. 2, 2018) and Deerfield Ordinance No. O-18-19 (eff. June 18, 2018) (collectively,

the 2018 ordinances). 1 The 2018 ordinances amended the sections of the municipal code that were

1 Early in this litigation, the trial court determined that, contrary to what Deerfield claimed,

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added by the 2013 ordinance. Changes to the text of the municipal code were reflected by striking

out language that was to be removed and underlining language to be added. Specifically, Deerfield

made it unlawful for persons other than military or law enforcement personnel to “possess, bear,

manufacture, sell, transfer, transport, store or keep any assault weapon or large capacity magazine

in the Village.” Deerfield Municipal Code § 15-87(a) (amended June 18, 2018). Deerfield

provided a 60-day grace period for persons in possession of assault weapons or large capacity

magazines to either (1) remove, sell, or transfer those items from the limits of the village, (2) render

the items permanently inoperable or otherwise modify them so that they no longer fell within the

definitions of prohibited items, or (3) surrender the items to the chief of police for disposal and

destruction. Deerfield Municipal Code §§ 15-90, 15-91 (added Apr. 2, 2018).

¶7 Easterday and Guns Save Life filed separate lawsuits challenging the validity of the 2018

ordinances. 2 The Easterday action was designated in the trial court as case No. 18-CH-427 and the

Guns Save Life action was designated as No. 18-CH-498. The trial court entered temporary

restraining orders in both cases prohibiting Deerfield from enforcing the bans. On July 27, 2018,

the court consolidated the two actions “for all future proceedings.”

ordinance No. O-18-06 did not ban large capacity magazines. In response to that ruling, Deerfield

enacted ordinance No. O-18-19, which explicitly banned large capacity magazines. 2 In their original complaints, Easterday and Guns Save Life challenged ordinance No. O-

18-06. When Deerfield subsequently enacted ordinance No. O-18-19, Easterday and Guns Save

Life amended their complaints to challenge that ordinance as well. In its amended complaint,

Easterday misidentified ordinance No. O-18-19 as ordinance No. O-18-24-3.

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¶8 In their respective amended complaints, Easterday and Guns Save Life alleged that the

bans imposed by the 2018 ordinances were preempted by section 13.1 of the FOID Card Act (430

ILCS 65/13.1 (West 2018)) and section 90 of the Concealed Carry Act (430 ILCS 66/90 (West

2018)). Easterday advanced this theory in a single count, whereas Guns Save Life advanced this

theory in two counts (counts I and III of its amended complaint). Guns Save Life further alleged

that the ordinances (1) were preempted by section 2.1 of the Wildlife Code (520 ILCS 5/2.1 (West

2018)) (counts II and IV of Guns Save Life’s amended complaint) and (2) amounted to improper

“takings” in violation of the Illinois Constitution (Ill. Const. 1970, art. I, § 15) (count V) and the

Eminent Domain Act (735 ILCS 30/90-5-20 (West 2018)) (count VI).

¶9 On March 22, 2019, in response to Easterday’s and Guns Save Life’s motions for summary

judgment, the trial court entered permanent injunctions in both cases enjoining Deerfield from

“enforcing any provision of [the 2018 ordinances] making it unlawful to keep, possess, bear,

manufacture, sell, transfer or transport assault weapons or large capacity magazines as defined in

these ordinances.” The court determined that the bans imposed by the 2018 ordinances were

preempted by section 13.1 of the FOID Card Act and section 90 of the Concealed Carry Act. The

court found, however, that genuine issues of material fact precluded summary judgment on Guns

Save Life’s claims that the bans amounted to improper “takings.” The court also rejected Guns

Save Life’s argument that the bans were preempted by the Wildlife Code. The effect of these

orders was to (1) grant summary judgment to Easterday as to the only claim that was at issue in its

amended complaint, (2) grant summary judgment to Guns Save Life as to counts I and III of its

amended complaint, and (3) deny Guns Save Life’s motion for summary judgment as to counts II,

IV, V, and VI of its amended complaint. Neither of the court’s orders entered on March 22, 2019,

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included language rendering the matters immediately appealable pursuant to Illinois Supreme

Court Rule 304(a) (eff. Mar. 8, 2016).

¶ 10 Deerfield attempted to appeal the permanent injunctions pursuant to Illinois Supreme Court

Rule 307(a)(1) (eff. Nov. 1, 2017). On June 12, 2019, we dismissed that appeal for lack of

jurisdiction, because (1) Rule 307(a)(1) does not apply to permanent injunctions, (2) no final

judgment was entered with respect to Guns Save Life’s amended complaint, as the trial court did

not resolve all claims, and (3) due to the lack of a complete record, we could not determine whether

a final and independently appealable judgment had been entered with respect to Easterday’s

amended complaint. See Easterday v. Village of Deerfield, 2019 IL App (2d) 190320-U, ¶ 43

(Easterday I).

¶ 11 On that last point, we explained:

“ ‘Illinois courts have recognized three distinct forms of consolidation: (1) where

several actions are pending involving the same subject matter, the court may stay

proceedings in all but one of the cases and determine whether the disposition of one action

may settle the others; (2) where several actions involve an inquiry into the same event in

its general aspects, the actions may be tied together, but with separate docket entries,

verdicts and judgment, the consolidation being limited to a joint trial; and (3) where several

actions are pending which might have been brought as a single action, the cases may be

merged into one action, thereby losing their individual identity, to be disposed of as one

suit.’ ” Easterday I, 2019 IL App (2d) 190320-U, ¶ 40 (quoting Busch v. Mison, 385 Ill.

App. 3d 620, 624 (2008)).

Because the trial court did not stay any proceedings, we ruled out the first form of consolidation.

Easterday I, 2019 IL App (2d) 190320-U, ¶ 40.

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¶ 12 We noted that the difference between the second and third forms of consolidation had

jurisdictional implications:

“Where the second form of consolidation applies, a final judgment entered in one of the

actions is immediately appealable without a Rule 304(a) finding. [Citation.] In fact, the

aggrieved party must immediately appeal the final order in that first action, as opposed to

waiting until the companion action is resolved. [Citations.] Where, however, the third form

of consolidation applies and the two actions merge into one, unless the trial court makes a

Rule 304(a) finding, the aggrieved party may not appeal until all claims have been

adjudicated. [Citations.] In considering which form of consolidation applies in a given case,

reviewing courts have looked to the reasons for consolidation proposed by the litigants in

their motions for consolidation. [Citations.] Other relevant considerations may include the

wording of the consolidation order [citation], whether the cases maintained separate docket

entries after consolidation, and whether the litigants were treated as parties in both cases.”

(Emphasis in original.) Easterday I, 2019 IL App (2d) 190320-U, ¶ 41.

¶ 13 Given that Deerfield erroneously pursued its appeal under Rule 307(a)—which

contemplates a more limited supporting record as compared to appeals from final judgments—we

were unable “to determine which form of consolidation the trial court intended.” Easterday I, 2019

IL App (2d) 190320-U, ¶ 40. We concluded:

“Irrespective of whether the two actions merged, Deerfield’s *** appeal of the

permanent injunction that was entered in the Guns Save Life action is premature. If the two

actions merged, Deerfield *** may not appeal until the resolution of all claims in both

actions (or until the trial court enters a Rule 304(a) finding as to the permanent injunction

in the Guns Save Life action). If the two actions did not merge, Deerfield *** may not

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appeal until the resolution of all claims in the Guns Save Life action (or until the trial court

enters a Rule 304(a) finding as to the permanent injunction in the Guns Save Life action).

***.

With respect to Deerfield’s appeal of the permanent injunction that was entered in

the Easterday action, however, the appeal is premature only if the two actions merged. If

the two actions merged, Deerfield may not appeal until the resolution of all claims in both

actions (or until the trial court enters a Rule 304(a) finding as to the permanent injunction

in the Easterday action). (If the two actions did not merge, Deerfield’s failure to establish

that fact in the present appeal is fatal to any appeal in the Easterday action.)” Easterday I,

2019 IL App (2d) 190320-U, ¶¶ 44-45.

¶ 14 Following our decision in Easterday I, Deerfield filed a motion in the trial court requesting

Rule 304(a) findings with respect to the March 22, 2019, orders entered in both the Easterday

action and the Guns Save Life action. As noted above, on March 22, 2019, the court had resolved

the only claim that was at issue in the Easterday action. Concerning the Guns Save Life action,

Deerfield requested Rule 304(a) findings as to the court’s rulings only on counts I through IV of

the amended complaint (the preemption claims, not the takings claims). Deerfield also asked the

court to find that the July 27, 2018, consolidation order merged the two cases. In their responses

to Deerfield’s motion, both Easterday and Guns Save Life argued that the consolidation order had

not merged the actions.

¶ 15 On September 6, 2019, the court made Rule 304(a) findings as requested by Deerfield. The

court also clarified that it had intended to merge the two actions when it entered the consolidation

order. In explaining its decision, the court mentioned that certain limitations in the court clerk’s

case management system prevented multiple cases from being merged into one case number.

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¶ 16 On October 3, 2019, Deerfield filed a notice of appeal, specifying its intent to challenge

the permanent injunctions that the court entered on March 22, 2019, which were rendered

appealable by the September 6, 2019, order.

¶ 17 II. ANALYSIS

¶ 18 A. Jurisdiction

¶ 19 Easterday and Guns Save Life both contend that we lack jurisdiction.

¶ 20 Easterday argues as follows. There are numerous objective indications from the record that

suggest that the trial court’s July 27, 2018, consolidation order was for judicial convenience and

economy, not to merge the cases. Because Deerfield failed to appeal the final order entered in the

Easterday action within 30 days of March 22, 2019, we lack jurisdiction of the present appeal. 3

¶ 21 Guns Save Life presents a very similar jurisdictional argument. Guns Save Life emphasizes

the unfairness of the trial court’s after-the-fact explanation about its intent to merge the actions.

Like Easterday, Guns Save Life argues that the cases did not merge and Deerfield, therefore, failed

to timely appeal the final judgment in the Easterday action. According to Guns Save Life, because

its action involves a permanent injunction that is identical to the one that was entered in the

Easterday action, any appeal of the Guns Save Life action is moot and barred by collateral estoppel.

3 Deerfield did file a notice of appeal within 30 days of the March 22, 2019, orders. As

explained above, we dismissed Deerfield’s first appeal for lack of jurisdiction. Thus, it appears

that Easterday’s argument is that we lack jurisdiction of the present appeal because we had

jurisdiction in the prior appeal of a final judgment in the Easterday action, and Deerfield failed to

establish that fact at the time.

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¶ 22 Deerfield maintains that we have jurisdiction under Rule 304(a). According to Deerfield,

Easterday and Guns Save Life did not file cross-appeals, so they may not challenge the trial court’s

finding that the actions merged. Deerfield further notes that the trial court expressly stated that it

intended to merge the actions. Deerfield argues that this distinguishes the matter from the various

cases cited by Easterday and Guns Save Life, where the appellate court was tasked with

ascertaining trial judges’ intent from the circumstantial evidence in the record.

¶ 23 In our view, contrary to Deerfield’s suggestions, Easterday and Guns Save Life did not

need to file cross-appeals to raise this issue. It would have been inappropriate for them to file cross-

appeals because they obtained by summary judgment all the relief that they requested: a

declaratory judgment in their favor as to the invalidity of the bans imposed by the 2018 ordinances

and a permanent injunction barring Deerfield from enforcing those bans. See Material Service

Corp. v. Department of Revenue, 98 Ill. 2d 382, 387 (1983) (an appellee may challenge specific

findings made by the trial court without filing a cross-appeal, so long as “the judgment of the trial

court was not at least in part against the appellee”); Chicago Tribune v. College of Du Page, 2017

IL App (2d) 160274, ¶ 28 (although it was improper for the appellee to file a cross-appeal from an

order granting summary judgment in its favor, we noted that we could consider the appellee’s

contention that portions of the trial court’s reasoning were erroneous, because an appellee may

defend the judgment on any basis appearing in the record). Moreover, the issue that Easterday and

Guns Save Life raise implicates our jurisdiction, so it is not subject to waiver or forfeiture. See

Ruff v. Industrial Comm’n, 149 Ill. App. 3d 73, 78 (1986) (even without filing a cross-appeal, the

employer-appellee was permitted to argue that the appellant did not file a timely petition before

the Industrial Commission, as that argument raised questions regarding the jurisdiction of both the

Industrial Commission and the appellate court).

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¶ 24 We determine that there is no basis to overturn the trial court’s finding that the actions

merged. This case is unusual. In the more typical case, the appellate court must ascertain the trial

court’s intent by looking at circumstantial factors in the record, such as the ones that we outlined

in Easterday I. Here, however, there is no room to argue about the trial court’s intent because the

court expressly stated that it intended to merge the actions. We recognize that the court clarified

its intent only after the jurisdictional implications became apparent to both the court and the parties.

We also recognize that the court mentioned certain limitations in Lake County’s case management

system that the parties may have had no reason to know about when the consolidation order was

entered. Nevertheless, we find no prejudice to any party. Guns Save Life poses a hypothetical

scenario in which a trial judge leads the parties to believe that two matters merged, only to later

explain, once it was too late for the losing party to appeal, that the matters did not merge. Here,

however, there is no unfairness, as the litigants are being granted access to the appellate court

rather than foreclosed from such access.

¶ 25 Having no basis to disturb the trial court’s finding that the two actions merged, Easterday’s

and Guns Save Life’s jurisdictional challenges fail. Specifically, because the actions merged,

Deerfield did not miss its opportunity to appeal the March 22, 2019, final judgment in the

Easterday action. Because Deerfield did not miss its opportunity to appeal the final judgment in

the Easterday action, the appeal of the March 22, 2019, order entered in the Guns Save Life action

is neither moot nor barred by collateral estoppel. The March 22, 2019, order in the Easterday action

was rendered appealable on September 6, 2019, when the trial court made findings under Rule

304(a). The court’s March 22, 2019, rulings on counts I and III of Guns Save Life’s amended

complaint likewise were rendered appealable on September 6, 2019, when the court made findings

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under Rule 304(a). 4 Deerfield appealed within 30 days of September 6, 2019. Accordingly, we

have jurisdiction of the appeal under Rule 304(a).

¶ 26 B. Preemption

¶ 27 The trial court granted summary judgment in favor of Easterday and Guns Save Life,

determining that the bans imposed by the 2018 ordinances were preempted by section 13.1 of the

FOID Card Act and section 90 of the Concealed Carry Act. Summary judgment is appropriate

where “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2018). We review de novo the trial

court’s decision. Guns Save Life, Inc. v. Ali, 2020 IL App (1st) 181846, ¶ 43.

¶ 28 When interpreting a statute, our goal is to ascertain and effectuate the legislature’s intent.

Iwan Ries & Co. v. City of Chicago, 2019 IL 124469, ¶ 19. The plain and ordinary meaning of the

statutory language is the most reliable indicator of that intent. Iwan Ries, 2019 IL 124469, ¶ 19.

We must consider the statute as a whole, construing words and phrases in their proper context

rather than in isolation. Iwan Ries, 2019 IL 124469, ¶ 19. We may consider both the subject of the

statute and the legislature’s apparent purpose in enacting it. Iwan Ries, 2019 IL 124469, ¶ 19. If it

is possible to do so, we should embrace an interpretation that gives a reasonable meaning to each

word, clause, and sentence of the statute without rendering any language superfluous. Murphy-

Hylton v. Lieberman Management Services, Inc., 2016 IL 120394, ¶ 25. Where the statute’s

4 As explained below in section II.B.7., the court’s Rule 304(a) findings did not render

appealable the nonfinal orders as to counts II and IV of Guns Save Life’s amended complaint.

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language is clear and unambiguous, we apply it as written without resorting to extrinsic aids of

construction. Skaperdas v. Country Casualty Insurance Co., 2015 IL 117021, ¶ 16.

¶ 29 1. Nature of Home Rule Authority

¶ 30 Before turning to the statutes at issue, we will provide some background about the nature

of home rule authority, as it will inform our analysis. “Under the 1870 Illinois Constitution, the

balance of power between our state and local governments was heavily weighted toward the state.”

City of Chicago v. Stubhub, Inc., 2011 IL 111127, ¶ 18. With the adoption of the current

Constitution in 1970, that balance of power was drastically altered, such that local governments

“now enjoy ‘the broadest powers possible.’ ” Stubhub, 2011 IL 111127, ¶ 18 (quoting Scadron v.

City of Des Plaines, 153 Ill. 2d 164, 174 (1992)). The impetus for this power transfer was “the

assumption that municipalities should be allowed to address their problems by tailoring solutions

to local needs.” Iwan Ries, 2019 IL 124469, ¶ 21. To that end, article 7, section 6(a) of the Illinois

Constitution provides, in relevant portion:

“Except as limited by this Section, a home rule unit may exercise any power and perform

any function pertaining to its government and affairs including, but not limited to, the

power to regulate for the protection of the public health, safety, morals and welfare; to

license; to tax; and to incur debt.” Ill. Const. 1970, art. VII, § 6(a).

The Constitution indicates that the “[p]owers and functions of home rule units shall be construed

liberally.” Ill. Const. 1970, art. VII, § 6(m).

¶ 31 Nevertheless, the legislature retains the authority to restrict the powers of home rule units.

Article 7, section 6(h), for example, allows the legislature to “provide specifically by law for the

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exclusive exercise by the State of any power or function of a home rule unit.” 5 Ill. Const. 1970,

art. VII, § 6(h). Article 7, section 6(i) establishes that home rule units may exercise their powers

concurrently with the State, to the extent that the legislature “does not specifically limit the

concurrent exercise or specifically declare the State’s exercise to be exclusive.” Ill. Const. 1970,

art. VII, § 6(i). Thus, the legislature must expressly limit or deny home rule authority whenever it

intends to do so. Palm v. 2800 Lake Shore Drive Condominium Ass’n, 2013 IL 110505, ¶ 31; see

also 5 ILCS 70/7 (West 2018) (“No law enacted after January 12, 1977, denies or limits any power

or function of a home rule unit *** unless there is specific language limiting or denying the power

or function and the language specifically sets forth in what manner and to what extent it is a

limitation on or denial of the power or function of a home rule unit.”). “In other words, the default

position for a home rule unit is to be able to legislate local matters,” and “the legislature’s silence

on the power of home rule units is actually evidence of the home rule unit’s power.” Accel

Entertainment Gaming, LLC v. Village of Elmwood Park, 2015 IL App (1st) 143822, ¶ 47.

¶ 32 2. The Governing Statutes

¶ 33 As mentioned above, the Concealed Carry Act went into effect on July 9, 2013. Section 90

of that Act provides:

“The regulation, licensing, possession, registration, and transportation of handguns

and ammunition for handguns by licensees are exclusive powers and functions of the State.

Any ordinance or regulation, or portion thereof, enacted on or before the effective date of

this Act that purports to impose regulations or restrictions on licensees or handguns and

5 This rule is subject to certain exceptions relating to taxing powers. Those exceptions are

not relevant to this appeal.

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ammunition for handguns in a manner inconsistent with this Act shall be invalid in its

application to licensees under this Act on the effective date of this Act. This Section is a

denial and limitation of home rule powers and functions under subsection (h) of Section 6

of Article VII of the Illinois Constitution.” 430 ILCS 66/90 (West 2018).

“Handgun” is defined as

“any device which is designed to expel a projectile or projectiles by the action of an

explosion, expansion of gas, or escape of gas that is designed to be held and fired by the

use of a single hand. ‘Handgun’ does not include:

(1) a stun gun or taser;

(2) a machine gun as defined in item (i) of paragraph (7) of subsection (a)

of Section 24-1 of the Criminal Code of 2012;

(3) a short-barreled rifle or shotgun as defined in item (ii) of paragraph (7)

of subsection (a) of Section 24-1 of the Criminal Code of 2012; or

(4) any pneumatic gun, spring gun, paint ball gun, or B-B gun which expels

a single globular projectile not exceeding .18 inch in diameter, or which has a

maximum muzzle velocity of less than 700 feet per second, or which expels

breakable paint balls containing washable marking colors.” 430 ILCS 66/5 (West

2018).

¶ 34 Effective July 9, 2013, the legislature also amended section 13.1 of the FOID Card Act.

That provision now reads as follows:

“(a) Except as otherwise provided in the Firearm Concealed Carry Act and

subsections (b) and (c) of this Section, the provisions of any ordinance enacted by any

municipality which requires registration or imposes greater restrictions or limitations on

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the acquisition, possession and transfer of firearms than are imposed by this Act, are not

invalidated or affected by this Act.

(b) Notwithstanding subsection (a) of this Section, the regulation, licensing,

possession, and registration of handguns and ammunition for a handgun, and the

transportation of any firearm and ammunition by a holder of a valid Firearm Owner’s

Identification Card issued by the Department of State Police under this Act are exclusive

powers and functions of this State. Any ordinance or regulation, or portion of that

ordinance or regulation, enacted on or before the effective date of this amendatory Act of

the 98th General Assembly that purports to impose regulations or restrictions on a holder

of a valid Firearm Owner’s Identification Card issued by the Department of State Police

under this Act in a manner that is inconsistent with this Act, on the effective date of this

amendatory Act of the 98th General Assembly, shall be invalid in its application to a holder

of a valid Firearm Owner’s Identification Card issued by the Department of State Police

under this Act.

(c) Notwithstanding subsection (a) of this Section, the regulation of the possession

or ownership of assault weapons are exclusive powers and functions of this State. Any

ordinance or regulation, or portion of that ordinance or regulation, that purports to regulate

the possession or ownership of assault weapons in a manner that is inconsistent with this

Act, shall be invalid unless the ordinance or regulation is enacted on, before, or within 10

days after the effective date of this amendatory Act of the 98th General Assembly. Any

ordinance or regulation described in this subsection (c) enacted more than 10 days after the

effective date of this amendatory Act of the 98th General Assembly is invalid. An

ordinance enacted on, before, or within 10 days after the effective date of this amendatory

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Act of the 98th General Assembly may be amended. The enactment or amendment of

ordinances under this subsection (c) are subject to the submission requirements of Section

13.3. For the purposes of this subsection, ‘assault weapons’ means firearms designated by

either make or model or by a test or list of cosmetic features that cumulatively would place

the firearm into a definition of ‘assault weapon’ under the ordinance.

(d) For the purposes of this Section, ‘handgun’ has the meaning ascribed to it in

Section 5 of the Firearm Concealed Carry Act.

(e) This Section is a denial and limitation of home rule powers and functions under

subsection (h) of Section 6 of Article VII of the Illinois Constitution.” 430 ILCS 65/13.1

(West 2018).

¶ 35 This appeal presents four questions with respect to Deerfield’s bans of assault weapons and

large capacity magazines: (1) does section 13.1 of the FOID Card Act preempt all regulation of

assault weapons by home rule units; (2) if not, was Deerfield’s 2013 ordinance “inconsistent with”

the FOID Card Act, within the meaning of section 13.1(c) of that Act; (3) if Deerfield’s 2013

ordinance was inconsistent with the FOID Card Act, were Deerfield’s 2018 ordinances mere

amendments to the 2013 ordinance, as allowed by section 13.1(c); and (4) to the extent that

Deerfield’s ban of large capacity magazines regulates ammunition for handguns, is such a ban

preempted by section 13.1(b) of the FOID Card Act and section 90 of the Concealed Carry Act?

¶ 36 3. Section 13.1 of the FOID Card Act Does Not Preempt All

Regulation of Assault Weapons by Home Rule Units

¶ 37 The trial court determined that section 13.1 of the FOID Card Act preempts all regulation

by home rule units relating to the possession or ownership of assault weapons. Easterday and Guns

Save Life defend the court’s conclusion on this point. In doing so, they focus heavily on the

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language of section 13.1(e) (“This Section is a denial and limitation of home rule powers and

functions under subsection (h) of Section 6 of Article VII of the Illinois Constitution.” (430 ILCS

65/13.1(e) (West 2018)), along with the first sentence of section 13.1(c) (“[T]he regulation of the

possession or ownership of assault weapons are exclusive powers and functions of this State.” (430

ILCS 65/13.1(c) (West 2018)).

¶ 38 Deerfield, on the other hand, argues that the interpretation espoused by Easterday, Guns

Save Life, and the trial court fails to give effect to the following language in section 13.1(c):

“Any ordinance or regulation, or portion of that ordinance or regulation, that purports to

regulate the possession or ownership of assault weapons in a manner that is inconsistent

with this Act, shall be invalid unless the ordinance or regulation is enacted on, before, or

within 10 days after the effective date of this amendatory Act of the 98th General Assembly.

Any ordinance or regulation described in this subsection (c) enacted more than 10 days

after the effective date of this amendatory Act of the 98th General Assembly is invalid.”

(Emphasis added.) 430 ILCS 65/13.1(c) (West 2018).

Taking this language into account, Deerfield maintains that the legislature adopted a “unique,

hybrid form of concurrent jurisdiction over assault weapons.” According to Deerfield, home rule

units that regulated assault weapons within the window specified in section 13.1(c) retain their

concurrent regulatory power; home rule units that failed to regulate assault weapons within this

window, on the other hand, are prohibited from regulating on this subject.

¶ 39 Deerfield’s interpretation of the statute prevails. As noted above, if it is possible to do so,

we should embrace an interpretation that gives a reasonable meaning to each word, clause, and

sentence of the statute without rendering any language superfluous. Murphy-Hylton, 2016 IL

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120394, ¶ 25. Contrary to what the trial court concluded, we believe that it is possible to give effect

to all of the language of section 13.1.

¶ 40 To be sure, section 13.1(e) and the first sentence of section 13.1(c) contain language that,

if isolated from the rest of the statute, would generally be interpreted as preempting all local

regulation of assault weapons. See City of Chicago v. Roman, 184 Ill. 2d 504, 517-18 (1998)

(collecting examples of statutes where the legislature evinced its intent to preempt all regulation

by home rule units on various topics). Nevertheless, we must consider the statute as a whole,

construing words and phrases in their proper context rather than in isolation. Iwan Ries, 2019 IL

124469, ¶ 19. Immediately after declaring that “the regulation of the possession or ownership of

assault weapons are exclusive powers and functions of this State,” the statute carves out an

exception for ordinances and regulations that were enacted on, before, or within 10 days of the

statute’s effective date. 430 ILCS 65/13.1(c) (West 2018). The statute adds that such ordinances

may be amended outside the 10-day window. 430 ILCS 65/13.1(c) (West 2018).

¶ 41 Construing these provisions together, it is apparent that the legislature did not intend to

preempt all regulation of assault weapons by home rule units. Instead, as Deerfield suggests, the

legislature contemplated a hybrid balance of regulatory power between the State and local

governments, whereby certain home rule units would have the authority to concurrently regulate

assault weapons and others would not. In other words, the legislature intended that home rule units

would be precluded from regulating assault weapons unless they took steps, within the prescribed

timeframe, to regulate the possession or ownership of assault weapons in a manner that is

inconsistent with the FOID Card Act.

¶ 42 For these reasons, we hold that the trial court erred in determining that section 13.1 of the

FOID Card Act preempts all regulation of assault weapons by home rule units.

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¶ 43 4. Deerfield’s 2013 Ordinance Was “Inconsistent With” the FOID Card Act

¶ 44 The next issue is whether Deerfield retained its authority to regulate assault weapons

concurrently with the State. There is no dispute that Deerfield enacted its 2013 ordinance within

the window specified in section 13.1(c) of the FOID Card Act. The parties disagree, however, as

to whether Deerfield’s 2013 ordinance was “inconsistent with” the FOID Card Act. See 430 ILCS

65/13.1(c) (West 2018) (“[a]ny ordinance *** that purports to regulate the possession or ownership

of assault weapons in a manner that is inconsistent with this Act[ ] shall be invalid” unless it is

enacted within the specified window).

¶ 45 In the alternative to its conclusion that section 13.1 of the FOID Card Act categorically

preempts local regulation of assault weapons, the trial court determined that, because Deerfield’s

2013 ordinance merely regulated the transportation and storage of assault weapons, it was not

inconsistent with the FOID Card Act. In the court’s view, section 13.1(c) of the FOID Card Act

“provided home rule units a one-time 10-day window from the date of this section’s effective date

to ban ownership or possession of assault weapons.” The court reasoned that, because Deerfield

failed to enact such a ban within this window, it “lost its opportunity to do so and cannot later

amend its ordinance to impose such a ban.”

¶ 46 On appeal, both Easterday and Guns Save Life defend the trial court’s interpretation.

Deerfield addresses this issue in a single footnote of its appellant’s brief. Guns Save Life asks us

to ignore Deerfield’s argument because substantive material should not appear in footnotes. See

Lundy v. Farmers Group, Inc., 322 Ill. App. 3d 214, 218 (2001) (striking footnotes from a brief

that used footnotes (1) excessively, (2) to convey substantive arguments, and (3) to circumvent

page limits). Although Deerfield should not have included substantive material in a footnote, we

decline to strike the subject footnote or otherwise ignore Deerfield’s argument. Deerfield did not

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use footnotes excessively in its brief, nor did it use footnotes to circumvent page limits.

Additionally, this appeal might have legal implications for other home rule units that enacted

regulations within the 10-day window short of assault-weapon bans, which is another reason not

to ignore Deerfield’s argument.

¶ 47 Deerfield argues as follows:

“The term ‘inconsistent with’ refers to actions by a home-rule unit inconsistent with the

State’s exclusive jurisdiction absent action by a home-rule unit. The [FOID Card Act]

merely asserted that the State now had exclusive jurisdiction. It did not impose any

regulation beyond that. There was, despite the Circuit Court’s assertion, no legislative or

regulatory scheme with which to conflict. The only ‘inconsistency’ to which the provision

refers would be the assertion of home-rule authority itself.”

For the following reasons, we conclude that, although Deerfield comes closer to the proper

interpretation, neither the parties nor the trial court accurately identified what the legislature

intended when it allowed for local regulations of assault weapons that are “inconsistent with” the

FOID Card Act.

¶ 48 The primary concern of the FOID Card Act is to regulate who may acquire or possess

firearms, not which firearms those individuals may acquire or possess. See 430 ILCS 65/1 (West

2018). The Act defines “firearm” broadly, without excluding assault weapons. See 430 ILCS

65/1.1 (West 2018). Indeed, the only mention of assault weapons in the Act is in section 13.1(c).

The Act’s general rule, which is subject to numerous exceptions, is that no person who lacks a

FOID card may acquire or possess within the State any firearm ammunition or any firearm, stun

gun, or taser. 430 ILCS 65/2(a) (West 2018). Therefore, contrary to what Deerfield suggests, the

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FOID Card Act does regulate assault weapons, insofar as it requires anyone who acquires or

possesses such firearms to have a FOID card.

¶ 49 To ascertain what the legislature intended in section 13.1(c) of the FOID Card Act when it

created a window for home rule units to “regulate the possession or ownership of assault weapons

in a manner that is inconsistent with this Act,” we must read section 13.1(c) within the context of

the entire section. Section 13.1(a) sets forth the general rule that the Act is not intended to

invalidate local regulations that require registration or impose “greater restrictions or limitations

on the acquisition, possession and transfer of firearms than are imposed by this Act.” 430 ILCS

65/13.1(a) (West 2018). Section 13.1(c) is designated as an exception to the rule outlined in section

13.1(a). The first sentence of section 13.1(c) provides: “Notwithstanding subsection (a) of this

Section, the regulation of the possession or ownership of assault weapons are exclusive matters

and functions of this State.” 430 ILCS 65/13.1(c) (West 2018). The next sentence of section 13.1(c)

creates an exception to the first sentence:

“Any ordinance or regulation, or portion of that ordinance or regulation, that purports to

regulate the possession or ownership of assault weapons in a manner that is inconsistent

with this Act, shall be invalid unless the ordinance or regulation is enacted on, before, or

within 10 days after the effective date of this amendatory Act of the 98th General

Assembly.” 430 ILCS 65/13.1(c) (West 2018).

Accordingly, when the legislature used the phrase “inconsistent with this Act” in section 13.1(c),

it was in the context of providing an exception to an exception to the general rule that ordinances

are not invalid merely because they require registration or impose greater restrictions on the

acquisition, possession, or transfer of firearms than those which are imposed by the Act. Thus, a

home rule unit’s regulation is “inconsistent with” the Act where such regulation imposes greater

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restrictions on assault weapons than the Act imposes. Any regulation of assault weapons beyond

the mere requirement to possess a FOID card is inconsistent with the Act.

¶ 50 With this understanding, we hold that Deerfield’s 2013 ordinance was inconsistent with

the FOID Card Act because it regulated the possession and ownership of assault weapons beyond

what was required by the Act. Specifically, the 2013 ordinance provided:

“It shall be unlawful to store or keep any assault weapon in the Village unless such weapon

is secured in a locked container or equipped with a tamper-resistant mechanical lock or

other safety device, properly engaged so as to render such weapon inoperable by any person

other than the owner or other lawfully authorized user. For purposes of this section, such

weapon shall not be deemed stored or kept when being carried by or under the control of

the owner or other lawfully authorized user.” Deerfield Municipal Code § 15-87(a) (added

July 1, 2013). 6

Additionally, the 2013 ordinance stated:

“It is unlawful and a violation of this section for any person to carry or possess an assault

weapon in the Village, except when on his land or in his own abode, legal dwelling or fixed

place of business, or on the land or in the legal dwelling of another person as an invitee

with that person’s permission, except that this section does not apply to or affect

transportation of assault weapons that meet one of the following conditions:

(i) are broken down in a non-functioning state; or

6 This rule was subject to a self-defense exception: “No person shall be punished for a

violation of this section if an assault weapon is used in a lawful act of self-defense or in defense

of another.” Deerfield Municipal Code § 15-87(b) (added July 1, 2013).

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(ii) are not immediately accessible; or

(iii) are unloaded and enclosed in a case, firearm carrying box, shipping box, or

other container by a person who has been issued a currently valid Firearm Owner’s

Identification Card.” Deerfield Municipal Code § 15-88(a) (added July 1, 2013). 7

Having regulated the possession and ownership of assault weapons in a manner that was

inconsistent with the FOID Card Act, Deerfield preserved its power to regulate assault weapons

concurrently with the State.

¶ 51 The dissent disagrees with the majority’s conclusion that Deerfield regulated both

possession and ownership of assault weapons in its 2013 ordinance. In the dissent’s view,

Deerfield timely regulated only the possession of assault weapons, so it lacked authority under

section 13.1(c) of the FOID Card Act to amend its ordinance in 2018 to regulate the ownership of

assault weapons. We note that neither the trial court nor the parties embraced this rationale. One

need look only to the title of Deerfield’s 2013 ordinance to understand why. That ordinance was

entitled: “An Ordinance Regulating the Ownership and Possession of Assault Weapons in the

Village of Deerfield.” Aside from the title, the restrictions outlined in Deerfield’s 2013 ordinance

applied equally to persons who both possessed and owned assault weapons and to persons who

possessed such weapons but did not own them. By the plain terms of the 2013 ordinance, whenever

an assault weapon was not under the control of or being carried by the owner or some other

lawfully authorized user, the weapon had to be secured by them in a locked container or equipped

with a tamper-resistant mechanical lock or another safety device. In the majority’s view, Deerfield

7 The requirements of sections 15-87 and 15-88 did not apply to law enforcement or

military personnel. Deerfield Municipal Code §§ 15-87(c), 15-88(b) (added July 1, 2013).

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plainly regulated both the possession and ownership of assault weapons within the 10-day window

specified in section 13.1(c) of the FOID Card Act.

¶ 52 Furthermore, as a practical matter, it is not clear how courts could distinguish between

regulations that affect only possession and regulations that affect both possession and ownership.

Ownership and possession are interrelated concepts. For example, one definition of “owner” is

“[s]omeone who has the right to possess, use, and convey something.” Black’s Law Dictionary

(11th ed. 2019). One definition of “possession” is “[s]omething that a person owns or controls.”

Black’s Law Dictionary (11th ed. 2019). In a similar vein, Deerfield defines “owner” in its

municipal code as, in relevant portion, “one who has complete dominion over particular property

and who is the one in whom legal or equitable title rests.” (Emphasis added.) Deerfield Municipal

Code § 1-2(a)(25) (added 1963). “Dominion,” in turn, is defined as “[c]ontrol; possession.”

Black’s Law Dictionary (11th ed. 2019). In light of these overlapping definitions, it is not clear

how an assault weapon ordinance could regulate possession without also regulating ownership.

When Deerfield told its residents in 2013 how they had to store and transport their assault weapons,

such regulations affected residents’ rights as owners of such weapons.

¶ 53 Even if the dissent were correct that “[p]ossession and ownership are completely distinct

concepts” (infra ¶ 87), at the very least, in its 2013 ordinance, Deerfield timely regulated either

the “possession or ownership of assault weapons in a manner that is inconsistent with” the FOID

Card Act. 430 ILCS 65/13.1(c) (West 2018). For example, as explained above, Deerfield’s 2013

rules relating to storing assault weapons went beyond the requirements of the FOID Card Act.

Under the plain language of the statute, that was all that Deerfield needed to do to preserve its

authority to regulate assault weapons concurrently with the State.

¶ 54 5. Deerfield Amended Its 2013 Ordinance

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¶ 55 The next question is whether Deerfield’s 2018 ordinances were amendments to the 2013

ordinance, as allowed by section 13.1(c) of the FOID Card Act. We hold that they were.

¶ 56 Our analysis is straightforward. As explained above, by amending section 13.1 of the FOID

Card Act in 2013, the legislature created a hybrid balance of regulatory power between the State

and local governments, whereby certain home rule units would have the authority to concurrently

regulate assault weapons and others would not. Deerfield preserved its power to regulate assault

weapons concurrently with the State when it enacted its 2013 ordinance. The legislature explicitly

declared that home rule units that preserved their power to regulate assault weapons concurrently

with the State could amend their ordinances. See 430 ILCS 65/13.1(c) (West 2018) (“An ordinance

enacted on, before, or within 10 days after the effective date of this amendatory Act of the 98th

General Assembly may be amended.”). In 2018, Deerfield twice purported to amend its 2013

ordinance and imposed a complete civilian ban on assault weapons and large capacity magazines.

Because Deerfield had the power to regulate assault weapons concurrently with the State, it was

Deerfield’s prerogative to ban such weapons, and there were no time limitations for doing so.

¶ 57 Relying on Athey v. City of Peru, 22 Ill. App. 3d 363 (1974), the trial court nevertheless

conducted a “comparative analysis” of the 2013 and 2018 ordinances to evaluate the extent of the

changes. Noting the “significant differences” between the 2013 ordinance and the 2018

ordinances, the court accepted Easterday’s and Guns Save Life’s arguments that the 2018

ordinances were new ordinances rather than mere amendments to the 2013 ordinance.

¶ 58 In Athey, the plaintiff property owners filed an action challenging the City of Peru’s

ordinance No. 1699, which rezoned an adjacent property from residential to commercial. Athey,

22 Ill. App. 3d at 365-66. One disputed issue in the action was whether ordinance No. 1699 was a

new ordinance or whether it was an amendment of ordinance No. 1497. Athey, 22 Ill. App. 3d at

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366. That issue was significant to the litigation because amendments to existing ordinances

required a two-thirds vote of the city council to pass, whereas new ordinances could be enacted by

a majority vote. Athey, 22 Ill. App. 3d at 366. The appellate court recognized that it was called

upon to ascertain the city council’s intent. See Athey, 22 Ill. App. 3d at 367 (“The primary purpose

of construction of ordinances is to determine and give full effect to the intent of the law-making

body as revealed by the language used.”). Ascertaining that intent was complicated, however, by

the fact that ordinance No. 1699’s introductory clause was ambiguous: “ ‘Whereas the City of

Peru, Illinois now desires to amend comprehensively its existing ordinance by adopting a new

ordinance.’ ” Athey, 22 Ill. App. 3d at 367. Additionally, during the legislative process, the city

council interchangeably referred to ordinance No. 1699 as a “comprehensive amendment” and a

“new ordinance.” Athey, 22 Ill. App. 3d at 367. Under those circumstances, the court undertook a

“comparative analysis” of the two ordinances. Athey, 22 Ill. App. 3d at 368. Upon doing so, the

court determined that ordinance No. 1699 was a new ordinance rather than an amendment of

ordinance No. 1497. Athey, 22 Ill. App. 3d at 368.

¶ 59 Unlike in Athey, there is no need to undertake a comparative analysis of Deerfield’s

ordinances. Deerfield indicated that it intended for the 2018 ordinances to serve as amendments to

the 2013 ordinance. For example, the titles of the 2018 ordinances reflected that intent, as did the

ordinances’ introductory paragraphs. All changes were reflected by striking through language that

was to be removed from the municipal code and underlining language to be added. There was no

ambiguity as to Deerfield’s intent, so we need not resort to additional cannons of interpretation to

ascertain that intent.

¶ 60 The other cases that the trial court cited—Village of Park Forest v. Wojciechowski, 29 Ill.

2d 435 (1963), and Nolan v. City of Granite City, 162 Ill. App. 3d 187 (1987)—are distinguishable.

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The issue in both of those cases was whether ordinances remained in effect after the respective

municipal bodies enacted other ordinances touching on the same subjects. In the present case, by

contrast, there is no ambiguity or dispute as to which portions of the 2013 ordinance remained in

effect after the enactment of the 2018 ordinances.

¶ 61 Even so, both Wojciechowski and Nolan recognized that the paramount consideration is

whether the municipal body intended to amend versus repeal the earlier ordinance. See

Wojciechowski, 29 Ill. 2d at 439 (“[T]here was no manifestation of an intent to entirely revise and

repeal the original ordinance.”); Nolan, 162 Ill. App. 3d at 190 (“We find no intention to repeal

ordinance No. 2574 in ordinance 2910 or any evidence of inconsistency between the two.”).

Deerfield intended for its 2018 ordinances to serve as amendments to the 2013 ordinance, not to

repeal the 2013 ordinance. The trial court essentially concluded that, notwithstanding this clearly

expressed intent, the changes that Deerfield made were more drastic than the legislature

contemplated when it enacted section 13.1(c) of the FOID Card Act. We find no support for the

trial court’s decision on this point in the case law or the text of section 13.1(c).

¶ 62 Both Easterday and Guns Save Life note that section 1-7 of the Deerfield Municipal Code

provides:

“The provisions appearing in this Code, insofar as they relate to the same subject

matter and are substantially the same as those ordinance provisions previously adopted by

the Village and existing at the effective date of this Code, shall be considered as

restatements and continuations thereof and not as new enactments.” Deerfield Municipal

Code § 1-7 (added 1963).

According to Easterday and Guns Save Life, Deerfield’s 2018 ordinances were not substantially

the same as the 2013 ordinance, so they must be new enactments rather than amendments. We

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reject this reasoning. The provision that Easterday and Guns Save Life cite merely indicates that,

when Deerfield enacted its municipal code, Deerfield generally intended to restate its ordinances

that were already in existence. Contrary to what Easterday and Guns Save Life argue, section 1-7

does not invite courts to second guess Deerfield’s intent where, as here, it specifically declared

that it intended to amend an ordinance.

¶ 63 We already outlined the majority’s view that the dissent’s analysis proceeds from the faulty

premise that Deerfield regulated the possession but not ownership of assault weapons in its 2013

ordinance. See supra ¶¶ 51-53. Even if this premise were correct, however, we would find no

support for the conclusion that a home rule unit that timely regulated the possession of assault

weapons could not amend its statute outside the 10-day window to regulate ownership. The text

of section 13.1(c) of the FOID Card Act certainly does not say that. As noted above, the statute

merely says that an ordinance enacted within the 10-day window “may be amended.” 430 ILCS

65/13.1(c) (West 2018). When interpreting a statute, a court “must not depart from the plain

meaning of the statutory language by reading into it exceptions, limitations, or conditions not

expressed by the legislature.” In re Estate of Shelton, 2017 IL 121199, ¶ 36. We thus should not

read an exception into section 13.1(c) by interpreting it to mean that a home rule unit may amend

its ordinance so long as it does not switch from regulating possession to regulating ownership.

¶ 64 Moreover, we found nothing supporting the dissent’s view in the lengthy floor debates of

Public Act 98-63 (eff. July 9, 2013) (the 2013 legislation that enacted the Concealed Carry Act

and amended section 13.1 of the FOID Card Act). At no point did any lawmaker mention or

insinuate that the legislature intended to distinguish between possessing assault weapons and

owning such weapons. Nor did any lawmaker mention or insinuate that home rule units had to ban

assault weapons within the 10-day window or forever lose their power to do so.

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¶ 65 To the contrary, the legislative history suggests that the legislature intended that home rule

units could preserve their authority to regulate assault weapons concurrently with the State simply

by enacting a regulation within the 10-day window. The following excerpt from the exchange

between Senators Raoul and Forby (Senator Forby was one of the bill’s sponsors) illustrates this

point:

“SENATOR RAOUL: Can a—can a municipality or home rule unit that has

enacted a regulation or ordinance either before or within ten days of the effective date that

regulates assault weapons amend that regulation or ordinance in the future?

PRESIDING OFFICER (SENATOR MUÑOS): Senator Forby.

SENATOR FORBY: Yes.” 98th Ill. Gen. Assem., Senate Proceedings, May 31,

2013, at 21 (statements of Senators Raoul, Muños, and Forby).

Thus, even assuming that the dissent is correct that Deerfield initially regulated only the possession

of assault weapons and then subsequently regulated ownership, that is consistent with the

legislature’s intent.

¶ 66 6. Impact of Section 13.1(b) of the FOID Card Act and Section 90 of the

Concealed Carry Act on Deerfield’s Ban of Large Capacity Magazines

¶ 67 The parties also disagree as to the impact of section 13.1(b) of the FOID Card Act and

section 90 of the Concealed Carry Act on Deerfield’s ban of large capacity magazines. The trial

court determined that, in light of these statutes, “home rule units no longer have the authority to

regulate or restrict the licensing and possession of *** handgun ammunition with respect to a

holder of a valid Firearm Owner’s Identification Card or a holder of a license to carry a concealed

firearm.” On appeal, Deerfield maintains that large capacity magazines are commonly understood

as components of assault weapons. Deerfield would have us believe that large capacity magazines

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are also exclusively components of assault weapons. To that end, Deerfield emphasizes that

assault-weapon bans across the country traditionally have included bans of large capacity

magazines. Easterday and Guns Save Life assert that Deerfield forfeited its arguments on these

points and that, forfeiture aside, Deerfield’s arguments lack merit. Essentially, Easterday and Guns

Save Life contend that large capacity magazines are not exclusive to assault weapons and can be

used with handguns.

¶ 68 In its reply brief, Deerfield points to a four-page colloquy between its counsel and the trial

court, which Deerfield maintains was sufficient to preserve this issue for appeal. During that

colloquy, Deerfield’s counsel mentioned some, but not all, of the points that Deerfield now raises

in support of its argument on appeal. Under the circumstances, we choose to overlook any

forfeiture and address the merits, as doing so is necessary to obtain a just result and to maintain a

sound and uniform body of precedent. See Jill Knowles Enterprises, Inc. v. Dunkin, 2017 IL App

(2d) 160811, ¶ 22.

¶ 69 Section 13.1(b) of the FOID Card Act unambiguously prohibits home rule units from

regulating handgun ammunition in a manner that is inconsistent with the FOID Card Act:

“Notwithstanding subsection (a) of this Section, the regulation, licensing, possession, and

registration of handguns and ammunition for a handgun *** are exclusive powers and

functions of this State. Any ordinance or regulation, or portion of that ordinance or

regulation, enacted on or before the effective date of this amendatory Act of the 98th

General Assembly that purports to impose regulations or restrictions on a holder of a valid

Firearm Owner’s Identification Card issued by the Department of State Police under this

Act in a manner that is inconsistent with this Act, on the effective date of this amendatory

Act of the 98th General Assembly, shall be invalid in its application to a holder of a valid

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Firearm Owner’s Identification Card issued by the Department of State Police under this

Act.” 430 ILCS 65/13.1(b) (West 2018).

Section 90 of the Concealed Carry Act similarly prohibits home rule units from regulating handgun

ammunition in a manner that is inconsistent with the Concealed Cary Act:

“The regulation, licensing, possession, registration, and transportation of handguns

and ammunition for handguns by licensees are exclusive powers and functions of the State.

Any ordinance or regulation, or portion thereof, enacted on or before the effective date of

this Act that purports to impose regulations or restrictions on licensees or handguns and

ammunition for handguns in a manner inconsistent with this Act shall be invalid in its

application to licensees under this Act on the effective date of this Act. This Section is a

denial and limitation of home rule powers and functions under subsection (h) of Section 6

of Article VII of the Illinois Constitution.” 430 ILCS 66/90 (West 2018).

¶ 70 The question presented is whether Deerfield’s ban of large capacity magazines improperly

regulates handgun ammunition. Deerfield defines “large capacity magazine” as

“any ammunition feeding device with the capacity to accept more than ten rounds, but shall

(1) A feeding device that has been permanently altered so that it cannot

(3) A tubular magazine that is contained in a lever-action firearm.”

Guns Save Life asserts that many popular handguns that do not qualify as “assault weapons” under

Deerfield’s definition of that term come standard with magazines that hold more than 10 rounds.

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Deerfield does not dispute that assertion. Moreover, when the trial court questioned Deerfield’s

counsel about whether Deerfield’s definition of “large capacity magazine” was overbroad to the

extent that it applied to handgun ammunition, counsel acknowledged that Deerfield bans “any

magazine ten rounds or more.”

¶ 71 Deerfield nevertheless insists that large capacity magazines are exclusively components of

assault weapons. The plain language of Deerfield’s definition of “large capacity magazine,”

however, does not exclude handgun ammunition. Deerfield also claims that its definitions of

“assault weapon” and “large capacity magazine” are similar or identical to those that have been

enacted across the country and which have withstood challenges on second amendment grounds.

See, e.g., Wilson v. Cook County, 937 F.3d 1028 (7th Cir. 2019); Friedman v. City of Highland

Park, 784 F.3d 406 (7th Cir. 2015). Be that as it may, the plaintiffs here challenge Deerfield’s ban

of large capacity magazines on preemption grounds, not second amendment grounds, and the

Illinois legislature has indicated that home rule units may not regulate ammunition for handguns

in a manner that is inconsistent with State law. It is the judiciary’s role to enforce statutes as

written, not to question the wisdom of the legislature. See Manago v. County of Cook, 2017 IL

121078, ¶ 10 (“Whenever possible, courts must enforce clear and unambiguous statutory language

as written, without reading in unstated exceptions, conditions, or limitations.”). As our supreme

court explained in Illinois Landowners Alliance, NFP v. Illinois Commerce Comm’n, 2017 IL

121302, ¶ 50: “[T]he wisdom of this state’s regulatory system is a matter for the legislature, not

our court. Of all the principles of statutory construction, few are more basic than that a court may

not rewrite a statute to make it consistent with the court’s own idea of orderliness and public

policy.” We thus hold that, to the extent that Deerfield’s ban of large capacity magazines regulates

ammunition for handguns, it is preempted in its application to holders of valid FOID cards and

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concealed carry licenses by section 13.1(b) of the FOID Card Act and section 90 of the Concealed

Carry Act. Accordingly, on this limited point, we affirm the trial court’s grant of summary

judgment in favor of Easterday and Guns Save Life.

¶ 72 7. Proposed Alternative Basis to Affirm

¶ 73 Guns Save Life argues that, as an alternative basis to affirm the trial court’s judgment, we

should conclude that the Wildlife Code preempts Deerfield’s bans of assault weapons and large

capacity magazines. We lack jurisdiction to consider this issue because Guns Save Life’s claims

regarding the Wildlife Code remain pending in the trial court.

¶ 74 In counts II and IV of its amended complaint, Guns Save Life alleged that Deerfield’s 2018

ordinances were preempted by the Wildlife Code insofar as they banned assault weapons and large

capacity magazines. Guns Save Life moved for summary judgment on all of its claims. Deerfield

opposed Guns Save Life’s motion for summary judgment but did not file a cross-motion for

summary judgment.

¶ 75 On March 22, 2019, the trial court determined that the Wildlife Code did not preempt

Deerfield’s 2018 ordinances. The effect of that ruling was to deny summary judgment with respect

to counts II and IV of Guns Save Life’s amended complaint. On September 6, 2019, the court

made Rule 304(a) findings with respect to counts I through IV of Guns Save Life’s amended

complaint.

¶ 76 “The denial of a summary judgment motion is not a final order and is normally not

appealable even where the court has made a finding pursuant to Illinois Supreme Court Rule

304(a).” Fogt v. 1-800-Pack-Rat, LLC, 2017 IL App (1st) 150383, ¶ 95. The exception to this rule

is where the parties file cross-motions for summary judgment and the trial court disposes of all

issues in the case by granting one motion and denying the other. Fogt, 2017 IL App (1st) 150383,

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¶ 95. The parties here did not file cross-motions for summary judgment and the trial court did not

dispose of all issues in the case, so the exception does not apply. We lack jurisdiction to review

the court’s denial of summary judgment with respect to counts II and IV of Guns Save Life’s

amended complaint.

¶ 77 8. Summary of Holdings

¶ 78 In summary, we hold that (1) section 13.1 of the FOID Card Act does not preempt all

regulation of assault weapons by home rule units; (2) Deerfield, in its 2013 ordinance, regulated

the possession and ownership of assault weapons in a manner that was inconsistent with the FOID

Card Act, thus preserving its power to regulate assault weapons concurrently with the State;

(3) Deerfield’s 2018 ordinances were amendments to the 2013 ordinance, as allowed by section

13.1(c) of the FOID Card Act; (4) to the extent that Deerfield’s ban of large capacity magazines

regulates ammunition for handguns, it is preempted in its application to holders of valid FOID

cards and concealed carry licenses by section 13.1(b) of the FOID Card Act and section 90 of the

Concealed Carry Act; and (5) we lack jurisdiction to consider Guns Save Life’s claims that

Deerfield’s bans of assault weapons and large capacity magazines are preempted by the Wildlife

Code. Accordingly, we affirm in part and reverse in part the trial court’s orders granting summary

judgment in favor of Easterday and Guns Save Life. We affirm the orders granting the permanent

injunctions only insofar as that, to the extent that Deerfield’s ban of large capacity magazines

regulates ammunition for handguns, Deerfield is prohibited from enforcing that regulation against

persons who hold valid FOID cards or concealed carry licenses. In all other respects, the permanent

injunctions are vacated. We remand the cause for further proceedings consistent with this opinion.

¶ 79 III. CONCLUSION

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¶ 80 For the foregoing reasons, we affirm the judgments of the circuit court of Lake County in

part and reverse the judgments in part. We vacate the permanent injunctions in part and remand

the cause for further proceedings consistent with this opinion.

¶ 81 Affirmed in part and reversed in part. Permanent injunctions vacated in part. Cause

remanded.

¶ 82 JUSTICE McLAREN, concurring in part and dissenting in part.

¶ 83 I dissent from the majority’s conclusion that Deerfield, in its 2013 ordinance, regulated

ownership of assault weapons, and that Deerfield’s 2018 ordinance 8 prohibiting the ownership of

assault weapons was an amendment allowed by the legislature.

¶ 84 In section 13.1(c) of the FOID Card Act, the legislature allowed home rule municipalities

to “regulate the possession or ownership of assault weapons in a manner that is inconsistent with

this Act.” 430 ILCS 65/13.1(c) (West 2018). Such opportunity had to be exercised on, before, or

within 10 days after the effective date of the amendatory Act. Id. Deerfield acted within this time

frame, enacting the 2013 ordinance that provided:

“It shall be unlawful to store or keep any assault weapon in the Village unless such weapon

is secured in a locked container or equipped with a tamper-resistant mechanical lock or

other safety device, properly engaged so as to render such weapon inoperable by any person

other than the owner or other lawfully authorized user. For purposes of this section, such

weapon shall not be deemed stored or kept when being carried by or under the control of

8 While Deerfield passed two 2018 ordinances relevant to the case, I will refer to them as a

singular ordinance.

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the owner or other lawfully authorized user.” Deerfield Municipal Code § 15-87(a) (added

July 1, 2013).

The ordinance also limited where in the Village a person could “carry or possess” an assault

weapon and provided for various methods of transportation of assault weapons in otherwise-

prohibited areas. See Deerfield Municipal Code § 15-88(a) (added July 1, 2013).

¶ 85 The majority makes the bald assertion that Deerfield’s 2013 ordinance “regulated the

possession and ownership of assault weapons beyond what was required by the [FOID] Act.”

(Emphasis added). Supra ¶ 50. “Regulate” is defined as “to govern or direct according to rule”;

“to bring under the control of law or constituted authority”; “to make regulations for or

concerning.” Merriam Webster Online Dictionary, https://www.merriam-webster.com/dictionary/

regulate (last visited Nov. 4, 2020) [https://perma.cc/KJA4-CPQC].

¶ 86 The 2013 ordinance regulated the possession of assault weapons, imposing restrictions on

how assault weapons may be stored, kept, and transported. However, that ordinance in no way

regulated the ownership of assault weapons. The 2013 ordinance allowed one to store or keep an

assault weapon in the Village so long as it was secured in such a way as to make it inoperable by

anyone other than the owner or an authorized user. Further, it provided that an assault weapon

“shall not be deemed stored or kept when being carried by or under the control of the owner or

other lawfully authorized user.” Deerfield Municipal Code, § 15-87(a) (added July 1, 2013). The

ordinance also limited where in the Village assault weapons could be carried or possessed and how

they could be transported, but ownership of assault weapons was never addressed, let alone “in a

manner that is inconsistent with this [FOID] Act.” See 430 ILCS 65/13.1(c) (West 2018).

¶ 87 However, the majority never explains how the ordinance regulated ownership of assault

weapons. Possession and ownership are completely distinct concepts, and we must give meaning

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to the legislature’s use of these concepts separately. The majority’s claim that possession and

ownership are indistinguishable (see supra ¶ 52) is both weak 9 and irrelevant. To “regulate”

ownership involves limiting who may own some item, even to the point of prohibiting ownership

of the item. The 2013 ordinance did not prevent anyone eligible to own an assault weapon under

state law from owning one. The 2013 ordinance did not regulate ownership; it assumed ownership

of such weapons within the village. It specifically contemplated the carrying, control, and

operation of assault weapons by owners and other authorized users. None of the requirements

regarding securing an assault weapon or using a lock or other security device apply when the owner

or any other authorized user is carrying or controlling the weapon. The ordinance did not impose

any greater restrictions on ownership of assault weapons than the FOID Act imposed. It merely

regulated where a person could carry or possess assault weapons, how the owner must store such

weapons when they are not being carried, and how they may be transported.

¶ 88 The FOID Act allowed home-rule municipalities to “regulate the possession or ownership

of assault weapons in a manner that is inconsistent with this Act.” 430 ILCS 65/13.1(c) (West

2018). It also allowed for the future amendment of an ordinance enacted on, before, or within 10

days after the effective date of the Act. Because Deerfield did not act to regulate ownership of

assault weapons within the allotted 10-day window with its 2013 ordinance, the majority’s

conclusion that the 2018 ordinance prohibiting ownership is an amendment allowed under the

FOID Act is an enthymeme. A legislative enactment that explicitly recognizes the right to own an

assault weapon is not “amended” by a later enactment that prohibits such ownership; it is

superseded by it. The Law Dictionary (featuring Black’s Law Dictionary Free Online Legal

9 For example, you cannot legally sell your friend’s car when he merely loans it to you.

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Dictionary (2d Ed.)) defines “amend” as “To improve; to make better by change or modification.”

The Law Dictionary, https://thelawdictionary.org/amend/ (last visited Nov. 4, 2020) https://perma.

cc/QT9T-AXMC. It defines “supersede” as “To annul; to stay; to suspend.” The Law Dictionary,

https://thelawdictionary.org/supersede/ (last visited Nov. 4, 2020) [https://perma.cc/4M4T-L879].

Having regulated the storage and transportation of assault weapons in 2013, Deerfield could have

changed or modified those restrictions, either increasing or decreasing the severity of the

restrictions in the 2018 ordinance. However, Deerfield did not regulate ownership, and one cannot

amend a regulation that does not exist. Deerfield’s 2018 ordinance did not merely “improve” or

“make better” the 2013 ordinance; it annulled the 2013 ordinance, wiping out the right to

ownership of assault weapons that Deerfield had explicitly recognized in 2013. It was a complete

reversal of its 2013 ordinance, now prohibiting that which had previously clearly been allowed.

¶ 89 Looking to the titles and introductory paragraphs of the 2018 ordinances, the majority

posits that the 2018 ordinance was an amendment of the 2013 ordinance because:

“Deerfield indicated that it intended for the 2018 ordinances to serve as amendments to the

2013 ordinance. For example, the titles of the 2018 ordinances reflected that intent, as did

the ordinances’ introductory paragraphs. All changes were reflected by striking through

language that was to be removed from the municipal code and underlining language to be

added. There was no ambiguity as to Deerfield’s intent, so we need not resort to additional

cannons of interpretation to ascertain that intent.” Supra ¶ 59.

There is a riddle attributed to Abraham Lincoln: how many legs does a dog have if you call his tail

a leg? The answer, of course, is four; calling a tail a leg does not make it a leg. See BrainyQuote,

https://www.brainyquote.com/quotes/abraham_lincoln_107482 (last visited Nov. 4, 2020) [https:

//perma.cc/6DYW-XXKF]. Similarly, here, the simple act of calling the 2018 ordinance an

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amendment of the 2013 ordinance does not make it one. “We view the statute as a whole,

construing words and phrases in light of other relevant statutory provisions and not in isolation.”

People v. Gutman, 2011 IL 110338, ¶ 12. Further, we assume that, whenever a legislative body

enacts a provision, it has in mind previous statutes relating to the same subject matter such that

they should all be construed together. See People v. Davis, 199 Ill. 2d 130, 137 (2002). The

majority states that it believes that Deerfield “indicated” what it “intended” to do with the 2018

ordinance (supra ¶ 59); however, viewing the 2018 ordinance in the context of the 2013 ordinance,

what Deerfield did in 2018 was to regulate the ownership of assault weapons, an issue that it did

not regulate when it had the opportunity to do so in 2013.

¶ 90 I also find unpersuasive the majority’s assertion that the 2018 ordinance was an amendment

because “changes were reflected by striking through language that was to be removed from the

municipal code and underlining language to be added.” Supra ¶ 59. Had Deerfield struck any

references to assault rifles and added underlined references to dogs, would that be an indication

that the new ordinance was an amendment of Deerfield’s animal control ordinance? Again,

Deerfield did not regulate ownership in 2013; its addition of ownership in the 2018 ordinance

indicates an attempt to write new legislation, not to amend an ordinance that did not regulate

ownership.

¶ 91 The majority’s use of the legislative history for support (supra ¶¶ 64-65) is puzzling. First,

we already knew that amendments of ordinances passed within the 10-day window were allowed.

See 430 ILCS 65/13.1 (West 2018). Second, the argument based on the quoted passage is a

textbook exercise in tautology. In essence, the majority says, “Because Senator Forby said that

municipalities can amend, this is an amendment.” I have argued that the 2018 ordinance was not

an amendment of the 2013 ordinance but a supersedure of that ordinance. Nothing in the cited

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legislative debate addresses, let alone refutes, my argument or can be used to support a claim that

a municipality can use a new ordinance to nullify or supersede a previous ordinance. 10

¶ 92 Perhaps an analogy to a more mundane issue of governance will more clearly demonstrate

the majority’s analysis is faulty. Assume that, in 2013, Deerfield passed an ordinance requiring

that the owners of pickup trucks park their trucks in a driveway or garage when they are not using

the trucks. Then, in 2018, Deerfield passed a new ordinance prohibiting the ownership of pickup

trucks in the Village. Would the majority consider the parking restrictions on pickup trucks to be

a regulation of ownership? Would it consider the 2018 prohibition of ownership a mere

“amendment” of the 2013 parking ordinance? Both the actual and the fictional 2013 ordinances

assumed ownership of the items at issue and merely regulated how they must be stored and

secured. The 2018 ordinances outlawed their possession. Would the majority really consider the

outlawing of pickup trucks to be an amendment of parking regulations?

¶ 93 “[T]he Second Amendment protects a personal right to keep and bear arms for lawful

purposes, most notably for self-defense within the home.” McDonald v. City of Chicago, Illinois,

561 U.S. 742, 780 (2010). This right also extends to self-defense outside the home. See People v.

Aguilar, 2013 IL 112116, ¶ 21. Deerfield’s 2013 ordinance appears to have paid heed to this. It

did not affect the right to own assault weapons; it merely addressed how such weapons had to be

stored in the home when they were not being carried or under the control of the owner or another

authorized user. However, the 2018 ordinance strikes at the very heart of the right to bear arms for

10 The majority’s whimsical exploration of the “lengthy floor debates” (supra ¶ 64)

produces a single exchange—one question with a monosyllabic answer—that Baron

von Munchausen could employ for support.

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self-defense. Where a government’s actions restrict or regulate the exercise of second amendment

rights, Illinois courts apply heightened means-ends scrutiny to the government’s justification for

its regulations. See People v. Chairez, 2018 Il 121417, ¶ 21. While these cases were not brought

on constitutional grounds, they do involve restrictions that affect second amendment rights. The

flaccid foundation for the majority’s conclusion (“Well, that is what the Village said that it wanted

to do.”) certainly falls well short of the scrutiny that should be applied in this case.

¶ 94 Ultimately, the legislature gave home-rule municipalities the opportunity to regulate

ownership of assault weapons, possession of assault weapons, or both. Such regulation had to

occur within a specific 10-day period. Deerfield regulated possession only of assault weapons

within that period. It did not restrict, let alone prohibit, ownership of assault weapons in Deerfield.

The majority’s conclusion that “it was Deerfield’s prerogative to ban such weapons, and there

were no time limitations for doing so” (supra ¶ 56) is factually and legally wrong. Deerfield’s

attempt to ban ownership of assault weapons in 2018 was late and outside the intent of the

legislature. The trial court should be affirmed.

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No. 2-19-0879

Decision Under Review: Appeal from the Circuit Court of Lake County, Nos. 18-CH-427, 18-CH-498; the Hon. Luis A. Berrones, Judge, presiding.

Attorneys Christopher B. Wilson, John B. Sample, and Christopher P. Eby, for of Perkins Coie LLP, and Steven M. Elrod and Hart M. Passman, Appellant: of Elrod Friedman LLP, both of Chicago, and Jonathan E. Lowy, of Washington, D.C., for appellants.

Attorneys David G. Sigale, of Law Firm of David G. Sigale, P.C., of for Wheaton, for appellees Daniel D. Easterday, Illinois State Rifle Appellee: Ass’n, and Second Amendment Foundation, Inc.

Christian D. Ambler, of Stone & Johnson, Chtrd., of Chicago, and Brian W. Barnes, of Cooper & Kirk, PLLC, of Washington, D.C., for other appellees.

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