Victor D. Quilici, Robert Stengl, George L. Reichert, and Robert E. Metler v. Village of Morton Grove

695 F.2d 261

• Court: Court of Appeals for the Seventh Circuit
• Decided: December 10, 1982
• Docket: 82-1045, 82-1076 and 82-1132
• Status: Published

Opinions

BAUER, Circuit Judge.

This appeal concerns the constitutionality of the Village of Morton Grove’s Ordinance No. 81-11,¹ which prohibits the possession of handguns within the Village’s borders. The district court held that the Ordinance was constitutional. We affirm.

I

Victor D. Quilici initially challenged Ordinance No. 81-11 in state court. Morton Grove removed the action to federal court where it was consolidated with two similar actions, one brought by George L. Reichert and Robert E. Metier (collectively Reichert) and one brought by Robert Stengl, Martin Gutenkauf, Alice Gutenkauf, Walter J. Dutchak and Geoffrey Lagonia (collectively Stengl). Plaintiffs alleged that Ordinance No. 81-11 violated article I, section 22 of the Illinois Constitution and the second, ninth and fourteenth amendments of the United States Constitution. They sought an order declaring the Ordinance unconstitutional and permanently enjoining its enforcement. The parties filed cross motions for summary judgment. The district court granted Morton Grove’s motion for summary judgment and denied plaintiffs’ motions for summary judgment.

In its opinion, Quilici v. Village of Morton Grove, 532 F.Supp. 1169 (N.D.Ill. 1981), the district court set forth several reasons for upholding the handgun ban’s validity under the state and federal constitutions. First, it held that the Ordinance which banned only certain kinds of arms was a valid exercise of Morton Grove’s police power and did not conflict with section 22’s conditional right to keep and bear arms. Second, relying on Presser v. Illinois, 116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615 (1886), the court concluded that the second amendment’s guarantee of the right to bear arms has not been incorporated into the fourteenth amendment and, therefore, is inapplicable to Morton Grove. Finally, it stated that the ninth amendment does not include the right to possess handguns for self-defense. Appellants contend that the district court incorrectly construed the relevant constitutional provisions, assigning numerous errors based on case law, historical analysis, common law traditions and public policy concerns.²

While we recognize that this case raises controversial issues which engender strong emotions, our task is to apply the law as it has been interpreted by the Supreme Court, regardless of whether that Court’s interpretation comports with various personal views of what the law should be. We are also aware that we must resolve the controversy without rendering unnecessary constitutional decisions. Richard Nixon v. A. Ernest Fitzgerald,-U.S. -, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982). With these principles in mind we address appellants’ contentions.

II

We consider the state constitutional issue first. The Illinois Constitution provides:

Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed.

111. Const, art. I, § 22. The parties agree that the meaning of this section is controlled by the terms “arms” and “police power” but disagree as to the scope of these terms.

Relying on the statutory construction principles that constitutional guarantees should be broadly construed and that constitutional provisions should prevail over conflicting statutory provisions, appellants allege that section 22’s guarantee of the right to keep and bear arms prohibits a complete ban of any one kind of arm. They argue that the constitutional history of section 22 establishes that the term “arms” includes those weapons commonly employed for “recreation or the protection of person and property,” 6 Record of Proceedings, Sixth Illinois Constitutional Convention 87 (Proceedings), and contend that handguns have consistently been used for these purposes.

Appellants concede that the phrase “subject to the police power” does not prohibit reasonable regulation of arms. Thus, they admit that laws- which require the licensing of guns or which restrict the carrying of concealed weapons or the possession of firearms by minors, convicted felons, and incompetents are valid. However, they maintain that no authority supports interpreting section 22 to permit a ban on the possession of handguns merely because alternative weapons are not also banned. They argue that construing section 22 in this manner would lead to the anomalous situation in which one municipality completely bans handguns while a neighboring municipality completely bans all arms but handguns.

In contrast, Morton Grove alleges that “arms” is a general term which does not include any specific kind of weapon. Relying on section 22’s language, which they characterize as clear and explicit, Morton Grove reads section 22 to guarantee the right to keep only some, but not all, arms which are used for “recreation or the protection of person and property.” It argues that the Ordinance passes constitutional muster because standard rifles and shotguns are also used for “recreation or the protection of person and property” and Ordinance No. 81-11 does not ban these weapons.

While Morton Grove does not challenge appellants’ assertion that “arms” includes handguns, we believe that a discussion of the kind of arms section 22 protects is an appropriate place to begin our analysis. Because we disagree with Morton Grove’s assertion that section 22’s language is clear and explicit, we turn to the constitutional debates for guidance on the proper construction of arms.³ Client Follow-Up Co. v. Hynes, 75 Ill.2d 208, 216, 28 Ill.Dec. 488, 390 N.E.2d 847, 850 (1979), citing Wolfson v. Avery, 6 Ill.2d 78, 126 N.E.2d 701 (1955).⁴

The debates indicate that the category of arms protected by section 22 is not limited to military weapons; the framers also intended to include those arms that “law-abiding persons commonly employ[ed]” for “recreation or the protection of person and property.” 6 Proceedings 87. Handguns are undisputedly the type of arms commonly used for “recreation or the protection of person and property.”

Our conclusion that the framers intended to include handguns in the class of protected arms is supported by the fact that in discussing the term the Proceedings refer to People v. Brown, 253 Mich. 537, 541-42, 235 N.W. 245, 246-47 (1931) and State v. Duke, 42 Tex. 455, 458 (1875). Brown defines weapons as those “relied upon ... for defense or pleasure,” including “ordinary guns” and “revolvers.” 253 Mich, at 542, 235 N.W. at 247. Duke states that “[t]he arms which every person is secured the right to keep and bear (in defense of himself or the State, subject to legislative regulation), must be such arms as are commonly kept, . . . and are appropriate for ... self-defense, as well as such as are proper for the defense of the State.” 42 Tex. at 458. The delegates’ statements and reliance on Brown and Duke convinces us that the term arms in section 22 includes handguns.

Having determined that section 22 includes handguns within the class of arms protected, we must now determine the extent to which a municipality may exercise its police power to restrict, or even prohibit, the right to keep and bear these arms. The district court concluded that section 22 recognizes only a narrow individual right which is subject to substantial legislative control. It noted that “[t]o the extent that one looks to the convention debate for assistance in reconciling the conflict between the right to arms and the exercise of the police power, the debate clearly supports a narrow construction of the individual right.” Quilici v. Village of Morton Grove, 532 F.Supp. at 1174. It further noted that while the Proceedings cite some cases holding that the state’s police power should be read restrictively, those cases were decided under “distinctly different constitutional provisions” and, thus, have little application to this case. Id. at 1176.

We agree with the district court that the right to keep and bear arms in Illinois is so limited by the police power that a ban on handguns does not violate that right. In reaching this conclusion we find two factors significant. First, section 22’s plain language grants only the right to keep and bear arms, not handguns. Second, although the framers intended handguns to be one of the arms conditionally protected under section 22, they also envisioned that local governments might exercise their police power to restrict, or prohibit, the right to keep and bear handguns. For example, Delegate Foster, speaking for the majority, explained:

It could be argued that, in theory, the legislature now [prior to the adoption of the 1970 Illinois Constitution] has the right to ban all firearms in the state as far as individual citizens owning them is concerned. That is the power which we wanted to restrict — an absolute ban on all firearms.

3 Proceedings 1688. Delegate Foster then noted that section 22 “would prevent a complete ban on all guns, but there could be a ban on certain categories.” Id. at 1693.⁵ It is difficult to imagine clearer evidence that section 22 was intended to permit a municipality to ban handguns if it so desired.

Appellants argue that construing section 22 to protect only some unspecified categories of arms, thereby allowing municipalities to exercise their police power to enact dissimilar gun control laws, leads to “untenable” and “absurd” results. Quilici br. at 14. This argument ignores the fact that the Illinois Constitution authorizes local governments to function as home rule units to “exercise any power and perform any function pertaining to its government and affairs”. Illinois Const, art. VIII, § 6(a). Home rule government⁶ is based on the theory that local governments are in the best position to assess the needs and desires of the community and, thus, can most wisely enact legislation addressing local concerns. Carlson v. Briceland, 61 Ill. App.3d 247, 18 Ill.Dec. 502, 377 N.E.2d 1138 (1978). Illinois home rule units have expansive powers to govern as they deem proper, see generally Hall & Wallaek, Intergovernmental Cooperation and the Transfer of Powers, 1981 U.Ill.L.Rev. 775, 777-79; Vitullo & Peters, Intergovernmental Cooperation and the Municipal Insurance Crisis, 30 DePaul L.Rev. 325, 326-29 (1981); including the authority to impose greater restrictions on particular rights than those imposed by the state. See City of Evanston v. Create, Inc., 85 Ill.2d 101, 51 Ill.Dec. 688, 421 N.E.2d 196 (1981). The only limits on their autonomy are those imposed by the Illinois Constitution, City of Carbondale ex rel. Ham v. Eckert, 76 Ill.App.3d 881, 32 Ill.Dec. 377, 395 N.E.2d 607 (1979), or by the Illinois General Assembly exercising its authority to pre-empt home rule in specific instances. Because we have concluded that the Illinois Constitution permits a ban on certain categories of arms, home rule units such as Morton Grove may properly enact different, even inconsistent, arms restrictions. This is precisely the kind of local control envisioned by the new Illinois Constitution.

Appellants concede that municipalities may, under the Illinois Constitution, exercise their police power to enact regulations which prohibit “possession of items legislatively found to be dangerous ... ”, Quilici br. at 9. They draw a distinction, however, between the exercise of the police power in general and the exercise of police power with respect to a constitutionally protected right. Indeed, they vehemently insist that a municipality may not exercise its police power to completely prohibit a constitutional guarantee.

We agree that the state may not exercise its police power to violate a positive constitutional mandate, People v. Warren, 11 Ill.2d 420, 143 N.E.2d 28 (1957), but we reiterate that section 22 simply prohibits an absolute ban on all firearms. Since Ordinance No. 81-11 does not prohibit all firearms, it does not prohibit a constitutionally protected right. There is no right under the Illinois Constitution to possess a handgun, nor does the state have an overriding state interest in gun control which requires it to retain exclusive control in order to prevent home rule units from adopting conflicting enactments. See City of Evanston v. Create, Inc., 85 Ill.2d 101, 51 Ill.Dec. 688, 421 N.E.2d 196 (1981). Accordingly, Morton Grove may exercise its police power to prohibit handguns even though this prohibition interferes with an individual’s liberty or property. People v. Warren, 11 Ill.2d 420, 143 N.E.2d 28 (1957).

The Illinois Constitution establishes a presumption in favor of municipal home rule. Carlson v. Briceland, 61 Ill. App.3d 247, 18 Ill.Dec. 502, 377 N.E.2d 1138 (1978). Once a local government identifies a problem and enacts legislation to mitigate or eliminate it, that enactment is presumed valid and may be overturned only if it is unreasonable, clearly arbitrary, and has no foundation in the police power. Illinois Gamefowl Breeders Ass’n v. Block, 75 Ill.2d 443, 27 Ill.Dec. 465, 389 N.E.2d 529 (1979); People v. Copeland, 92 Ill.App.3d 475, 47 Ill.Dec. 860, 415 N.E.2d 1173 (1st Dist.1980). Thus, it is not the province of this court to pass judgment on the merits of Ordinance No. 81-11; our task is simply to determine whether Ordinance No. 81-11’s restrictions are rationally related to its stated goals. People ex rel. Difanis v. Barr, 83 Ill.2d 191, 46 Ill.Dec. 678, 414 N.E.2d 731 (1980). As the district court noted, there is at least some empirical evidence that gun control legislation may reduce the number of deaths and accidents caused by handguns. Quilici v. Village of Morton Grove, 532 F.Supp. at 1179. This evidence is sufficient to sustain the conclusion that Ordinance No. 81-11 is neither wholly arbitrary nor completely unsupported by any set of facts. People v. Copeland, 92 Ill.App.3d 475, 47 Ill.Dec. 860, 415 N.E.2d 1173 (1st Dist.1980). Accordingly, we decline to consider plaintiffs’ arguments that Ordinance No. 81-11 will not make Morton Grove a safer, more peaceful place.

We agree with the district court that Ordinance No. 81-11: (1) is properly directed at protecting the safety and health of Morton Grove citizens; (2) is a valid exercise of Morton Grove’s police power; and (3) does not violate any of appellants’ rights guaranteed by the Illinois Constitution.⁷

Ill

We next consider whether Ordinance No. 81-11 violates the second amendment to the United States Constitution. While appellants all contend that Ordinance No. 81-11 is invalid under the second amendment, they offer slightly different arguments to substantiate this contention. All argue, however, that the second amendment applies to state and local governments and that the second amendment guarantee of the right to keep and bear arms exists, not only to assist in the common defense, but also to protect the individual. While reluctantly conceding that Presser v. Illinois, 116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615 (1886), held that the second amendment applied only to action by the federal government, they nevertheless assert that Presser also held that the right to keep and bear arms is an attribute of national citizenship which is not subject to state restriction. Reichert br. at 36. Finally, apparently responding to the district court’s comments that “[plaintiffs ... have not suggested that the Morton Grove Ordinance in any way interferes with the ability of the United States to maintain public security ...” Quilici v. Village of Morton Grove, 532 F.Supp. at 1169, Quilici and Reichert argue in this court that the Morton Grove Ordinance interferes with the federal government’s ability to maintain public security by preventing individuals from defending themselves and the community from “external or internal armed threats.” Quilici br. at 12; Reichert br. at 37-38. These are the same arguments made in the district court. Accordingly, we comment only briefly on the points already fully analyzed in that court’s decision.

As we have noted, the parties agree that Presser is controlling, but disagree as to what Presser held. It is difficult to understand how appellants can assert that Presser supports the theory that the second amendment right to keep and bear arms is a fundamental right which the state cannot regulate when the Presser decision plainly states that “[t]he Second Amendment declares that it shall not be infringed, but this ... means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the National government .... ” Presser v. Illinois, 116 U.S. 252, 265, 6 S.Ct. 580, 584, 29 L.Ed. 615 (1886). As the district court explained in detail, appellants’ claim that Presser supports the proposition that the second amendment guarantee of the right to keep and bear arms is not subject to state restriction is based on dicta quoted out of context. Quilici v. Village of Morton Grove, 532 F.Supp. at 1181-82. This argument borders on the frivolous and does not warrant any further consideration.

Apparently recognizing the inherent weakness of their reliance on Presser, appellants urge three additional arguments to buttress their claim that the second amendment applies to the states. They contend that: (1) Presser is no longer good law because later Supreme Court cases in-corporating other amendments into the fourteenth amendment have effectively overruled Presser, Reichert br. at 52; (2) Presser is illogical, Quilici br. at 12; and (3) the entire Bill of Rights has been implicitly incorporated into the fourteenth amendment to apply to the states, Reichert br. at 48-52.

None of these arguments has merit. First, appellants offer no authority, other than their own opinions, to support their arguments that Presser is no longer good law or would have been decided differently today. Indeed, the fact that the Supreme Court continues to cite Presser, Malloy v. Hogan, 378 U.S. 1, 4 n. 2, 84 S.Ct. 1489, 1491 n. 2, 12 L.Ed.2d 653 (1964), leads to the opposite conclusion. Second, regardless of whether appellants agree with the Presser analysis, it is the law of the land and we are bound by it. Their assertion that Presser is illogical is a policy matter for the Supreme Court to address. Finally, their theory of implicit incorporation is wholly unsupported. The Supreme Court has specifically rejected the proposition that the entire Bill of Rights applies to the states through the fourteenth amendment. Adamson v. California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903 (1947), overruled on other grounds, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937); Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 (1908).

Since we hold that the second amendment does not apply to the states, we need not consider the scope of its guarantee of the right to bear arms. For the sake of completeness, however, and because appellants devote a large portion of their briefs to this issue, we briefly comment on what we believe to be the scope of the second amendment.

The second amendment provides that “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.” U.S. Const, amend. II. Construing this language according to its plain meaning, it seems clear that the right to bear arms is inextricably connected to the preservation of a militia. This is precisely the manner in which the Supreme Court interpreted the second amendment in United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939), the only Supreme Court case specifically addressing that amendment’s scope. There the Court held that the right to keep and bear arms extends only to those arms which are necessary to maintain a well regulated militia.

In an attempt to avoid the Miller holding that the right to keep and bear arms exists only as it relates to protecting the public security, appellants argue that “[t]he fact that the right to keep and bear arms is joined with language expressing one of its purposes in no way permits a construction which limits or confines the exercise of that right.” Reichert br. at 35. They offer no explanation for how they have arrived at this conclusion. Alternatively, they argue that handguns are military weapons.⁸ Stengl’s br. at 11-13. Our reading of Miller convinces us that it does not support either of these theories. As the Village correctly notes, appellants are essentially arguing that Miller was wrongly decided and should be overruled. Such arguments have no place before this court. Under the controlling authority of Miller we conclude that the right to keep and bear handguns is not guaranteed by the second amendment.⁹

Because the second amendment is not applicable to Morton Grove and because possession of handguns by individuals is not part of the right to keep and bear arms, Ordinance No. 81-11 does not violate the second amendment.

IV

Finally, we consider whether Ordinance No. 81-11 violates the ninth amendment. Appellants argue that, although the right to use commonly-owned arms for self-defense is not explicitly listed in the Bill of Rights, it is a fundamental right protected by the ninth amendment. Citing no authority which directly supports their contention, they rely on the debates in the First Congress and the writings of legal philosophers to establish that the right of an individual to own and possess firearms for self-defense is an absolute and inalienable right which cannot be impinged.

Since appellants do not cite, and our research has not revealed, any Supreme Court case holding that any specific right is protected by the ninth amendment, appellants’ argument has no legal significance. Appellants may believe the ninth amendment should be read to recognize an unwritten, fundamental, individual right to own or possess firearms; the fact remains that the Supreme Court has never embraced this theory.¹⁰

V

Reasonable people may differ about the wisdom of Ordinance No. 81 — 11. History may prove that the Ordinance cannot effectively promote peace and security for Morton Grove’s citizens. Such issues, however, are not before the court. We simply hold the Ordinance No. 81-11 is a proper exercise of Morton Grove’s police power and does not violate art. I, § 22 of the Illinois Constitution or the second, ninth, or fourteenth amendments of the United States Constitution. Accordingly, the decision of the district court is

Affirmed.

1 . Ordinance No. 81-11, in pertinent part, provides:

AN ORDINANCE REGULATING THE POSSESSION OF FIREARMS AND OTHER DANGEROUS WEAPONS

Whereas, it has been determined that in order to promote and protect the health and safety and welfare of the public it is necessary to regulate the possession of firearms and other dangerous weapons, and

Whereas, the Corporate Authorities of the Village of Morton Groye have found and determined that the easy and convenient availability of certain types of firearms and weapons have increased the potentiality of firearm related deaths and injuries, and

Whereas, handguns play a major role in the commission of homicide, aggravated assault, and armed robbery, and accidental injury and death.

Now, Therefore, Be It Ordained By The President And Board Of Trustees Of The Village Of Morton Grove, Cook County, Illinois, As Follows:

Section 1: The Corporate Authorities do hereby incorporate the foregoing Whereas clauses into the Ordinance, thereby making the findings as hereinabove set forth.

Section 2: That Chapter 132 of the Code of Ordinances of the Village of Morton Grove be and is hereby amended by the addition of the following section:

“Section 132.102. Weapons Control

(A) Definitions:

Firearm: “Firearm” means any device, by whatever name known, which is designed to expel a projectile or projectiles by the action of an explosion, expansion of gas or escape of gas; excluding however;

(1) Any pneumatic gun, spring gun or B-B gun which expels a single globular projectile not exceeding .18 inches in diameter.

(2) Any device used exclusively for signal-ling or safety and required or recommended by the United States Coast Guard or the Interstate Commerce Commission.

(3) Any device used exclusively for the firing of stud cartridges, explosive rivets or similar industrial ammunition.

(4) An antique firearm (other than a machine gun) which, although designed as a weapon, the Department of Law Enforcement of the State of Illinois finds by reason of the date of its manufacture, value, design and other characteristics is primarily a collector’s item and is not likely to be used as a weapon.

(5) Model rockets designed to propel a model vehicle in a vertical direction.

Handgun: Any firearm which (a) is designed or redesigned or made or remade, and intended to be fired while held in one hand or (b) having a barrel of less than 10 inches in length or (c) a firearm of a size which may be concealed upon the person.

Person: Any individual, corporation, company, association, firm, partnership, club, society or joint stock company.

Handgun Dealer: Any person engaged in the business of (a) selling or renting handguns at wholesale or retail (b) manufacture of handguns (c) repairing handguns or making or firing special barrels or trigger mechanisms to handguns.

Licensed Firearm Collector: Any person licensed as a collector by the Secretary of the Treasury of the United States under and by virtue of Title 18, United States Code, Section 923.

Licensed Gun Club: A club or organization, organized for the purpose of practicing shooting at targets, licensed by the Village of Morton Grove under Section 90.20 of the Code of Ordinances of the Village of Morton Grove.

(B) Possession:

No person shall possess, in the Village of Morton Grove the following:

(1) Any bludgeon, black-jack, slug shot, sand club, sand bag, metal knuckles or any knife, commonly referred to as a switchblade knife, which has a blade that opens automatically by hand pressure applied to a button, spring, or other device in the handle of the knife, or

(2) Any weapon from which 8 or- more shots or bullets may be discharged by a single function of the firing device, any shotgun having one or more barrels less than 18 inches in length, sometimes called a sawed off shotgun or any weapon made from a shotgun, whether by alteration, modification or otherwise, if such weapon, as modified or altered has an overall length of less than 26 inches, or a barrel length of less than 18 inches or any bomb, bomb-shell, grenade, bottle or other container containing an explosive substance of over one-quarter ounce for like purposes, such as, but not limited to black powder bombs and molotov cocktails or artillery projectiles; or

(3) Any handgun, unless the same has been rendered permanently inoperative.

(C) Subsection B(l) shall not apply to or affect any peace officer.

(D) Subsection B(2) shall not apply to or affect the following:

(1) Peace officers;

(2) Wardens, superintendents and keepers of prisons, penitentiaries, jails and other institutions for the detention of persons accused or convicted of an offense;

(3) Members of the Armed Services or Reserve Forces of the United States or the Illinois National Guard, while in the performance of their official duties; and

(4) Transportation of machine guns to those persons authorized under Subparagraphs (1) and (2) of this subsection to possess machine guns, if the machine guns are broken down in a non-functioning state or not immediately accessible.

(E) Subsection B(3) does not apply to or affect the following:

(1) Peace officers or any person summoned by any peace officer to assist in making arrests or preserving the peace while he is actually engaged in assisting such officer and if such handgun was provided by the peace officer;

(2) Wardens, superintendents and keepers of prisons, penitentiaries, jails and other institutions for the detention of persons accused or convicted of an offense;

(3) Members of the Armed Services or Reserve Forces of the United States or the Illinois National Guard or the Reserve Officers Training Corps while in the performance of their official duties.

(4) Special Agents employed by a railroad or a public utility to perform police functions; guards of armored car companies; watchmen and security guards actually and regularly employed in the commercial or industrial operation for the protection of persons employed and private property related to such commercial or industrial operation;

(5) Agents and investigators of the Illinois Legislative Investigating Commission authorized by the commission to carry such weapons;

(6) Licensed gun collectors;

(7) Licensed gun clubs provided the gun club has premises from which it operates and maintains possession and control of handguns used by its members, and has procedures and facilities for keeping such handguns in a safe place, under the control of the club’s chief officer, at all times when they are not being used for target shooting or other sporting or recreational purposes at the premises of the gun club; and gun club members while such members are using their handguns at the gun club premises;

(8) A possession of an antique firearm;

(9) Transportation of handguns to those persons authorized under Subparagraphs 1 through 8 of this subsection to possess handguns, if the handguns are broken down in a non-functioning state or not immediately accessible.

(10) Transportation of handguns by persons from a licensed gun club to another licensed gun club or transportation from a licensed gun club to a gun club outside the limits of Morton Grove; provided however that the transportation is for the purpose of engaging in competitive target shooting or for the purpose of permanently keeping said handgun at such new gun club; and provided further that at all times during such transportation said handgun shall have trigger locks securely fastened to the handgun.

2 . Three amici briefs were also filed, by the Illinois State Rifle Association, the Handgun Control, Inc., and the States of Arizona, Connecticut, Hawaii, Idaho, Louisiana, Missouri, Montana, Nevada, North Carolina, Oregon and Wyoming collectively. We have considered the arguments raised in these briefs and find that, for the most part, they raise the same arguments as those raised by the parties.

However, the states’ amici curiae brief raises one issue not raised by the parties or addressed by the district court. The states argue that the district court should have abstained because the federal court may not construe a state constitutional provision when the state court has not yet had the opportunity to construe that provision. Amici Curiae br. at 8. The states admit that abstention is not required when the state constitutional provision parallels the federal constitutional provision. However, relying on Railroad Comm’n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), they assert that the state constitutional provision involved in this case is unique, and thus, the federal court should not have prematurely usurped the state’s prerogative to interpret its own constitution.

We disagree. Since abstention is not mandatory; the federal court must determine whether abstention is appropriate in a particular case. 1A Moore’s Federal Practice § 0.203[1] at 2105 (1977). Federal courts have been reluctant to abstain when fundamental rights such as voting, racial equality or rights of expression are involved. Id. at 2111-12. We consider the issue of gun control of vital importance to every citizen and, for this reason, do not believe that abstention is any more appropriate in this case than in cases where fundamental rights are involved. Moreover, the purpose of the abstention doctrine is to minimize the conflict between the federal and state systems. Railroad Comm’n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). There is no conflict here, for Morton Grove voluntarily removed this case to federal court. Accordingly, we find that the abstention doctrine has no relevance.

3 . In construing section 22, the district court also relied heavily on the constitutional debates. Appellants challenge this reliance, arguing that constitutional ambiguities are best resolved by the voters’ understanding at the time of the vote on the proposed constitution. Appellants contend that the voters’ understanding should be gleaned from: (1) the Official Explanation published prior to the ratification vote; (2) newspaper articles discussing the proposed section 22; and (3) the meaning which the voters were likely to have attributed to the term “police power.” Since the district court thoroughly analyzed, and properly rejected, this theory of statutory construction, Quilici v. Village of Morton Grove, 532 F.Supp. at 1174-75, we need not repeat that analysis here.

4 . Reichert cites Client Follow-Up Co. v. Hynes, 75 Ill.2d 208, 28 Ill.Dec. 488, 390 N.E.2d 847 (1979) to support his assertion that the district court erroneously relied on the constitutional convention debates to construe section 22. He contends that Client Follow-Up holds that constitutional convention debates are useful only when those debates demonstrate a consensus among the delegates. Reichert correctly states the Client Follow-Up holding, but ignores the fact that the Proceedings indicate a majority consensus among the delegates as to the meaning of section 22. See, e.g., 3 Proceedings 1711, 1717-19, 1818.

5 . The Proceedings are replete with other statements supporting our holding. See, for example, Delegate Foster’s statement that “we feel that under ... [section 22] . .. the state would have the right to prohibit some classes of firearms, such as war weapons, handguns, or some other category.” 3 Proceedings 1818. See also his statement immediately prior to the vote on the proposed section 22 that: “[i]t is the position of the majority that under the police power of the state, the legislature would have the authority, for example, to forbid all handguns . .. [and] it is still the position of the majority that short of an absolute and complete ban on the possession of all firearms, this provision would leave the legislature free to regulate the use of firearms in Illinois.” 3 Proceedings 1718.

6 . 111. Const. Art. VII, § 6(a) provides:

A County which has a chief executive officer elected by the county and any municipality which has a population of more than 25,-000 are home rule units. Other municipalities may elect by referendum to become home rule units. 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.

The parties do not dispute the fact that Morton Grove is a home rule unit and the court notes that, in 1980, Morton Grove passed a referendum maintaining its home rule status pursuant to 111. Const. Art. VII, § 6(a).

7 . We note that Kalodimos v. Village of Morton Grove, 81 Ch. 6424 slip op. (Cook County, 111. Jan. 29, 1982) in which Reichert was one of several plaintiffs, is consistent with our analysis here.

8 . Appellants devote a portion of their briefs to historical analysis of the development of English common law and the debate surrounding the adoption of the second and fourteenth amendments. This analysis has no relevance on the resolution of the controversy before us. Accordingly, we decline to comment on it, other than to note that we do not consider individually owned handguns to be military weapons.

9 . A similar conclusion has been reached by numerous other courts. United States v. Oakes, 564 F.2d 384 (6th Cir. 1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d 521 (1978); United States v. Warin, 530 F.2d 103 (6th Cir.), cert. denied, 426 U.S. 948, 96 S.Ct. 3168, 49 L.Ed.2d 1185 (1976); Cody v. United States, 460 F.2d 34 (8th Cir.), cert. denied, 409 U.S. 1010, 93 S.Ct. 454, 34 L.Ed.2d (1972); Stevens v. United States, 440 F.2d 144 (6th Cir.1971).

10 . Appellants also argued, in the district court, that Ordinance No. 81-11 violated the fifth amendment and is unconstitutionally vague. These arguments were not raised in this court.