UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
December 6, 1982, Decided
BAUER, Circuit Judge.
This appeal concerns the constitutionality of the Village of Morton Grove's Ordinance No. 81-11, n1 which prohibits the possession of handguns within the Village's borders.The district court held that the Ordinance was constitutional. We affirm.
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. Metler and one brought by Robert Stengl, Martin Gutenkauf, Alice Gutenkauf, Walter J. Dutchak and Geoffrey Lagonia. Plaintiffs alleged that Ordinance #81-11 violated the second, ninth and fourteenth amendments of the United States Constitution. They sought an order declaring the Ordinance unconstitutional and permanently enjoining its enforcement.
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 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 (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 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." 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 "the 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. . . ." 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. 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 incorporating other amendments into the fourteenth amendment have effectively overruled Presser, (2) Presser is illogical, and (3) the entire Bill of Rights has been implicitly incorporated into the fourteenth amendment to apply to the states..
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 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.
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 (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 "the 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." They offer no explanation for how they have arrived at this conclusion. Alternatively, they argue that handguns are military weapons. 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.
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.
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.
Accordingly, the decision of the district court is AFFIRMED.
COFFEY, Circuit Judge, dissenting.
I believe that Morton Grove Ordinance No. 81-11, as a matter of constitutional law, impermissibly interferes with individual privacy rights. I join others who throughout history have recognized that an individual in this country has a protected right, within the confines of the criminal law, to guard his or her home or place of business from unlawful intrusions. In my view, today's majority decision marks a new nadir for the fundamental principle that "a man's home is his castle." It has been said that the greatest threat to our liberty is from well-meaning, and almost imperceptible governmental encroachments upon our personal freedom. Today's decision sanctions an intrusion on our basic rights as citizens which would no doubt be alarming and odious to our founding fathers.
I find today's decision particularly disturbing as it sanctions governmental action which I feel impermissibly interferes with basic human freedoms. I cannot let this opportunity pass without expressing my concern with the erosion of these rights.
The majority cavalierly dismisses the argument that the right to possess commonly owned arms for self-defense and the protection of loved ones is a fundamental right protected by the Constitution. Justice Cardozoi defined fundamental rights as those rights "implicit in the concept of ordered liberty." Surely nothing could be more fundamental to the "concept of ordered liberty" than the basic right of an individual, within the confines of the criminal law, to protect his home and family from unlawful and dangerous intrusions.
The court today has also refused to recognize the tremendous impact of Morton Grove Ordinance No. 81-11 on personal privacy rights. There is no doubt that the right to one's privacy is afforded constitutional protection. The United States Supreme Court has repeatedly recognized a right to privacy implicit in the federal constitution.
The Morton Grove Ordinance, by prohibiting the possession of a handgun within the confines of the home, violates both the fundamental right to privacy and the fundamental right to defend the home against unlawful intrusion within the parameters of the criminal law. There is no area of human activity more protected by the right to privacy than the right to be free from unnecessary government intrusion in the confines of the home.
The unique importance of the home from time immemorial has been amply demonstrated in our constitutional jurisprudence. Among the enumerated rights in the Bill of Rights are the Third Amendment's prohibition of quartering of troops in a private house in peace-time and the right of citizens to be "secure in their . . . houses . . . against unreasonable searches and seizures . . ." guaranteed by the Fourth Amendment. As early as 1886, the United States Supreme Court recognized that the Fifth Amendment protects against all governmental invasions "of the sanctity of a man's home and the privacies of life." The First Amendment had been held to encompass the right to "privacy and freedom of association in the home." In Stanley v. Georgia, 394 U.S. 557 (1969), the Supreme Court overturned a state conviction for possession of obscene material, holding "that the First and Fourteenth Amendments prohibit making the private possession of obscene material a crime." The Supreme Court had previously held that obscenity is not protected by the First Amendment, but in Stanley the Court made a distinction between commercial distribution of obscene matter and the private possession of such materials in the home and held the Georgia statute unconstitutional because it prohibited the possession of such materials in the home. The Court recited: "For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one's privacy." The Court has made it clear that its Stanley decision was not based on the idea that obscene matter is itself protected under the right of privacy. Rather, the focus in Stanley was on the fact that the activity prohibited by the Georgia statute occurred in the privacy of the home.
The government bears a heavy burden when attempting to justify an expansion, as in gun control, of the "limited circumstances" in which intrusion into the privacy of a home is permitted.
Morton Grove has not met that heavy burden. Without question, the state may, should and has placed reasonable restrictions on the possession of handguns outside one's home to protect the public welfare. However, Morton Grove's prohibition of handgun possession within the confines of a person's own home has not been shown to be necessary to protect the public welfare and thus violates the fundamental right to privacy.
The right to privacy is one of the most cherished rights an American citizen has; the right to privacy sets America apart from totalitarian states in which the interests of the state prevail over individual rights. A fundamental part of our concept of ordered liberty is the right to protect one's home and family against dangerous intrusions subject to the criminal law. Morton Grove, acting like the omniscient and paternalistic "Big Brother" in George Orwell's novel, "1984", cannot, in the name of public welfare, dictate to its residents that they may not possess a handgun in the privacy of their home. To so prohibit the possession of handguns in the privacy of the home prevents a person from protecting his home and family, endangers law-abiding citizens and renders meaningless the Supreme Court's teaching that "a man's home is his castle."