Hamline Law Review
Symposium on Firearms Legislation and Litigation
vol. 6, no. 2. 1983: 431.
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
Municipalities and Gun Control: Handgun BansWith the exception of abortion, there is perhaps no area of law that has aroused more controversy in this century than firearms legislation. ‘Although generally described by the blanket term "gun control," firearms legislation is actually a varied and often radically different set of approaches taken by legislatures to counteract the alarming increase in gun violence. The measures adopted by legislatures are often the result of a combination of diverse opinions regarding effective methods of gun control, and varying degrees of sensitivity towards the concerns of legitimate gun owners.[1] A further complicating factor is that firearms legislation occurs at federal, state and local levels of government. Thus, in addition to questions concerning the effectiveness of the form of firearm legislation, critics of legislation will attack the appropriateness of the governmental source.
Because different communities can have strikingly different problems and demands,[2] it is arguable that local governments are the most appropriate bodies to enact legislation in this area. When a locality enacts gun legislation, it can tailor the legislation to suit, identified local needs, and experiment with different approaches to determine which approach is most effective for the particular community. However, the enactment of local firearms legislation can give rise to conflicts with pre-existing state legislation and concerns about the scope of a municipality’s power to enact ordinances under its police power.
The most radical form of municipal firearms legislation, to date, is the handgun ban.[3] Handgun bans were recently enacted in Morton Grove, Illinois, and San Francisco, California.[4] In contrast [Page 432] to licensing and other similar measures which generally permit handgun ownership unless one falls within a circumscribed category of individuals,[5] the purpose of these handgun bans is to prohibit the possession of handguns within the city limits, unless one falls within a certain category of exceptions. Both the San Francisco and Morton Grove ordinances have been subject to constitutional challenge. In Doe v. City and County of San Francisco,[6] the San Francisco ordinance was held to be void on the grounds that it conflicted with state legislation.[7] In Quilici v. Village of Morton Grove,[7] the Morton Grove ordinance was approved by both the United States District Court and Court of Appeals as a valid exercise of the municipality’s police power. The purpose of this article is to examine the preemption and police power questions as they arose in the context of the San Francisco and Morton Grove handgun bans.
SAN FRANCISCO
California municipalities act under state constitutional provisions which grant them the power to enact ordinances and regulations.[8] These provisions grant municipalities the authority to make and enforce ordinances with respect to municipal affairs,[9] but withhold the power to enact ordinances in conflict with the general laws. 10 The general laws of California include numerous statutes concerning weapons and firearms.[11] The San Francisco handgun ban was found to be void on three, grounds: it conflicted with state legislation; it concerned an area expressly preempted by state legislation; and it concerned an area impliedly preempted by state legislation.[12]
Under the San Francisco ordinance, certain individuals were allowed to keep their handguns. In general, individuals who used [Page 433] their guns in conjunction with their employment,[13] or for legitimate recreational purposes[14] or who were authorized by the state to obtain a license to carry a concealed weapon[15] were exempted from the ban. The ordinance also established procedures which allowed persons to maintain anonymity when delivering handguns to the police, and allowed the police to investigate the gun to determine whether it was needed as evidence [17] in any crime investigations. Non-compliance with the ordinance could subject an individual to misdemeanor prosecution.[18]
CONFLICT WITH STATE LAW
The court in Doe focused its analysis of the ordinance on its interaction with state legislation and determined that the two were in direct conflict. The ordinance was therefore void.[19]
In California, municipalities may legislate on matters covered by general law if the subject matter of the legislation is a municipal affair.[20] A subject is determined to be a municipal affair in light of the facts and circumstances surrounding each case.[21] Because San Francisco conceded that firearms regulation was not a municipal affair, the Doe court did not decide that issue.[22]
Municipalities may enact ordinances concerning subjects not deemed to be municipal affairs, so long as they do not conflict with [Page 434] the general law.[23] A local ordinance is in conflict with state legislation when the state has covered the field of legislation.[24] The Doe court determined that the San Francisco ordinance created a licensing scheme.[25] Since the state had covered the subject of gun licensing, [26] the ordinance conflicted with the state laws.
Two sections of the state penal code regulate firearms licensing.[27 ] The first of these allows a sheriff or police chief to license individuals to carry concealed weapons upon proof of their good moral character and a showing of good cause. The second prohibits eligible individuals[28] from being required to obtain a license to keep a concealable weapon[29] in their home or business. People licensed under State law to carry a concealed weapon were excepted from the ordinance.[30] The city attempted, by including this exception, to avoid a conflict between the ordinance and the State law. [31] However, they provided no such exception for individuals who could otherwise lawfully keep unlicensed concealable firearms in their homes. For these individuals to keep their concealable firearms under the ordinance, they would have to obtain a license, and thus fall under the ordinance’s exception. This requirement was in violation of their legal rights under state law not to have a license to keep a handgun in their homes. Thus the citizens’ choices under the San Francisco ordinance were limited to foregoing their statutory right to keep a handgun at home to remain safely within the boundaries [Page 435] of the San Francisco ordinance; or to foregoing the unlimited statutory right to keep a handgun at home, and obtaining a license.[32] Since these alternatives presented a conflict between the ordinance and the State law, the court held that the ordinance was void.
EXPRESS PREEMPTION
Doe v. City and County of San Francisco was not the first time that a California court had the opportunity to test the validity of a San Francisco gun ordinance. In Galvan v. Superior Court[33] the California Supreme Court upheld the 1968 San Francisco firearm registration ordinance against constitutional challenge.[34]
The Galvan court reached its conclusion that the ordinance was valid by engaging in two steps of analysis. The first step was to determine the exact subject matter covered by the ordinance. The 1968 ordinance required the registration of all firearms within the city of San Francisco.[35] The court distinguished gun registration from gun licensing, and concluded that the ordinance concerned only gun registration.
The second step of the court’s analysis was to determine whether the subject of gun registration was fully covered by State law. At this point the distinction between licensing and registration became important, because of the State’s broad gun licensing scheme.[36] If in the first step of the analysis the court had deter mined the subject matter of the ordinance to be licensing, a conflict with the State licensing scheme would probably have rendered the ordinance void.
The subject matter, however, was registration, and the court examined the State’s gun registration laws. Because this examination disclosed only three State laws concerning gun registration per se,[37] the court concluded that such a "limited regulation of gun registra-[Page 436] tion" did not indicate an intent on the part of the legislature to make the subject of registration one of exclusively State concern.[38] In response to the Galvan decision, in 1969 the California Legislature passed Government Code § 53071, which expressly preempted the field of gun registration and licensing.[40] Thus the San Francisco handgun ban would only be upheld if it fell outside the preempted field of gun licensing and registration.
In Doe, the city of San Francisco argued that because the ordinance regulated the possession of firearms, the ordinance fell outside the preempted field. The city found support for the distinction between registration/licensing and other gun regulations in the case of Olsen v. McGillicuddy.[41] In Olsen, the court held that the enactment by the legislature of Government Code § 53071 was not expressive of an intent to occupy the entire field of firearms legislation. It did not, for example, preclude a municipality from enacting ordinances regulating the use of firearms.[42] Furthermore, the Olsen court inferred that the legislatures failure to preempt the entire field of gun legislation at the time they passed Government Code § 53071 implied an intent to allow municipalities to enact other firearms legislation.
The Doe court recognized that Government Code § 53071 did not prevent municipalities from legislating in all areas of firearm possession.[44] The court found, however, that although on its face the ordinance purported to regulate possession, it would in effect act [Page 437] as a licensing scheme.[45] Since the state had, in Government Code § 53071, expressly preempted the entire field of firearm registration and licensing, the city was barred from legislating on the subject of possession in this manner.
IMPLIED PREEMPTION
The court in Doe concluded that the ordinance was void on theories of express preemption and direct conflict with state legislation. It further concluded that apart from those two theories, the ban was void under a theory of implied preemption.[46]
The state will be found to have impliedly preempted a subject when it has established a general scheme for the regulation of a particular subject. The court in making this determination will look at the whole purpose and scope of the legislative scheme.[47] Factors which a court will consider in its review include the completeness of state legislation on the subject, indications that the subject matter of the legislation is of paramount state concern, and the effect of the ordinance on transient state citizens.[48] In general, ordinances regulating local concerns have a strong presumption of validity.[49] Since [Page 438] San Francisco conceded that its legislation did not act in an area of solely local concern,[50] the city could not benefit from this presumption.
The analysis in a case where the municipality legislates on other than a municipal concern must focus on the state legislation, and whether a "general scheme" has been established. This analysis will include a determination of whether the state has taken a "patterned approach" in its legislation on the subject.[51] A "patterned approach" may not exist even if the state has numerous laws on the subject.[52] Without such a scheme, the state cannot be said to have impliedly preempted the field.
The court in Doe based its conclusion that the field was impliedly preempted on its reading of Penal Code § 12026 as wholly occupying the field of residential handgun possession. Since the legislature in this statute gave individuals great freedom to keep handguns in their homes, the court deduced that the state could not have intended for a municipality to enact legislation that would restrict this freedom.[53] Thus the court held that the state had established a general scheme for the regulation of residential possession of handguns, effectively precluding future municipal legislation as sweeping as the San Francisco handgun ban.
MORTON GROVE
The challenge to the Morton Grove, Illinois, handgun ordinance that was made in Quilici P. Village of Morton Grove[54] raised issues differing substantially from those raised in Doe because Illi- [Page 439] nois, unlike California, has a state constitutional provision granting citizens the right to bear arms.[55] Because the court concluded that the provision makes the individual’s right to keep and bear arms subject to the broad police power of municipalities, the ordinance was found to be valid.[56]
ILLINOIS STATE CONSTITUTIONAL ISSUES
The Morton Grove ordinance, like the San Francisco ordinance, bans possession of handguns unless an individual falls within an excepted class.[57] The excepted classes, generally, include law enforcement officers and members of the military,[58] and individuals possessing handguns for legitimate recreational purposes.[59] Like the San Francisco ordinance, the Morton Grove ordinance establishes procedures allowmg persons delivering guns to the police to remain anonymous,[60] and for police investigation of the gun to determine whether the gun is needed as evidence.[61] Individuals found in violation of the ordinance are subject to a misdemeanor penalty.[62]
The court in Quilici first had to interpret the Illinois constitutional provision, which states: "Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed."[63] The provision contains two opposing principles: the police power and an individual right. The court first examined the relationship between these opposing principles. The village argued that the provision should be read to grant a broad legislative right pursuant to the police power, and a narrow individual right. The plaintiffs urged that the opposite reading be taken.[64] Since the court determined that the provision was ambiguous in this respect, it turned to constitutional history for guidance.[65] [Page 440]
During the constitutional debates, the Bill of Rights Committee specifically addressed the issue of the tension present within the pro vision. The provision was enacted, according to the committee’s spokesperson, Leonard Foster, in order to eradicate the possibility of the enactment of a complete prohibition of all firearms.[66] During the debates, however, Foster raised the possibility that under the provision an entire class of arms, such as handguns, could be banned.[67] So long as all firearms were not banned, such a "class ban" would be valid. These statements, taken in conjunction with statements made by Foster throughout the convention describing a narrow right subject to a broad police power, [68] convinced the court to adopt that view. Further, the court was constrained to include in its analysis of the term "police power" any meanings already established in prior Illinois Supreme Court decisions.[69] The term "police power" had been defined to include a power to prohibit.[70] Thus the court concluded that the provision called for a broad police power, including the right to prohibit.
The trial court in Quilici did not question Morton Grove’s authority as a municipality to enact such an ordinance pursuant to the police power. In a brief footnote the court stated that since the original version of the constitutional provision stated "Subject only to the police power of the State. . ." the deletion of the phrase "of the [Page 441] State" for the final version of the provision implied that the power could be exercised by municipalities. The court further noted that the issue of Morton Grove’s authority to act under this police power was not raised.[71] The issue probably was not raised for two reasons. First, the Bill of Rights Committees final proposal (at which time the provision still included "Subject to the police powers of the State") stated that the police power of the provision included the exercise of that power by local governments.[72] Second, under the Illinois constitution, home rule units such as Morton Grove [73] have very broad powers.[74] Unless the Illinois General Assembly has specifically limited a subject to state control,[75] the home rule legislation is presumed to be valid.[76]
Since the right was subject to a very broad police power which was properly exercised by the village, the court concluded that the Morton Grove handgun ban did not violate the State constitutional right to bear arms.[77] This conclusion was preparatory to the court’s resolution of the issue of whether such a ban, although not violative of the state constitutional right to bear arms, was a valid exercise of the police power.[78]
In Illinois the test of the validity of a police power enactment is whether the legislation bears a "reasonable relationship" to the interest served, and whether the means adopted is "reasonable [Page 442] means."[79] The court, in reviewing a police regulation, is precluded from deciding on the actual wisdom of such a regulation.[80] The preamble to the ordinance states that the purpose of enacting the ordinance was to promote the public health, safety, and welfare through eliminating the easy availability of handguns.[81] Although this determination that prohibiting possession of handguns would be beneficial to the public health, safety, and welfare is one that many would contest, the court’s scope of review did not allow it to consider whether the relationship was a valid one. Further, Illinois courts had already established that the police power could legitimately be used to establish firearms regulations.[82] Thus, the Morton Grove Ordinance did not violate the constitutional right to bear arms, and was determined to bear a "reasonable relationship" to the public health, safety, and welfare.[83]
Upon determining that the ordinance bore a "reasonable relationship" to the ill sought to be cured, the court turned to the issue of whether the village had chosen a "reasonable method" for the solution of the problem. In determining whether a governmental body has chosen a "reasonable method" a court may not test the factual validity of the findings which support an exercise of the police power.[84] Such findings are considered to be within the exclusive domain of the legislative body.[85] The court, further, is precluded from considering whether the means chosen are the best means available.[86] The court may only determine whether the means chosen are arbitrary,[87] and if so, the legislation may be found void. In Quilici, the court determined that in light of the legislative findings by the village linking the easy availability of handguns to accidental [Page 443] injuries, the means chosen were not arbitrary, but reasonable.[88]
Since the Morton Grove handgun ban did not violate the Illinois constitutional right to bear arms, and was a proper use of the village’s police power, the court concluded that the ordinance was valid.
CONCLUSION
Since municipalities receive all their powers from the state, the authority of a municipality to enact firearms legislation is dependent upon the state. The simple fact that the state constitution grants a right to bear arms does not guarantee that the right is inviolable. As was seen in the discussion of the Morton Grove handgun ban, the constitutional right may be subject to the police power. Depending upon the court’s interpretation of "police power," the right may be seen as being either very broad or very narrow. Further, the ability of a municipality to enact such an ordinance is dependent upon the extent of the authority the state has given the municipality to act under the police power. If the police power of the state. is interpreted to allow a state handgun ban, this still does not necessarily mean a municipality will be allowed to take such extreme action. The state may have preempted the field of firearms legislation, or that part of the field relating to possession of handguns. The ordinance may interfere with an existing state statutory scheme. If any of these problems occur, the ordinance will be void.
Laura Chauss Savin
[Page 444]
APPENDIX A
ORDINANCE NO. 81-11
VILLAGE OF MORTON GROVE
AN ORDINANCE REGULATING THE
POSSESSION OF FIREARMS AND
OTHER DANGEROUS WEAPONSWHEREAS, 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 Grove 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 this 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 signalling or safety and required or recommended by the United States Coast Guard or the Interstate Commerce Commission. [Page 445]
(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.
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 fitting 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 [Page 446] barrel 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 power bombs and Molotov cocktails or artillery projectiles; or
(3) Any handgun, unless the same has been rendered permanently inoperative.
(C) Subsection B(1) 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 or the Reserve Officers Training Corps. while in the performance of their official duties.
(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 Investi- [Page 447] gating 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 Subparagraph 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.
(F) Penalty:
(1) Any person violating Section B(1) or B(2) of this Ordinance shall be guilty of a misdemeanor and shall be fined not less than $100.00 nor more than $500.00 or incarcerated for up to six months for each such offense.
(2) Any person violating Section B(3) of this Ordinance shall be guilty of a petty offense and shall be fined no less than $50.00 nor more than $500.00 for such offense. Any person violating Section B(3) of this Ordinance more than one time shall be guilty of a misdemeanor and shall be fined no less than $100.00 nor more than $500.00 or incarcerated for up to six months for each such offense.
(3) Upon conviction of a violation of Section B(1) through B(3) of this Ordinance, any weapon seized shall be confiscated by the trial court and when no longer needed for evidentiary purposes, the court may transfer such weapon to the Morton Grove Police Dept. who shall destroy them. [Page 448]
(G) Voluntary Delivery to Police Department:
(1) If a person voluntarily and peaceably delivers and abandons to the Morton Grove Police Dept. any weapon mentioned in Sections B(1) through B(3), such delivery shall preclude the arrest and prosecution of such person on a charge of violating any provision of this Ordinance with respect to the weapon voluntarily delivered. Delivery under this section may be made at the headquarters of the police department or by summoning a police officer to the persons residence or place of business. Every weapon to be delivered and abandoned to the police department under this paragraph shall be unloaded and securely wrapped in a package and in the case of delivery to the police headquarters, the package shall be carried in open view. No person who delivers and abandons a weapon under this section shall be required to furnish identification, photographs or fingerprints. No amount of money shall be paid for any weapon delivered or abandoned under this paragraph.
(2) Whenever any weapon is surrendered under this section, the police department shall inquire of all law enforcement agencies whether such weapon is needed as evidence and if the same is not needed as evidence, it shall be destroyed.
(H) All weapons ordered confiscated by the court under the provisions of Section F(3) and all weapons received by the Morton Grove Police Department under and by virtue of Section G shall be held and identified as to owner, where possible, by the Morton Grove Police Department for a period of five years prior to their being destroyed.
(I) Construction:
Nothing in this Ordinance shall be construed or applied to necessarily require or excuse non compliance with a provision of the laws of the State of Illinois or of the laws of the United States. This Ordinance and the penalties proscribed for violation hereof, shall not supersede, but shall supplement all statutes of the State of Illinois or of the United States in which similar conduct may be prohibited or regulated.
(J) Severability:
If any provisions of this Ordinance or the application thereof to any person or circumstance is held invalid, the remainder of this Ordinance and the applicability of such provision to other persons not similarly situated or to other circumstances shall not be affected thereby. [Page 449]
(K) The provisions of this Ordinance shall take effect ninety (90) days from and after its passage, approval and publication in pamphlet form according to law."
SECTION 3: That this Ordinance shall be published in pamphlet form. Said pamphlet shall be received as evidence of the passage and legal publication of this Ordinance. [Page 450]
APPENDIX B
SAN FRANCISCO, CAL., POLICE CODE ART. 35 (1982)
FILE NO. 175-82-1 Amended in Public Protection
Committee 6/10/82
ORDINANCE NO. __________(Handguns)
AMENDING PART II, CHAPTER VIII OF THE SAN FRANCISCO MUNICIPAL CODE (POLICE CODE) BY ADDING ARTICLE 35 THERETO FOR CONTROL OF THE POSSESSION OF HANDGUNS.
NOTE: ALL SECTIONS ARE ADDITIONS AND THEREFORE NOT UNDERLINED.
Be it ordained by the People of the City and County of San Francisco:
Section 1. Part II, Chapter VIII of the San Francisco Municipal Code (Police Code) is hereby amended by adding Article 35 thereto, to read as follows:
ARTICLE 35
Section 3500. Findings
(A) It has been determined that in order to promote and to protect health and safety and welfare of the public, it is necessary to regulate the possession of handguns.
(B) The easy and convenient availability of handguns has been a principal factor in firearm-related deaths in the City and County of San Francisco.
(C) Handguns which are possessed by law abiding citizens are frequently stolen and used in criminal activities.
(D) Handguns play a major role in the commission of crimes of homicide, robbery, assault and in many instances of accidental death and injuries.
Section 3501. Control of Handguns
This article shall be known as "The Handgun Control Ordinance."
Section 3502. Definitions
(A) "Handgun," as used in this article, means any "pistol," "revolver," and "firearm capable of being concealed upon the person" which is designed to be used as a weapon from which is ex- [Page 451] pelled a projectile by the force of any explosion or other form of combustion, and which has a barrel less than twelve (12) inches in length. "Pistol," "revolver," and "firearm capable of being concealed upon the person" as used in this article shall include the frame or receiver of any such weapon.
The above definition shall not include any muzzle loading, smooth bore firearm which is possessed as a collector’s item.
(B) "Person," as used in this article, means any individual, corporation, company, association, firm, partnership, retail dealer, wholesale dealer, club, society or joint stock company.
Section 3503. Possession of Handguns Prohibited
It shall be unlawful for any person to possess, within the City and County of San Francisco, any handgun.
Section 3504. Penalty
Any person who shall violate any of the provisions of Section 3503 of this Article shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished by imprisonment in the county jail for not less than thirty (30) days nor more than six (6) months.
Section 3505. Grace Period for Lawfully Possessed Handguns
Any person who is in lawful possession of a handgun, at the time of the effective date of this ordinance, may continue to possess that handgun for a period of ninety (90) days after the effective date of this ordinance.
Section 3506. Confiscation and Destruction of Handguns
Upon conviction of a violation of the provisions of this article, any handgun which was the subject of the violation shall be ordered confiscated and the Police Department shall be directed to destroy the handgun.
Section 3507. Persons Excepted from this Article’s Prohibitions
Section 3503 shall not apply to any of the following:
(A) Peace officers listed in Sections 830.1, 830.2, 830.3, 830.31, 830.4, 830.5, and 830.6 of the Penal Code whether active or honorably retired, other duly appointed peace officers, full-time paid peace officers of other states and the federal government who are carrying out official duties while in California, or any person summoned by any such officers to assist in making arrests or preserving the peace while such person is actually engaged in assisting such officer.
(B) Members of the military forces of this state or of the United States while engaged in the performance of their duties. [Page 452]
(C) Persons who are using handguns while on the premises of licensed target ranges for the purpose of practice shooting or who are members of licensed shooting clubs while such persons are hunting on the premises of such clubs; provided such ranges and clubs keep such handguns stored in safe places on the premises at all times when the handguns are not being used.
(D) Persons transporting handguns from a licensed target range or licensed shooting club to another licensed target range or licensed shooting club and persons transporting handguns from a licensed retailer to a licensed target range or licensed shooting club, provided, however, that the transportation is for the purpose of practice shooting or hunting or for the purpose of permanently keeping the transported handgun on the premises of the other range or club; and provided that at all times during such transportation, each handgun shall have a trigger lock securely fastened upon it.
(E) Any person licensed as a collector of firearms by the Secretary of the Treasury of the United States under Title 18, United States Code, Section 923 and who is in lawful possession of firearms classified as curious or relics under 18 U.S.C. Chapter 44.
(F) Persons who are authorized to carry handguns pursuant to Article 3 (commencing with Section 12050) of Chapter I of Title 2 of Part 4 of the Penal Code, and persons who are authorized to sell handguns pursuant to Penal Code Section 12070.
(G) Armored vehicle guards, as defined in Section 7521 of the Business and Professions Code, (A) if hired prior to January 1, 1977; or (B) if hired on or after such date, if they have received a Firearms Qualifications Card from the Department of Consumer Affairs, in each case while acting within the course and scope of their employment.
(H) Any of the following persons who have completed a regular course in firearms training approved by the Commission on Peace Officer Standards and Training.
(1) Patrol special police officers and assistant patrol special police officers who have been appointed in accordance with the laws of the City and County of San Francisco;
(2) Animal control officers or zookeepers, regularly compensated as such by a governmental agency when acting in the course and scope of their employment;
(3) Persons who are authorized to carry handguns pursuant to Section 607f of the Civil Code, while actually engaged in the performance of their duties pursuant to such section; [Page 453]
(4) Harbor police designated pursuant to Section 663.5 of the Harbors and Navigation Code.
(I) Any of the following persons who have been issued a Certificate pursuant to Section 12033 of the Penal Code:
(1) Guards or messengers of common carriers, banks, and other financial institutions while actually employed in and about the shipment, transportation, or delivery of any money, treasure, bullion, bonds, or other thing of value within this state.
(2) Guards of contract carriers operating armored vehicles pursuant to California Highway Patrol and Public Utilities Commission authority (i) if hired prior to January 1, 1977; or (ii) if hired on or after January 1, 1977, if they have completed a course in the carrying and use of firearms which meets the standards in prescribed by the Department of Consumer Affairs.
(3) Private investigators, private patrol operators, and alarm company operators who are licensed pursuant to Chapter II (commencing with Section 7500) of Division 3 of the Business and Professions Code, while acting within the course and scope of their employment.
(4) Uniformed security guards or night guards employed by any public agency, while acting within the scope and in the course of their employment.
(5) Uniformed security guards, regularly employed and compensated as such by persons engaged in any lawful business, while actually engaged in protecting and preserving the property of their employers and uniformed alarm agents employed by an alarm company operator while on duty.
(6) Uniformed employees of private patrol operators and uniformed employees of private investigators licensed pursuant to Chapter II (commencing with Section 7500) of Division 3 of the Business and Professions Code, while acting within the course and scope of their employment.
(J) Any person en gaged in any lawful business, including a non-profit organization, or any officer, employee, or agent authorized by such person for lawful purposes connected with such business, possessing a handgun within such person’s fixed place of business.
Section 3508. Voluntary Delivery of Handguns to the Police Department
No person shall be in violation of this article who voluntarily delivers and abandons to the Police Department of the City and County of San Francisco, any handgun, provided the handgun is [Page 454] unloaded and wrapped in a package and the package is carried in open view during transportation.
Section 3509. Place of Delivery
Delivery and abandonment of handguns under this article may be made at any police station or by summoning a police officer to the premises in which the handgun is kept.
Section 3510. No Requirement, to Furnish Information on Voluntary Delivery and Abandonment of Handguns
No person who delivers and abandons a handgun in accordance with Sections 3508 and 3509 of this article shall be required to show identification, nor to be photographed, nor to be fingerprinted, nor to furnish any information at the time -of delivery of the handgun.
Section 3511. Duty of Police Department to Conduct Weapons Investigation and to Destroy Handguns
Whenever any handgun is delivered and abandoned or is confiscated under this article, the Police Department shall investigate as to whether the handgun is needed as evidence in any proceeding and if the handgun is not needed as evidence, the police shall destroy the handgun.
Section 3512. Saving Clause: Invalidity of Part of Article Not to Affect Remainder
If any section, subsection, sentence, clause or phrase of this article is for any reason held to be unconstitutional, or invalid, such decision shall not affect the validity of the remaining portions of this article. The Board of Supervisors hereby declares that it would have passed this article and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared unconstitutional.
Footnotes:1. Some of the different approaches to firearms legislation include: registration, a way for the governmental body to collect empirical information about the gun itself, licensing, which requires persons who seek to own guns to meet legislatively determined qualifications; the imposition of additional criminal penalties when a crime is committed with a gun; and general regulations.
2. "[P]roblems with firearms are likely to require different treatment in San Francisco County than in Mono county." Galvan v. Superior Court, 70 Cal. 2d 851, 860,452 P.2d 930, 938, 76 Cal. Rptr. 642, 650 (1969).
3. Another radical ordinance, but taking the opposite approach, was enacted in Kennesaw, Georgia. The Kennesaw ordinance requires all heads of households to maintain guns and ammunition. N.Y. Times, March 17, 1982 at 18, col. I.
4. VILLAGE OF MORTON GROVE, ILL., CODE OF ORDINANCE § 132-102 (1982); SAN FRANCISCO, CAL., POLICE CODE art. 35 (1982). The text of both ordinances is reproduced in the appendix.
5. See supra note 1.
6. 136 Cal. App. 3d 509, 186 Cal. Rptr. 380 (Cal. Ct. App. 1982).
7. 532 F. Supp. 1169 (N.D. Ill. 1981), aff’d, 695 F.2d 261 (7th Cir. 1982).
8. See, e.g., CAL. CoNsT. art. XI, § 7: "A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws."
9. CAL. CoNsT. art. XI, § 5 (a): "It shall be competent in any city charter to provide that the city governed thereunder may make and enforce all ordinances and regulations in respect to municipal affairs . . . ."
10. See supra note 8.
11. See CAL. PENAL CODE 12000-601 (West 1982).
12. Doe v. City and County of San Francisco, 136 Cal. App. 3d 509, 186 Cal. Rptr. 380 (1982).
13. SAN FRANCISCO, CAL., POLICE CODE art. 35, § 3507(A), (B), (G), (H), (1), (J).
14. Id. at § 3507(C), (D), (E).
15. Id. at § 3507.
16. Id. at §§ 3508,3509,3510.
17. Id. at § 3511.
18. Id. at § 3504.
19. "[T]he local ordinance is . . . invalid if it conflicts with a law passed by the state Legislature." Doe, 136 Cal. App. 3d at 517, 186 Cal. Rptr. at 385.
20. CAL. CONST. art. XI, § 5 (a): "It shall be competent in any city charter to provide that the city governed thereunder may make and enforce all ordinances and regulations in respect to municipal affairs . . . ."
21. Doe, 136 Cal. App. 3d at 509, 186 Cal. Rptr. at 381 (1982); Bishop v. City of San Jose, 1 Cal. 3d 56, 62, 460 P.2d 137, 141, 81 Cal. Rptr. 465, 469 (1969).
22. 136 Cal. App. 3d at 513, 186 Cal. Rptr. at 382. The chief reason behind this concession was probably the adverse effect the ordinance was likely to have on transients. "Clearly, the Handgun Ordinance, which prohibits possession by both residents and those passing through San Francisco, legislates in an area of state concern. [Citations omitted] It affects not just persons living in San Francisco, but transients passing through and residents of nearby cities where San Franciscos handguns might be sold." Id. at 511, 186 Cal. Rptr. at 382. Compare with Galvan v. Superior Court, 70 Cal. 2d 851, 869, 452 P.2d 930, 939, 76 Cal. Rptr. 642, 651 (1969) holding that the 1968 San Francisco gun registration ordinance did not place an undue burden on transients because of the seven-day grace period. Galvan is discussed infra at text accompanying notes 33-40.
23. See supra note 8.
24. "It is the general rule that where the state law so covers the entire field that there is no room for municipal regulation, the latter regulations are necessarily in conflict with the state law." Natural Milk Producers Ass’n v. City and County of San Francisco, 20 Cal.2d 101, 124 P.2d 25, 30 (1942). See Galvan, 70 Cal. 2d at 857, 452 P.2d at 935, 76 Cal. Rptr. At 648.
25. Doe, 136 Cal. App. 3d at 517, 186 Cal. Rptr. at 384.
26. The California Supreme Court strongly suggested in Galvan that the state had fully occupied the field of gun licensing. Galvan, 70 Cal. 2d at 863, 452 P.2d at 935, 76 Cal. Rptr. at 648.
27. CAL. PENAL CODE § 12026 (West 1953); CAL. PENAL CODE § 12050 (West 1982).
28. See generally CAL. PENAL CODE § 12021 (West 1982) (enumerating those persons not eligible to obtain a license: persons convicted of a felony under the laws of the United States or California; persons addicted to the use of any narcotic drug).
29. CAL. PENAL CODE § 12001 (West 1982) indicates that a handgun or pistol is a concealable firearm since it is a "device, designed to be used as a weapon, from which is expelled a projectile by the force of any explosion, or other form of combustion, and which has a barrel less than 12 inches in length."
30. SAN FRANCISCO, CAL, POLICE CoDE art. 35 § 3507(F) (1982).
31. "The City and County of San Francisco argues that its ordinance merely acknowledges the supremacy of state law in the area of permits and licenses and exempts state-licensed persons from the local regulation." Doe, 136 Cal. App. 3d at 517, 186 Cal. Rptr. At 384.
32. A third option for a citizen would be to keep a handgun at home within his or her statutory right, acting in disregard of the ordinance.
33. 70 Cal. 2d 852, 452 P.2d 930, 76 Cal. Rptr. 642 (1969).
34. The 1968 ordinance was attacked on the grounds that it conflicted with state law, acted in a field preempted by the state, and violated the second, fifth and fourteenth amendments to the United States Constitution. Id. at 857, 452 P.2d at 933, 76 Cal. Rptr. at 645.
35. SAN FRANCISCO, CAL POLICE CODE § 175-68 (amended and renumbered 236-68 in 1978): "It shall be unlawful for any person within the City and County of San Francisco to own or possess or to have under his custody or control any firearm unless said firearm is registered as provided in this Article."
36. See supra text accompanying notes 27-29.
37. The registration provisions discussed in Galvan all related to sales of weapons. 70 Cal. App. 2d at 860, 864, 452 P.2d at 934, 936, 76 Cal. Rptr. at 646, 648.
38. Id. at 860, 452 P.2d at 938, 76 Cal. Rptr. at 650.
39. "[I]n reaction to Galvan the Legislature expressly preempted the area of registration which San Francisco had attempted to enter." Doe, 136 Cal. App. 3d at 511, 186 Cal. Rptr. at 383.
40. "it is the intention of the Legislature to occupy the whole field of regulation of the registration or licensing of commercially manufactured firearms as encompassed by the pro, visions of the Penal Code, and such provisions shall be exclusive of all local regulations, relating to registration or licensing of commercially manufactured firearms, by any political subdivision . . . ." CAL. GOV’T CODE § 53071 (Doering 1974).
41. 15 Cal. App. 3d 897, 93 Cal. Rptr. 530 (1971).
42. Id. at 902, 93 Cal. Rptr. at 532. In Olsen the defendants in a negligence action sought to exclude an ordinance as evidence of negligence per se on the ground that the ordinance was invalid since it acted in an area preempted by the state. The ordinance in question prohibited parents from allowing their minor children to Possess or fire BB guns within the city limits.
43. "Despite the opportunity to include an expression of intent to occupy the entire field of firearms, the legislative intent was limited to registration and licensing. We infer from this limitation that the legislature did not intend to exclude municipalities from enacting further legislation concerning the use of firearms." Id. at 902, 93 Cal. Rptr. at 532, Doe, 136 Cal. App. 3d at 513, 186 Cal. Rptr. at 384.
44. "[T]he Legislature has not prevented local governmental bodies from regulating all aspects of the possession of firearms." Doe, 136 Cal. App. 3d at 516, 186 Cal. Rptr. at 384.
45. "[I]n substance it creates a licensing requirement where one had not previously existed." 136 Cal. App. 3d at 517, 186 Cal. Rptr. at 384. See supra note 32 and accompanying text.
46. "If we were to find in the San Francisco Handgun Ordinance no ‘licensing’ requirement within the express wording of Government Code section 53071 and Penal Code section 12026, we would stiff reach the conclusion that state law preempts the San Francisco ordinance under the theory of implied preemption." 136 Cal. App, 3d at 518, 186 Cal. Rptr. at 385.
47. Gluck v. County of Los Angeles, 93 Cal. App. 3d 121, 126, 155 Cal. Rptr. 435,440 (1979); Olsen v. McGillicuddy, 15 Cal. App. 3d 897, 901, 93 Cal. Rptr. 530, 532 (1971); Galvan, 70 Cal. 2d at 856, 452 P.2d at 935, 76 Cal. Rptr. at 647 (1969); In re Lane, 58 Cal. 2d 99, 372 P.2d 897, 899, 22 Cal. Rptr. 857, 859 (1962).
48. [C]hartered counties and cities have fun power to legislate in regard to municipal affairs unless: (1) the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern; (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action; or (3) the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the municipality. In re Hubbard, 62 Cal. App. 2d 119, 128, 396 P.2d 809, 814-15, 41 Cal. Rptr. 393, 398-99 (1964) (overruled by Bishop v. City of San Jose, 1 Cal. 3d 56, 460 P.2d 137, 81 Cal. Rptr. 465, (1969) on the point that the court, not the legislature, ultimately determines what constitutes a municipal affair).
49. "[I]f there is a significant local interest to be served which may differ from one locality to another then the presumption favors the validity of the local ordinance against an attack of state preemption." Gluck, 93 Cal. App. 3d at 133, 155 Cal. Rptr. at 441.
50. See supra note 22.
51. "The task is . . . to determine [whether the area of state legislation] is sufficiently logically related so that a court or a local legislative body can detect a patterned approach to the subject." Galvan, 70 Cal. App. 2d at 865, 452 P.2d at 937, 76 Cal. Rptr. at 649.
52. See, eg., Eckl v. Davis, 51 Cal. App. 3d 831, 124 Cal. Rptr. 685 (1975) (where state law proscribed sexually motivated nudity, city could prohibit nudity not so motivated in an ordinance barring nudity at public beaches); In re Cox, 3 Cal. 3d 205, 90 Cal. Rptr. 24, 474 P.2d 992 (1970) (where state had enacted a variety of statutes regulating trespassory conduct, but had expressly granted authority to localities to regulate traffic in their own public areas, municipality could enact an ordinance prohibiting people from remaining on private property after being asked to leave by the property owner); Galvan, 70 Cal. 2d 852, 452 P.2d 930, 76 Cal. Rptr. 642 (1969) (where state had legislated broadly in the area-of firearms regulation, city could enact handgun registration ordinance); In re Hubbard, 62 Cal. 2d 119, 3% P.2d 809, 41 Cal. Rptr. 393 (1964) (where state gambling statute prohibited 12 specific games, and any banking or percentage game, it did not preempt the field of gambling, and Long Beach ordinance outlawing "games of chance" could stand).
53. "It strains reason to suggest that the state Legislature would prohibit licenses and permits but allow a ban on possession." Doe, 136 Cal. App. 3d at 518, 186 Cal. Rptr. at 385.
54. 532 F. Supp. 1169 (N.D. III. 1981), aff’d, 695 F.2d 261 (7th Cir. 1982).
55. "Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed." ILL. CoNsT. art. I § 22.
56. The plaintiffs also challenged the ordinance on the grounds that it violated the second, fifth, ninth and fourteenth amendments to the United States Constitution.
57. The Morton Grove ordinance did not ban only handguns, but other weapons as Well. See MORTON GROVE, ILL., CODE OF ORDINANCES § 132.102(B)(1) & (2) (1982). Only the application of the ordinance to handguns will be discussed in this article.
58. MORTON GROVE, ILL., CODE OF ORDINANCES § 132.102(E)(1), (2), (3), (4), (5) (1982).
59. Id at (E)(6), (7), (8), (10).
60. Id at (G)(1).
61. Id at (G)(2).
62. Id at (F)(1), (2).
63. ILL CoNsT. art. 1, § 22.
64. 532 F. Supp. at 1172 (N.D. Ill. 1981).
65. "Because the language contained in section 22 itself offers no clue as to the proper reconciliation of these two competing concepts, the court finds it necessary to examine the provision’s constitutional history, the source traditionally relied upon for the clarification of ambiguous constitutional provisions." Id. at 1172.
66. "‘Laws that attempted to ban all possession or use of such arms [commonly used by law-abiding persons for recreation or self-protection) or laws that subjected possession or use of such arms to regulations so onerous that all possession or use was effectively banned, would be invalid." Vol. 3, Record of Proceedings, Sixth Illinois Constitutional Convention 87 [hereinafter referred to as Proceedings). See Quilici, 5 32 F. Supp. at 1172-73, 695 F.2d at 267.
67. "It is the position of the majority that under the police power of the state, the legislature would have the authority, for example, to forbid an handguns. [citation omitted]" Quilici, 695 F.2d at 267 n.6 (quoting Proceedings, supra note 66, at 1718).
68. "[Foster] indicated clearly in his remarks that . . . [the] provision was intended to be construed narrowly, and fully subject to the broad police power." Quilici, 532 F. Supp. at 1173.
69. "Sound principles of construction require that ‘in those instances in which [the Illinois Supreme Court], prior to the adoption of the constitution of 1970, has defined a term found therein, that it be given the same definition, unless it is clearly apparent that some other meaning was intended." Id. at 1175 (footnote omitted) (quoting Bridgewater v. Hotz, 51 Ill. 2d 103, 109, 281 N.E.2d 317, 321 (1972)).
70. Id. at 1176, 1179; 695 F.2d at 26. "In the exercise of its inherent police power the legislature may enact laws regulating, restraining or PROHIBITING anything harmful to the welfare of the people . . . ... People v. Warren, 11 Ill. 2d 420,424-25, 143 N.E.2d 28, 31-32 (1957)(emphasis added).
71. "In order to avoid any possible question as to whether the police power could be exercised by local governments, the delegates ultimately amended the proposed provision to delete the words ‘of the state’ from the clause ‘Subject only to the police power.’ No challenge has been raised in this case regarding Morton Groves ability as a local government to exercise that power." Quilici 532 F. Supp. at 1172 n. 2.
72. "This reference to the police power ‘of the State’ of course also includes an exercise of police power by cities and villages or other instrumentalities of government to whom state power has been validly delegated." Proceedings, supra note 66, at 91.
73. Morton Grove became a home rule unit in 1980. Quilici, 695 F.2d at 268 n.6.
74. [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. . . " ILL. CoNsT. art. 7, § 6(a). "Powers and functions of home rule units shall be construed liberally." ILL. CONST. art. 7, § 6(m).
75. "Home rule units may exercise and perform concuffently with the state any power or function of a home rule unit to the extent that the General Assembly by law does not specifically limit the concurrent exercise or specifically declare the States exercise to be exclusive." ILL. CONST. art. 7, § 6(i).
76. "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." Quilici, 695 F.2d at 268.
77. Id. at 10; Quilici 532 F. Supp. at 1176.
78. Quilici 532 F. Supp. at 1176, 695 F.2d at 267.
79. Quilici, 532 F. Supp. at 1177 (N.D. Ill. 1981); City of Carbondale v. Brewster, 78 Ill. 2d 111, 398 N.E.2d 829 (1979), appeal dismissed, 446 U.S. 931 (1980).
80. "The court will not disturb a police regulation merely where there is room for a difference of opinion as to its wisdom, necessity and expediency." Quilici, 532 F. Supp. at 1177); City of Carbondale v. Brewster, 78 Ill. 2d 111, 114-15, 398 N.E.2d 829, 831 (1979), appeal dismissed, 446 U.S. 931 (1980).
81. Quilici, 532 F. Supp. at 1177, See Preamble to Morton Grove ordinance, infra at Appendix A.
82. Id; Rawlings v. Illinois Dept. of Law Enforcement, 73 Ill. App. 3d 267,391 N.E.2d 758 (1979); People v. Williams, 60 Ill. App. 3d 726, 377 N.E.2d 285 (1978).
83. Quilici, 532 F. Supp. at 1177.
84. See supra note 82.
85. Quilici, 532 F. Supp. at 1178, Brown v. City of Chicago, 42 Ill. 2d 501, 507, 250 N.E.2d 129,132-33 (1969).
86. "[T]he court is not to decide whether the means selected by the legislature are the best way to deal with the perceived problem or whether other alternatives available would have been better." Quilici, 532 F. Supp. at 1178.
87. Id.
88. Id. at 1179; 695 F.2d at 269.