                           ILLINOIS OFFICIAL REPORTS
                                           Supreme Court




                           Wilson v. County of Cook, 2012 IL 112026




Caption in Supreme         MATTHEW D. WILSON et al., Appellants, v. THE COUNTY OF
Court:                     COOK et al., Appellees.



Docket No.                 112026
Filed                      April 5, 2012


Held                       A facial second amendment challenge to an assault weapons ban should
(Note: This syllabus       not have been dismissed at the pleading stage where there were empirical
constitutes no part of     questions, beyond the scope of the record and judicial notice, as to
the opinion of the court   whether assault weapons, as defined, were within or beyond the
but has been prepared      amendment’s protection.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Appellate Court for the First District; heard in that court
Review                     on appeal from the Circuit Court of Cook County, the Hon. Mary K.
                           Rochford, Judge, presiding.


Judgment                   Affirmed in part and reversed in part.
                           Cause remanded.
Counsel on   Victor D. Quilici, of River Grove, Edward Ronkowski, of Mokena, and
Appeal       Stephen P. Halbrook, of Fairfax, Virginia, for appellants.

             Anita Alvarez, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Paul
             A. Castiglione and Marilyn Fusco Schlesinger, Assistant State’s
             Attorneys, of counsel), for appellees.

             William N. Howard and Garry L. Wills, of Freeborn & Peters, of
             Chicago, for amicus curiae Certain Illinois Legislators.

             Charles Wm. Dobra, of Roselle, and Joseph M. Hickson III, of the
             Hickson Law Group, P.C., of Springfield, Massachusetts, for amicus
             curiae Commonwealth Second Amendment, Inc.

             James R. Thompson, Matthew R. Carter and Rebecca S. Bradley, of
             Winston & Strawn LLP, of Chicago, for amicus curiae The Illinois
             Firearms Manufacturers Association.

             Stephen A. Kolodziej, of Brenner, Ford, Monroe & Scott, Ltd., of
             Chicago, and Charles J. Cooper, David H. Thompson and Peter A.
             Patterson, of Cooper & Kirk, PLLC, of Washington, D.C., for amicus
             curiae The National Rifle Association of America, Inc.

             James B. Vogts, of Swanson, Martin & Bell, LLP, of Chicago, for amicus
             curiae National Shooting Sports Foundation, Inc.

             Benjamin Blustein and Nancy L. Maldonado, of Miner, Barnhill &
             Galland, PC, of Chicago, and Paul R.Q. Wolfson, Joshua M. Salzman,
             Laura Moranchek Hussain and Francesco Valentini, of Wilmer Cutler
             Pickering Hale & Dorr, LLP, and Jonathan E. Lowy and Daniel R. Vice,
             all of Washington, D.C., for amicus curiae Brady Center To Prevent Gun
             Violence.

             Jonathan K. Baum, Jonathan S. Feld, Bonita L. Stone, Sharyn M. Castle
             and Jessica R. Price, of Katten Muchin Rosenman LLP, of Chicago, for
             amici curiae Legal Community Against Violence et al.




                                   -2-
Justices                  JUSTICE THEIS delivered the judgment of the court, with opinion.
                          Chief Justice Kilbride and Justices Freeman, Thomas, Garman, Karmeier,
                          and Burke concurred in the judgment and opinion.



                                             OPINION

¶1        This appeal involves a challenge to the constitutionality of the Blair Holt Assault
      Weapons Ban (Cook County Ordinance No. 06-O-50 (approved Nov. 14, 2006))
      (Ordinance). Plaintiffs, Matthew D. Wilson, Troy Edhlund, and Joseph Messineo, sought a
      declaration, inter alia, that the Ordinance violates the due process and equal protection
      clauses of the United States Constitution and violates the second amendment right to bear
      arms. The circuit court of Cook County dismissed the first amended complaint, pursuant to
      section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2006)), finding that
      plaintiffs failed to state a cause of action that the Ordinance unconstitutionally infringed on
      the right to bear arms or violated principles of due process or equal protection. The appellate
      court upheld the dismissal. 407 Ill. App. 3d 759. For the following reasons, we affirm in part
      and reverse in part the judgment of the appellate court, and remand the cause to the trial court
      for further proceedings.


¶2                                       BACKGROUND
¶3                                   History of the Ordinance
¶4        For nearly two decades, Cook County has had various ordinances in place banning the
      possession of assault weapons. Beginning in 1993, based upon a finding of public health and
      welfare concerns caused by both assault weapons and firearms in general, the Cook County
      board of commissioners enacted the Cook County Firearms Dealer’s License and Assault
      Weapons and Ammunition Ban Ordinance (Cook County Ordinance No. 93-O-37 (approved
      Jan. 1, 1994)). The law prohibited the sale, transfer, acquisition, ownership, or possession
      of “assault weapons,” defined by a specific list of 60 rifles and pistols designated by model
      name or type, and “assault ammunition,” including any ammunition magazine having a
      capacity of more than 12 rounds of ammunition. The commissioners specifically noted in the
      prefatory clause of the ordinance that: (1) easy access to firearms and ammunition had
      become a concern of public health, safety and welfare for the citizens of Cook County; (2)
      assault weapons were 20 times more likely to be used in the commission of a crime than
      other kinds of weapons; and (3) there was “no legitimate sporting purpose for the military
      style assault weapons being used on the streets.”1


              1
               Prior to its effective date, the Ordinance was amended to remove the prohibitions relating
      to assault ammunition. Cook County Ordinance No. 93-O-46 (approved Nov. 16, 1993). The

                                                 -3-
¶5       Shortly thereafter, in 1994, after a series of hearings on the subject of semiautomatic
     assault weapons over a five-year period,2 Congress enacted the Violent Crime Control and
     Law Enforcement Act, Pub. L. 103-322, 108 Stat. 1796 (codified at 18 U.S.C. §§ 921, 922
     (1994)), including a ban on the possession of “semiautomatic assault weapons” and “large
     capacity ammunition feeding devices” not lawfully possessed as of the date of the enactment.
     18 U.S.C. §§ 921(a)(30), (a)(31), 922(v), (w) (1994). The law defined a “semiautomatic
     assault weapon” in several different ways, including a specific list of banned firearms or
     “copies or duplicates” of those firearms. In addition to banning weapons by name, the law
     banned other semiautomatic rifles, pistols and shotguns that possessed two or more specific
     characteristics that the legislature found were designed for military applications and that
     distinguished the firearms from traditional sporting weapons or those useful for self-defense.
     18 U.S.C. § 921(a)(30)(A)-(D) (1994). Congress found these features were combat-designed
     features that enabled shooters to discharge high numbers of bullets rapidly in a “spray fire”
     fashion while maintaining control of the firearm, creating enhanced lethality. H.R. Rep. No.
     103-489, at 18-20 (1994), reprinted in 1994 U.S.C.C.A.N. 1820, 1826-27. The law also
     specifically exempted a list of 661 firearms by make and model that the legislature found
     were most commonly used in hunting and recreational sports. 18 U.S.C. § 921, app. A
     (1994). The Act was written to expire 10 years after its enactment, and due to a lack of
     further congressional action, the law expired in 2004.
¶6       Thereafter, in 2006, the County sought to fill the void left by the expiration of the federal
     assault weapons ban by amending the 1993 ordinance. Currently, the ordinance expands the
     definition of assault weapon by imposing a characteristic-based test similar to the federal ban
     and by including a nonexhaustive list of various prohibited models and copies or duplicates
     thereof. Cook County Ordinance No. 06-O-50 (approved Nov. 14, 2006). The Ordinance also
     prohibits the possession of large capacity magazines with the capacity to accept more than
     10 rounds of ammunition. Id. Under its provisions, a person who prior to the enactment
     lawfully possessed assault weapons or large capacity magazines had 90 days from the
     effective date to surrender the weapons to the sheriff, to remove the weapons from the
     county, or to modify the weapons to render them inoperable or no longer defined as an
     assault weapon. Id. Violation of the Ordinance is punishable by imprisonment for not more
     than six months and by a fine between $500 and $1,000. Id. In 2007, the Ordinance was
     renamed the Blair Holt Assault Weapons Ban. Cook County Ordinance No. 07-O-36
     (approved June 19, 2007).




     Ordinance was amended again in 1999 to modify sections not at issue in this appeal and was
     renamed the Cook County Deadly Weapons Control Ordinance. Cook County Ordinance No. 99-O-
     27 (approved Nov. 23, 1999).
             2
                 See H.R. Rep. No. 103-489, at 12-20 (1994), reprinted in 1994 U.S.C.C.A.N. 1820, 1820-
     28.

                                                  -4-
¶7                                        Procedural History
¶8         In September 2007, plaintiffs filed a preenforcement action seeking declaratory and
       injunctive relief against the County, the individual commissioners of the Cook County board
       of commissioners, and Cook County Sheriff Tom Dart, and challenging, inter alia, the
       constitutionality of the Ordinance. In their first amended complaint, plaintiffs allege that they
       are “law abiding citizens” and residents of Cook County who have properly issued firearm
       owner’s identification cards. They allege that they own various firearms, magazines, and gun
       parts which were legally purchased for self-defense in the home, for recreational purposes,
       or as part of firearm collections.
¶9          Of relevance to the arguments raised in this appeal, plaintiffs allege in count I that the
       Ordinance violates the due process clause of the United States Constitution because the
       definition of assault weapons is unconstitutionally vague. Plaintiffs allege that they are of
       ordinary intelligence, and that based upon the vague definitions of assault weapons in the
       Ordinance they must guess whether their firearms fall within the purview of the Ordinance,
       subjecting them to the risk of imprisonment and fines. In addition, plaintiffs allege that they
       seek to legally purchase additional firearms, parts, and accessories, but cannot because
       plaintiffs are uncertain whether they may be prohibited under the Ordinance. Plaintiffs also
       indicate that the 90-day time period in which to conform with the Ordinance has passed. In
       count IV, plaintiffs allege a violation of the individual right to bear arms as guaranteed under
       the second amendment to the United States Constitution. In count VI, plaintiffs allege a
       violation of the equal protection clause of the United States Constitution because the
       Ordinance arbitrarily classifies certain firearms. Plaintiffs attached various photographs of
       certain firearms to support their allegations.3 Thereafter, the circuit court granted the
       County’s motion to dismiss with prejudice the first amended complaint pursuant to section
       2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2006)), holding that the
       claims failed as a matter of law. The court found that: (1) the Ordinance was not
       unconstitutionally vague; (2) the Ordinance did not violate the second amendment because
       it constrained only infringement by the federal government and had never been incorporated
       into the fourteenth amendment; and (3) plaintiffs failed to state a cause of action for a
       violation of the equal protection clause.
¶ 10       The appellate court affirmed, ruling that the Supreme Court’s holding in District of
       Columbia v. Heller, 554 U.S. 570 (2008), did not provide a fundamental right to bear arms
       applicable to the states and, therefore, the right to bear arms was subject to the police power
       of the state. Wilson v. Cook County, 394 Ill. App. 3d 534, 542-44 (2009). The appellate court
       additionally found that the circuit court properly denied plaintiffs’ vagueness and equal
       protection challenges. Id. at 544-46.
¶ 11       Plaintiffs subsequently filed a petition for leave to appeal in this court. While the petition


               3
               Counts II, III, and V, which are not raised in this appeal, involved allegations that the
       Ordinance violated due process because it imposed strict liability, was overbroad in its application,
       and was an unconstitutional exercise of the police power.

                                                   -5-
       was pending, the United States Supreme Court filed its decision in McDonald v. City of
       Chicago, 561 U.S. ___, 130 S. Ct. 3020 (2010). The Supreme Court held for the first time
       that the second amendment applies to the states through the due process clause of the
       fourteenth amendment. Id. at ___, 130 S. Ct. at 3050. We entered a supervisory order
       directing the appellate court to vacate its prior judgment and to reconsider the appeal in light
       of McDonald. Wilson v. Cook County, 237 Ill. 2d 593 (2010) (supervisory order). On
       remand, the appellate court again affirmed the circuit court’s dismissal of the complaint.
       Wilson v. Cook County, 407 Ill. App. 3d 759 (2011). Therein, the court held, inter alia, that
       the second amendment right does not extend to assault weapons and that the Ordinance is
       substantially related to an important governmental interest. Wilson, 407 Ill. App. 3d at 773-
       74. Specifically, relying on the decisions in People v. James, 94 Cal. Rptr. 3d 576 (Cal. Ct.
       App. 2009), and Heller v. District of Columbia, 698 F. Supp. 2d 179 (D.D.C. 2010), vacated
       in part, No. 10-7036, 2011 WL 4551558 (D.C. Cir. Oct. 4, 2011), the court found the
       restrictions of the Ordinance are supported by the historical tradition of prohibiting the
       carrying of dangerous and unusual weapons and allow for the continued protected use of
       common firearms. Wilson, 407 Ill. App. 3d at 773-74. The court further held that the
       definitions in the Ordinance are not vague, but have their plain and ordinary meanings, and
       that plaintiffs failed to allege any facts that would support an equal protection claim. Id. at
       774-75.
¶ 12       We subsequently granted plaintiffs’ petition for leave to appeal (Ill. S. Ct. R. 315 (eff.
       Feb. 26, 2010)). We allowed the Commonwealth Second Amendment, the Illinois
       Conservation Police Lodge, certain Illinois legislators, the Illinois Firearms Manufacturers
       Association, the National Shooting Sports Foundation, and the National Rifle Association
       of America, Inc., to submit amicus curiae briefs in support of plaintiffs. We additionally
       allowed the Brady Center to Prevent Gun Violence, the Legal Community Against Gun
       Violence, the City of Chicago, the Major Cities Chiefs Association, and the Association of
       Prosecuting Attorneys to submit amicus curiae briefs in support of the County.


¶ 13                                         ANALYSIS
¶ 14       This appeal comes before the court on the circuit court’s grant of a motion to dismiss
       pursuant to section 2-615 of the Code. A motion to dismiss under section 2-615 challenges
       the legal sufficiency of the complaint based on defects on the face of the complaint. Sheffler
       v. Commonwealth Edison Co., 2011 IL 110166, ¶ 61. “The critical inquiry in deciding a
       section 2-615 motion to dismiss is whether the allegations in the complaint, considered in
       a light most favorable to the plaintiff, are sufficient to state a cause of action upon which
       relief can be granted.” Id. A cause of action will be dismissed on the pleadings only if it is
       clearly apparent that no set of facts can be proved that would entitle the plaintiff to relief. Id.
       In ruling on such a motion, only those facts apparent from the face of the pleadings, matters
       of which the court can take judicial notice, and judicial admissions in the record may be
       considered. Pooh-Bah Enterprises, Inc. v. County of Cook, 232 Ill. 2d 463, 473 (2009). We
       review de novo an order granting a section 2-615 motion to dismiss. Id. We also note that the


                                                  -6-
       ultimate question of whether an ordinance is unconstitutional is a question of law, which this
       court also reviews de novo. People v. Madrigal, 241 Ill. 2d 463, 466 (2011).


¶ 15                                       The Ordinance
¶ 16      We begin with an overview of the Ordinance. Section 54-212 of the Cook County Code
       provides that “No person shall manufacture, sell, offer or display for sale, give, lend, transfer
       ownership of, acquire or possess any assault weapon or large capacity magazine.” Cook
       County Code § 54-212 (amended by Cook County Ordinance No. 06-O-50 (approved Nov.
       14, 2006)). Section 54-211 specifically defines assault weapon by the following
       characteristics:
                  “(1) A semiautomatic rifle that has the capacity to accept a large capacity
               magazine[,] detachable or otherwise[,] and one or more of the following:
                       (A) Only a pistol grip without a stock attached;
                       (B) Any feature capable of functioning as a protruding grip that can be held
                   by the non-trigger hand;
                       (C) A folding, telescoping or thumbhole stock;
                       (D) A shroud attached to the barrel, or that partially or completely encircles
                   the barrel, allowing the bearer to hold the firearm with the non-trigger hand
                   without being burned, but excluding a slide that encloses the barrel; or
                       (E) A muzzle brake or muzzle compensator;
                   (2) A semiautomatic pistol or any semi-automatic rifle that has a fixed magazine,
               that has the capacity to accept more than 10 rounds of ammunition;
                  (3) A semiautomatic pistol that has the capacity to accept a detachable magazine
               and has one or more of the following:
                       (A) Any feature capable of functioning as a protruding grip that can be held
                   by the non-trigger hand;
                       (B) A folding, telescoping or thumbhole stock;
                       (C) A shroud attached to the barrel, or that partially or completely encircles
                   the barrel, allowing the bearer to hold the firearm with the non-trigger hand
                   without being burned, but excluding a slide that encloses the barrel;
                       (D) A muzzle brake or muzzle compensator; or
                       (E) The capacity to accept a detachable magazine at some location outside of
                   the pistol grip.
                   (4) A semiautomatic shotgun that has one or more of the following:


                                                 -7-
                      (A) Only a pistol grip without a stock attached;
                      (B) Any feature capable of functioning as a protruding grip that can be held
                  by the non-trigger hand;
                      (C) A folding, telescoping or thumbhole stock;
                      (D) A fixed magazine capacity in excess of 5 rounds; or
                      (E) An ability to accept a detachable magazine;
                  (5) Any shotgun with a revolving cylinder.
                  (6) Conversion kit, part or combination of parts, from which an assault weapon
              can be assembled if those parts are in the possession or under the control of the same
              person[.]” Id. § 54-211 (amended Nov. 14, 2006).
¶ 17      The Ordinance specifically excludes “any firearm that has been made permanently
       inoperable, *** ‘antique firearm[s],’ *** or weapons designed for Olympic target shooting
       events.” Id.
¶ 18      In addition, under section 54-211 the following additional terms are specifically defined:
                  “(c) Detachable magazine means any ammunition feeding device, the function
              of which is to deliver one or more ammunition cartridges into the firing chamber,
              which can be removed from the firearm without the use of any tool, including a bullet
              or ammunition cartridge.
                  (d) Large capacity magazine means any ammunition feeding device with the
              capacity to accept more than 10 rounds, but shall not be construed to include the
              following:
                     (1) A feeding device that has been permanently altered so that it cannot
                  accommodate more than 10 rounds.
                      (2) A 22 [sic] caliber tube ammunition feeding device.
                      (3) A tubular magazine that is contained in a lever-action firearm.
                   (e) ‘Muzzle brake’ means a device attached to the muzzle of a weapon that
              utilizes escaping gas to reduce recoil.
                   (f) ‘Muzzle compensator’ means a device attached to the muzzle of a weapon that
              utilizes escaping gas to control muzzle movement.” (Emphases in original.) Id.


¶ 19                                 Vagueness Challenge
¶ 20      In this preenforcement facial challenge, plaintiffs have alleged that the Ordinance is
       vague and therefore violates the due process clause of the United States Constitution (U.S.
       Const., amend. XIV). Plaintiffs contend that the Ordinance defines assault weapons by “an


                                               -8-
       arbitrary and ill-defined subset of these weapons without providing any explanation for its
       selections, and the language employed to describe various features or components of firearms
       that make them ‘assault [w]eapons’ is both vague and arbitrary.”
¶ 21      The notion that an Ordinance is void for vagueness is a concept derived from the notice
       requirement of the due process clause. The concern animating the doctrine is twofold: (1)
       whether the law fails to provide people of ordinary intelligence a reasonable opportunity to
       understand what conduct it prohibits so that one may act accordingly; and (2) whether the
       law provides reasonable standards to law enforcement to ensure against authorizing or even
       encouraging arbitrary and discriminatory enforcement. Hill v. Colorado, 530 U.S. 703, 732
       (2000); Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972).
¶ 22       Additionally, in determining the clarity that the Constitution demands of a law, we are
       cognizant that in the context of first amendment freedoms the Supreme Court has expressed
       that “[u]ncertain meanings inevitably lead citizens to steer far wider of the unlawful zone ...
       than [they would] if the boundaries of the forbidden areas were clearly marked.” (Internal
       quotation marks omitted.) Grayned, 408 U.S. at 109. Thus, in cases where the law threatens
       to inhibit a first amendment right it has been said that the Constitution requires a “greater
       degree of specificity.” Smith v. Goguen, 415 U.S. 566, 574 (1974). However, “ ‘perfect
       clarity and precise guidance have never been required.’ ” United States v. Williams, 553 U.S.
       285, 304 (2008) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989)).
¶ 23       We are also mindful that, “[t]he degree of vagueness that the Constitution tolerates—as
       well as the relative importance of fair notice and fair enforcement—depends in part on the
       nature of the enactment.” Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc.,
       455 U.S. 489, 498 (1982). The Constitution tolerates a lesser degree of vagueness in
       enactments with criminal rather than civil penalties and specifically those without a scienter
       requirement because the consequences of imprecision are more severe. Id. at 499. In order
       to succeed in a facial vagueness challenge, as opposed to an as-applied challenge, the
       vagueness must “permeate[ ] the text of such a law.” City of Chicago v. Morales, 527 U.S.
       41, 55 (1999).
¶ 24       In construing the validity of the ordinance, we begin by applying the same rules that
       govern the construction of a statute. Pooh-Bah Enterprises, Inc., 232 Ill. 2d at 492. Thus, as
       with a statute, the first step in a vagueness inquiry is to examine the plain language of the
       ordinance in light of its common understanding and practice. Id. If the plain text of the
       ordinance sets forth clearly perceived boundaries, our inquiry is ended. Id.
¶ 25       With these principles in mind, we address plaintiffs’ contentions. At the outset, we note
       that plaintiffs provide little or no argument in their brief to support their vagueness challenge,
       but instead merely direct our attention to specific paragraphs in the first amended complaint
       and attached exhibits. Accordingly, we look exclusively to those allegations highlighted by
       plaintiffs in their brief, and to the extent that they have failed to address other allegations
       raised in the complaint, those arguments have been forfeited. See Ill. S. Ct. R. 341(h)(7) (eff.
       July 1, 2008); Elementary School District 159 v. Schiller, 221 Ill. 2d 130, 143 n.2 (2006).


                                                  -9-
¶ 26       Plaintiffs initially challenge as vague the definition of an “assault weapon” in section 54-
       211(1) as a “semiautomatic rifle that has the capacity to accept a large capacity magazine[,]
       detachable or otherwise.” Plaintiffs allege that the language “has the capacity to accept” does
       not put an individual on notice whether a particular semiautomatic rifle with a detachable
       magazine is prohibited. Plaintiffs posit as an example an individual who possesses a firearm
       which, when purchased, was not manufactured to accept a large-capacity magazine but,
       subsequently, can accommodate the large-capacity magazine through a modification
       available in the marketplace. Plaintiffs maintain that under this example, the Ordinance
       violates due process because an ordinary intelligent gun owner may not know of such
       availability, but would be subject to prosecution.
¶ 27        In support, plaintiffs rely on the Sixth Circuit decision in Peoples Rights Organization,
       Inc. v. City of Columbus, 152 F.3d 522, 535-36 (6th Cir. 1998). There, an ordinance defined
       “assault weapon” as “any semiautomatic action, center fire rifle or carbine that accepts a
       detachable magazine with a capacity of 20 rounds or more.” Id. at 535. The plaintiffs
       challenged the provision on vagueness grounds. The record indicated that any semiautomatic
       rifle that accepts a detachable magazine would accept a detachable magazine of any capacity
       that might exist. The court held this provision was “little more than a trap for the unwary.”
       Id. The court reasoned that since the ordinance contained no scienter requirement, the lack
       of knowledge as to the high-capacity magazine’s existence was of no consequence in
       prosecuting the offense. Id. at 536. Since the capacity was limited only by the availability of
       a large-capacity magazine, and not by actual possession, all owners with semiautomatic,
       center-fire rifles and carbines with detachable magazines were in jeopardy of prosecution if
       a compatible large-capacity magazine was discovered or had ever been manufactured. The
       court held that “[d]ue process demands more than this” and that “presumably” this
       construction of the ordinance was not intended by the Columbus city council. Id.
¶ 28        Nevertheless, based on the plain language of this Ordinance, and the allegations in the
       first amended complaint, we find the Ordinance is not vague and is distinguishable from the
       Sixth Circuit decision. “Capacity,” as defined by its ordinary meaning, includes “the power
       or ability to hold, receive, or accommodate.” Webster’s Third New International Dictionary
       330 (1993). It is evident from plaintiffs’ own allegations that the language in section 54-
       211(1) means that any semiautomatic rifle with the ability to accommodate a large-capacity
       magazine and which also has one of the five listed features is prohibited, whether the large-
       capacity magazine which it accommodates is currently manufactured or may be in the future.
       The absence of a scienter requirement does not alter our conclusion that the Ordinance is not
       unconstitutionally vague on its face. As evinced by plaintiffs’ allegations, any semiautomatic
       rifle with the capacity to accept a 10-round magazine is also capable of accepting a large-
       capacity magazine. Thus, since plaintiffs acknowledge that all semiautomatic rifles that
       accept a magazine are capable of accommodating the larger capacity, it follows that the
       conduct proscribed is knowable and the prohibition is clear. Therefore, albeit broad, the
       language “has the capacity to accept” is not facially vague. Its prohibitions are clearly
       defined, as plaintiffs’ own allegations demonstrate.
¶ 29      Additionally, unlike the Columbus ordinance in Peoples Rights Organization, the County

                                                -10-
       chose to add an additional characteristic test similar to the federal ban on assault weapons.
       Under the Ordinance, the weapon must not only have the capacity to accept a large-capacity
       magazine, but must also have one of five other enumerated characteristics. Cook County
       Code § 54-211(1)(A) to (E) (definition of assault weapon). The five additional enumerated
       properties are different in kind from the capacity requirement because these properties refer
       to extant properties of the weapon and not “potential properties” or “capabilities.” Thus, an
       individual that seeks to possess a semiautomatic rifle with the capacity to accept a large-
       capacity magazine but which has none of the other additional features is on notice that his
       weapon is not prohibited. Accordingly, we cannot say that vagueness permeates the text of
       section 54-211(1).
¶ 30       Plaintiffs further allege that several of the specific enumerated characteristics such as
       “barrel shroud” or “protruding grip” are vague generic features that would potentially qualify
       any weapon as an assault weapon. Courts that have analyzed similar language have declared
       these attributes to be specific and readily discernible characteristics. See Richmond Boro Gun
       Club, Inc. v. City of New York, 97 F.3d 681, 685 (2d Cir. 1996). We note that lower federal
       court decisions are not binding on Illinois courts, but may be considered persuasive authority.
       People ex rel. Ryan v. World Church of the Creator, 198 Ill. 2d 115, 127 (2001). As the court
       explained in Richmond Boro Gun Club, an ordinance is not facially vague merely because
       “a host of items exist that, although not specifically intended to serve these purposes, could
       arguably do so, thereby subjecting an unsuspecting gun owner to criminal liability.”
       Richmond Boro Gun Club, 97 F.3d at 685. The court stated that this argument is self-
       defeating because “the issue is not whether plaintiffs can posit some application not clearly
       defined by the legislation.” Id. The issue is whether the vagueness “permeates the text.”
       Morales, 527 U.S. at 55. We agree with the trial and appellate courts that based on their plain
       language these terms are not so ill-defined that they are facially vague.
¶ 31        Plaintiffs additionally allege that the use of the phrase “copies or duplicates” in section
       54-211(7) is vague because the weapons may have similar functions, but have different
       cosmetic components. Section 54-211(7) provides a nonexhaustive list of weapons which
       are prohibited as well as “copies or duplicates thereof.” A “copy” is defined as “an imitation,
       *** or reproduction of an original work.” Webster’s Third New International Dictionary 504
       (1993). A “duplicate” is defined to include “either of two things that exactly resemble or
       correspond to each other” (Webster’s Third New International Dictionary 702 (1993)). The
       “copies or duplicates” language was added to the Ordinance in order to prevent
       manufacturers from simply changing the name of the specified weapons to avoid criminal
       liability. See Olympic Arms v. Buckles, 301 F.3d 384 (6th Cir. 2002); see also In re R.C. ,195
       Ill. 2d 291, 299 (2001) (noting that when considering a vagueness challenge a court considers
       not only the language, but the legislative objective and the evil it is designed to remedy).
¶ 32      A person of ordinary intelligence would understand that section 54-211(7) includes the
       specific weapons listed and any imitations or reproductions of those weapons made by that
       manufacturer or another. When read together with the listed weapons, the provision is not
       vague. In addition, plaintiffs’ argument ignores the rule of statutory construction that we
       must construe the Ordinance as a whole. People v. Marshall, 242 Ill. 2d 285, 292 (2011).

                                                -11-
       When the Ordinance is read as a whole, reference to section 54-211(1) through (6) would
       also put an individual on notice whether a particular weapon is banned based on the specific
       characteristics of the weapon.
¶ 33       The “copies or duplicates” language together with the characteristics-based test serve to
       rectify the problems outlined in Springfield Armory, Inc. v. City of Columbus, 29 F.3d 250
       (6th Cir. 1994), a case relied on by plaintiffs in support of their argument. There, the court
       sustained a vagueness challenge to an ordinance which banned assault weapons only by
       outlawing certain brand names without including within the prohibition similar weapons of
       the same type, function or capability. In that case the consumer was “without a reasoned
       basis for determining which firearms are prohibited.” Id. at 252. In contrast, the Ordinance
       provides standards and a reasoned basis on which to determine whether a firearm is banned.
       Accordingly, for the foregoing reasons, the trial court properly dismissed count I of
       plaintiffs’ first amended complaint.


¶ 34                             Second Amendment Challenge
¶ 35       Plaintiffs contend that the County’s ban on assault weapons as defined in the Ordinance
       violates the second amendment right to bear arms. The second amendment provides: “A well
       regulated Militia, being necessary to the security of a free State, the right of the people to
       keep and bear Arms, shall not be infringed.” U.S. Const., amend. II. In its 2008 decision in
       District of Columbia v. Heller, 554 U.S. 570 (2008), a five justice majority of the Supreme
       Court expressly recognized, in its first “in-depth examination,” that the second amendment
       confers an individual right to keep and bear arms (id. at 592), and that the “central
       component of the right” is the right of armed self-defense, most notably in the home.
       (Emphasis omitted.) Id. at 595, 599-600.
¶ 36       Based on this interpretation, the Court invalidated the District of Columbia’s complete
       prohibition on handguns in the home by law-abiding citizens, and invalidated its requirement
       that all firearms in the home be kept inoperable. Id. at 629-35. The majority found that
       “under any of the standards of scrutiny the Court has applied to enumerated constitutional
       rights” a prohibition on all handguns was a ban on “an entire class of ‘arms’ that is
       overwhelmingly chosen by American society for [the] lawful purpose” of self-defense and
       that a complete prohibition on their use was invalid. Id. at 628. The Court explained that
       “whatever else [the second amendment] leaves to future evaluation, it surely elevates above
       all other interests the right of law-abiding, responsible citizens to use arms in defense of
       hearth and home.” Id. at 635.
¶ 37       Nevertheless, the Court held that the scope of the right is not without limitations. The
       Court made clear that “[l]ike most rights, the right secured by the Second Amendment is not
       unlimited.” Id. at 626. An individual does not have “a right to keep and carry any weapon
       whatsoever in any manner whatsoever and for whatever purpose.” (Emphases added.) Id.
       Notably, the majority of the Court interpreted its prior decision in United States v. Miller,
       307 U.S. 174 (1939), to stand for the proposition that the second amendment right extends


                                               -12-
       only to certain types of weapons. Id. at 623. The Court read Miller to say that “the Second
       Amendment does not protect those weapons not typically possessed by law-abiding citizens
       for lawful purposes, such as short-barreled shotguns.” Id. at 625. The Court found support
       for this “important limitation” in “the historical tradition of prohibiting the carrying of
       ‘dangerous and unusual weapons.’ ” Id. at 627.
¶ 38       The Court additionally attempted to sketch out a nonexhaustive list of “presumptively
       lawful regulatory measures,” including “longstanding [sic] prohibitions on the possession of
       firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in
       sensitive places such as schools and government buildings, or laws imposing conditions and
       qualifications on the commercial sale of arms.” Id. at 626-27. The Court declined to explain
       what it meant by “long-standing” or elaborate on the historical justifications for these
       exceptions. See id. It found it unnecessary to define the outer limits of the right or identify
       the level of scrutiny that should be applied to laws that burden those rights because the
       District of Columbia law under consideration would violate the second amendment “[u]nder
       any of the standards of scrutiny that we have applied to enumerated constitutional rights.”
       Id. at 628.
¶ 39       Thereafter, the Supreme Court revisited the second amendment in McDonald v. City of
       Chicago, 561 U.S. ___, 130 S. Ct. 3020 (2010). A plurality of the Court held that “the Due
       Process Clause of the Fourteenth Amendment incorporates the Second Amendment right
       recognized in Heller.” Id. at ___, 130 S. Ct. at 3050. The Supreme Court reiterated its central
       holding in Heller “that the Second Amendment protects the right to possess a handgun in the
       home for the purpose of self-defense.” Id. Additionally, the Court reiterated that the second
       amendment right was far from absolute and noted that the doctrine of incorporation “does
       not imperil every law regulating firearms.” Id. at ___, 130 S. Ct. at 3047.
¶ 40       Since Heller and McDonald, courts have begun to develop a general framework for
       analyzing the newly enunciated second amendment right. These courts have endeavored to
       (1) outline the appropriate scope of the individual second amendment guarantee as defined
       in Heller; and (2) determine the appropriate standard of scrutiny for laws that burden these
       rights. See, e.g., Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011); Heller v. District of
       Columbia, No. 10-7036, 2011 WL 4551558 (D.C. Cir. Oct. 4, 2011) (Heller II).
¶ 41        These courts have generally followed a two-pronged approach. The threshold question
       we must consider is whether the challenged law imposes a burden on conduct falling within
       the scope of the second amendment guarantee. That inquiry involves a textual and historical
       inquiry to determine whether the conduct was understood to be within the scope of the right
       at the time of ratification. Heller, 554 U.S. at 634-35; McDonald, 561 U.S. at ___, 130 S. Ct.
       at 3047. If the government can establish that the challenged law regulates activity falling
       outside the scope of the second amendment right, then the regulated activity is categorically
       unprotected. Ezell, 651 F.3d at 702-03.
¶ 42       However, “if the historical evidence is inconclusive or suggests that the regulated activity
       is not categorically unprotected—then there must be a second inquiry into the strength of the
       government’s justification for restricting or regulating the exercise of Second Amendment

                                                -13-
       rights.” Id. at 703. What form that takes has been articulated in various ways, but courts
       generally recognize that Heller rejected rational-basis review and requires some form of
       heightened scrutiny. See, e.g., Ezell, 651 F.3d at 702-04; United States v. Chester, 628 F.3d
       673, 680 (4th Cir. 2010); United States v. Marzzarella, 614 F.3d 85, 91 (3d Cir. 2010);
       Heller II, 2011 WL 4551558, at *5.


¶ 43             Plaintiffs’ Pleadings and the Scope of the Second Amendment
¶ 44       As Heller explained, the second amendment does not provide a right to possess any
       weapon whatsoever and clearly articulates that certain types of weapons are not eligible for
       second amendment protection. The second amendment categorically protects the right of
       law-abiding citizens to possess a handgun, particularly for self-defense in the home, because
       handguns are a class of arms that the Supreme Court has found are “overwhelmingly” chosen
       by American society for the lawful purpose of self-defense. Unlike the District of Columbia
       handgun ban, we cannot say as a matter of law that the Ordinance purports to prohibit an
       entire class of arms that is overwhelmingly chosen by American society for self-defense in
       the home. The Ordinance is not an absolute ban on the possession of all rifles, shotguns, or
       pistols for self-defense. Nor is it a complete ban on all semiautomatic firearms. Instead, it
       covers a particular subset of these weapons with particular characteristics that the County has
       determined make them capable of firing rapidly, delivering a large number of shots without
       reloading, and creating a high risk of collateral damage. The Court in Heller had no reason
       to consider regulation of these particular types of firearms with these particular attributes.
¶ 45       Nor can it be said with any certainty, unlike in Heller, that assault weapons, as defined
       under the Ordinance, are the “quintessential weapon of choice” for self-defense by
       Americans. At least some of these types of weapons were banned for 10 years under federal
       law and have been banned in some degree by numerous states and municipalities, albeit
       without any uniform definition. See, e.g., Mass. Gen. Laws ch. 140, §§ 121, 131M (2008);
       N.J. Stat. Ann. §§ 2C:39-1(w), 2C:39-5(f), 2C:58-12 (West 2008); N.Y. Penal Law
       §§ 265.00(21), (22), 265.10, 265.20(a)(16) (McKinney 2008); Haw. Rev. Stat. §§ 134-1,
       134-4(e) (2007); Aurora (Ill.) Code of Ordinances § 29-49 (2008); Chicago Municipal Code
       §§ 8-20-030(h), 8-20-40, 8-20-50 (2008); Columbus City (Ohio) City Codes §§ 2323.11(G),
       2323.31 (2008). In 1994, the federal Bureau of Alcohol, Tobacco, Firearms and Explosives
       characterized assault weapons as “mass produced mayhem” and weapons of choice for
       gangs, drug dealers, and mass killers to outgun police officers on the streets. ATF, Assault
       Weapons Profile 19 (1994). The ATF, Congress, and the County have concluded that assault
       weapons under varied definitions have no “sporting purpose.”
¶ 46       With that said, neither can we say conclusively at this early stage of the litigation that
       assault weapons as defined in this Ordinance categorically fall outside the scope of the rights
       protected by the second amendment. Heller explicitly recognized a historical and long-
       standing tradition of firearms regulations prohibiting a category of “dangerous and unusual
       weapons” that are “not typically possessed by law-abiding citizens for lawful purposes.”
       Historically, weapons like machine guns, sawed-off shotguns, grenade launchers, and other

                                                -14-
       high-powered weapons have fallen into this category due to their extreme nature. See, e.g.,
       United States v. McCartney, 357 F. App’x 73 (9th Cir. 2009) (finding that machine gun
       possessed by defendant was dangerous and unusual; noting that defendant’s own expert
       testified that possession by private citizen was unusual); United States v. Fincher, 538 F.3d
       868, 870, 873-74 (8th Cir. 2008) (machine gun and sawed-off shotgun not protected by the
       second amendment because they were not in common use by law-abiding citizens for lawful
       purposes); United States v. Dempsey, 957 F.2d 831, 834 (11th Cir. 1992) (court reasoned that
       unlike firearms which may be used for sport, recreation or collection, pipe bombs had no
       legitimate purpose); State v. Fennell, 382 S.E.2d 231, 233 (N.C. Ct. App. 1989) (noting the
       danger posed by a sawed-off shotgun because it may be readily concealed and because of its
       wide and nearly indiscriminate spraying of its shot).
¶ 47      Excluding these types of arms has been analogized to excluding fighting words from the
       ambit of first amendment protection because:
               “the value provided by the fighting words/machine gun is so slight that it will always
               be outweighed by ‘the social interest in order and morality.’ In other words, the
               interest that one would have in possessing a machine gun—for example, the ability
               to repel home invasions or attack by mobs—can never justify the increased potential
               of collateral damage resulting from the use of such a weapon.” Jason T. Anderson,
               Note, Second Amendment Standards of Review: What the Supreme Court Left
               Unanswered in District of Columbia v. Heller, 82 S. Cal. L. Rev. 547, 578-79 (2009).
       Others have suggested that Heller’s adaption of Miller’s criterion suggests the Court “wishes
       to distinguish a limited class of arms that is only appropriate for use on military battlefields,
       where the social compact is completely suspended, from the broader class of arms that are
       amenable to being commonly kept within civil society.” Michael P. O’Shea, The Right to
       Defensive Arms After District of Columbia v. Heller, 111 W. Va. L. Rev. 349, 385 (2009).
¶ 48       The parties vigorously debate the dangers of assault weapons as defined by the breadth
       of this Ordinance, and seek to debate whether these types of arms are appropriate for self-
       defense and whether these types of prohibited weapons under the Ordinance are well suited
       to the core lawful purpose as expressed in Heller. The County’s findings, as enunciated in
       the 1993 version of the Ordinance prior to its current amendment, were that “there is no
       legitimate sporting purpose for the military style assault weapons now being used on our
       streets”; and “assault weapons are twenty times more likely to be used in the commission of
       a crime than other kinds of weapons.” Cook County Ordinance No. 93-O-37. The County
       maintains that these assault weapons have particular characteristics that render these weapons
       more dangerous than ordinary weapons typically possessed by law-abiding citizens for lawful
       purposes. It asserts that the Ordinance targets semiautomatic firearms that enable shooters
       to discharge high numbers of shots rapidly and have other features conducive to criminal
       applications.
¶ 49        Plaintiffs seek to present evidence to support their allegation that this particular
       Ordinance encompasses a myriad of weapons that are typically possessed by law-abiding
       citizens for lawful purposes and fall outside the scope of the dangers sought to be protected

                                                 -15-
       under the Ordinance. Without a national uniform definition of assault weapons from which
       to judge these weapons, it cannot be ascertained at this stage of the proceedings whether
       these arms with these particular attributes as defined in this Ordinance are well suited for
       self-defense or sport or would be outweighed completely by the collateral damage resulting
       from their use, making them “dangerous and unusual” as articulated in Heller. This question
       requires us to engage in an empirical inquiry beyond the scope of the record and beyond the
       scope of judicial notice about the nature of the weapons that are banned under this Ordinance
       and the dangers of these particular weapons.
¶ 50       We recognize that the other courts that have addressed the scope issue in relation to
       assault weapons have taken varying approaches in varying contexts. In People v. James, 94
       Cal. Rptr. 3d 576 (Cal. Ct. App. 2009), in the context of a criminal prosecution post-Heller,
       the California court of appeals held that a particular assault weapon was not protected by the
       second amendment. Id. at 585. The court’s finding was based upon the legislature’s hearings
       and codified findings that these weapons were unusual and dangerous. The legislature found
       that an assault weapon “ ‘has such a high rate of fire and capacity for firepower that its
       function as a legitimate sports or recreational firearm is substantially outweighed by the
       danger that it can be used to kill and injure human beings.’ ” Id. at 585. The court declared
       based on the legislative finding that assault weapons are “at least as dangerous and unusual
       as the short-barreled shotgun” and described them as “weapons of war.” Id. at 586.
¶ 51       In Heller II, in ruling on a motion for summary judgment, the court found that based
       upon the record before it, which included legislative findings, it could not ascertain whether
       the assault weapons as defined by the District of Columbia ordinance were commonly used
       or were useful for self-defense and, therefore, whether the prohibitions meaningfully affected
       the right to keep and bear arms. Heller II, 2011 WL 4551558, at *13. Instead, the court of
       appeals chose to presume a right protected by the second amendment and proceeded to apply
       intermediate-scrutiny review. Id.
¶ 52       Nevertheless, given the procedural posture of this case, we need not choose either of
       these approaches at this time. Unlike James and Heller II, we have a minimal legislative
       record to review and need not make assumptions without first attempting to ascertain
       relevant facts. Additionally, our deference to a legislative finding is a balancing of competing
       interests. As the Supreme Court has indicated in the context of fundamental first amendment
       rights, a legislative declaration does not preclude inquiry by the judiciary into the facts
       bearing on an issue of constitutional law. Landmark Communications, Inc. v. Virginia, 435
       U.S. 829, 843 (1978) (“Deference to a legislative finding cannot limit judicial inquiry when
       First Amendment rights are at stake.”). We note that unlike Heller II, the County has not had
       an opportunity to present evidence to justify the nexus between the Ordinance and the
       governmental interest it seeks to protect. Pursuant to section 2-615 of the Code, we cannot
       say at this point that it is clearly apparent that no set of facts can be proved that would entitle
       plaintiffs to relief on count IV. Accordingly, for these reasons, we reverse the trial court’s
       dismissal of the first amended complaint with respect to count IV and remand to the trial
       court for further proceedings.


                                                  -16-
¶ 53                                      Equal Protection
¶ 54       Lastly, we consider plaintiffs’ equal protection challenge. Plaintiffs allege that the
       Ordinance violates the equal protection clause under the due process clause of the fifth and
       fourteenth amendments. Specifically, plaintiffs allege that the Ordinance arbitrarily
       differentiates between identically situated persons by banning specifically listed assault
       weapons, but not banning possession of other identical firearms. For example, plaintiffs
       assert that there are a number of firearms that are not “copies or duplicates” of listed firearms
       under the Ordinance because they have features that make them easier for left-handed
       shooters to use, but are identical in function. Therefore, plaintiffs maintain that the person
       who owns the listed firearm is treated differently than a person who owns a functionally
       identical firearm. We disagree.
¶ 55       The equal protection clause has generally been held to protect against inappropriate
       classifications of people, rather than things. See Olympic Arms v. Buckles, 301 F.3d 384 (6th
       Cir. 2002). Plaintiffs assert that because individuals have an interest in things, classifications
       of these things can be challenged on equal protection grounds. Nevertheless, we need not
       engage in the scope of the equal protection clause here in order to resolve the issue presented
       because even under an equal protection analysis, the Ordinance meets those requirements.
¶ 56       Plaintiffs’ construction of the Ordinance runs afoul of the long-standing rules of statutory
       construction. As the County notes, section 54-211(7) is part of a broader legislative scheme
       and is not to be read in isolation. Marshall, 242 Ill. 2d at 292. Subsection (7) offers a
       nonexhaustive list of weapons along with “copies or duplicates.” In addition, section 54-
       211(1) through (6) defines the types of weapons prohibited by listing specific technical
       characteristics of the weapon. Thus, when read in its entirety, the Ordinance does not
       arbitrarily differentiate between two owners with similar firearms because the banned
       firearms are either listed, a copy or duplicate, or fall under the characteristics-based test.
       Accordingly, we find the trial court properly dismissed count VI of the first amended
       complaint.


¶ 57                                       CONCLUSION
¶ 58       For the foregoing reasons, we hold that the Ordinance does not violate the due process
       and equal protection clauses of the United States Constitution and therefore affirm the
       judgment of the appellate court and trial court dismissing count I and count VI of the first
       amended complaint. Additionally, we hold that plaintiffs have sufficiently pleaded a cause
       of action to withstand a section 2-615 motion to dismiss on their second amendment
       challenge under count IV of the first amended complaint. Accordingly, we affirm in part and
       reverse in part, and remand to the trial court for further proceedings on count IV.




                                                 -17-
¶ 59   Affirmed in part and reversed in part.
¶ 60   Cause remanded.




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