Robertson v. City and County of Denver

ROBERTSON, Jr., M.D.; M. Lаwrence Jeffrey Hecht; Deatherage;

Sharon Jewell, Mi

David Scotties Guns & d/b/a

litaria, Plaintiffs-Appellees, Colorado, ex rel. Duane

State

Woodard, Plaintiff/Intervenor-

Appellee, DENVER; AND CITY COUNTY OF Zavaras, City

Ari Chief Police of the County Denver; and Manuel

Martinez, Manager Safety Ex-

Officio Sheriff

Denver, Defendants-Appellants.

No. 93SA91. Colorado,

Supreme Court

En Banc.

2,May Golden, Kopel, plaintiffs. B. for

David Muse, Stoffel, City Atty., John L. Daniel Jr., Aviles, Attys., City Asst. Den- Karen A. ver, defendants-appellants. for Lakewood, Chambers, Sparks, Felix L. Hansen, Dansky, Dansky and David J. Den- ver, for amici curiae Center to Prevent Violence, Handgun People United —No Chil- Handguns, Chapter of American dren’s CO Emergency Physicians, Chap- College of CO College Surgeons, American Denver ter of Soc., Chapter Public CO of American Medical Ass’n, Ass’n, Chapter Health CO Nurses CO Pediatrics, Academy of of American Soc. of Critical Care Medicine. Ritter, Jr., Atty.,

A. Dist. Everett William Denver, Deputy Atty., for Engstrom, Dist. Atty. curiae Dist. amicus Dowlut, DC, Washington, for ami- Robert Rights Legal curiae Firearms Civil De- cus Fund, Law Enforcement Alliance of fense Ass’n, America, Shooting and Fire- CO State arms Coalition of CO. P.C., Eldridge, Eldridge, H.

Wade Wade Denver, for amici curiae Intern. Wound Bal- Ass’n, Integrity in Doctors for Re- listics Policy, search and Public CO Ass’n Law Instructors, Firearms Nat. Enforcement Police, Congress Ass’n of Chiefs of of Racial Police, In- Equality, American Federation of Institute, Amendment dependence Second Foundation, Foreign and Veterans of Wars. Justice ROVIRA delivered the Chief Opinion of the Court. presents questions of whether an

This case sale, manufacture, banning weapons” of “assault within the City County of article Denver violates Constitution, and section 13 of the Colorado proscription against laws the constitutional Denver, Rhodes, Ralph Stephen P. Hal- B. impermissibly vague or that are overbroad.1 Fairfax, VA, brook, plaintiffs-appellees. for Norton, Gen., Atty. Stephen K. Erk- Gale I enBrack, Gen., Deputy Atty. Timothy Chief Gen., Mitchell, Tymkovich, Sp. In October the Denver Council M. Sol. Shawn Council) Denver, Counsel, (City No. 669 plaintiff, intervenor-ap- enacted Ordinance became effective on November pellee. state, necessary security being of a free States to the 1. The Second Amendment to United people keep implicated and bear Arms shall is not in this case. That Constitution militia, infringed.” provides: regulated "A well not be amendment 1989, and was as section having capacity codified 38-130 of to fire аn inordinate- Municipal the Denver Revised Code. ly See large reloading. number rounds without Denver, Colo., Appendix, Rev.Mun.Code art. Thus, gave limiting the ordinance a (1989) (the ordinance). IV, § 38-130 construction so that it would serve the com- pelling interest defined the court. The plaintiffs challenged The individual additionally court determined that certain constitutionality of the ordinance on numer- provisions of vague the ordinance were or grounds.2 attorney general ous The inter- overbroad, and that plaintiff-intervenor provisions those vened as a on behalf of were Subsequently, the of not severable from passed State Colorado.3 the those which con- hearing Thus, trial court held a to consider the stitutional muster. the trial court in- plaintiffs’ and defendants’ motions for sum- validated the entire ordinance.5 mary judgment. appealed Defendants pursu- to this court granted The trial plaintiffs’ motion.4 (1992 13-4-102(l)(b), ant to section 6A C.R.S. II, It concluded that article section 13 of the Supp.). part, affirm in part, We reverse in guarantees Colorado Constitution people and remand proceedings. the case for further of right Colorado the fundamental to bear arms. It found that defendants had estab- II compelling governmental lished interest regulating weapons, right guaranteed but that this in- arms is un- only by II, terest was banning served those der article section 13 of the Colorado weapons capable rapid of both a of provides: rate fire Constitution.6 That section Specifically, they argued the ordinance is un- those also defined in section 38- 2. 130(b)(1) right constitutional because it: by violates the declaring and the definition of II, provided § bear arms in art. 13 of the pistol vague? Colora- to be Constitution; do ordinance, the militia clause of art. XVII of only IV.Is restricts one Constitution; equal protection the Colorado of type weapon, unduly overbroad because it the laws under the Fourteenth Amendment to the [injfringes upon the limited to bear arms II, § United States and Constitution art. 25 of the purposes? for defensive Constitution; pre-empted by Colorado is statе appealed, Defendants have not and do not ar law under article XX of the Colorado Constitu- gue concluding that the trial court erred in that tion; post prohibited constitutes an ex law 38-130(h)(5) Thus, § facto vagueness. is void for II, Constitution; by § art. II of the Colorado and addition, issue is not before us. because unconstitutionally vague and overbroad. plaintiffs cross-appeal, allega have not filed a militia, rejected equal pro- The trial court part tions of error on the of the trial court which tection, pre-emption, post and ex claims. presented facto are raised in their answer but brief not thus, rulings appealed These have not been and for this court's review are defendants are not before this court. See note 5. {i.e., properly infra before us that the ordinance vio prohibition against post lates ex laws facto plaintiffs 3. The individual and the State of Colo- pre-empted by regulating and is state statutes collectively "plain- rado will be referred to as firearms). Douglas County See Bd. Comm’rs tiffs.” Comm’n, 919, 922, Public Util. 4n. (Colo. 1994). lengthy. 4. The trial court’s order is inter- clarity, initially only est of the order is set forth Constitution, 6.The Colorado like the constitution in its most basic form and a more detailed dis- states, many expressly guarantees other undertaken, analysis necessary, cussion and as purposes to bear arms for of self-defense below. property. and the defense of Four states have rulings 5. provisions The trial court made a number of to bear arms which are identical Const, appealed. Ill, 12; have not been Defendants have § to Colorado’s. Miss. art. Mo. Const, Const, sought following I, 23; II, 12; review of the issues: § § art. Mont. art. Const, II, § and Okla. art. 26. The constitutions I. Is the limited to bear arms in the home, twenty expressly guarantee other states indi- person, property defense of and a funda- purposes right? viduals the to bear arms for mental thus, closely analogous self-defense and determining II. Did the district court err in right guaranteed city’s governmental under the Colorado Consti- interest was limit- Const, Const, I, 26; regulating weapons § rapid ed to tution. Ala. art. art. with both a Ariz. Const, 26; I, 15; large magazine? § § rate of fire and a Conn. art. Del. Const. Const, I, 20; I, 8; improperly § § III. Did the district court inter- art. Fla. art. Ind. Const. I, 32; I, 7; pret by limiting prohibition Ky. para. § § the ordinance art. Const. Mich. Const. Const, Const, I, 130(h) 6; I, 1; only pt. § of listed of section art. Neb. art. N.H. 38— kind, any person keep owning possessing bear or a firearm of no home, person may preserve stating of his that while the state

arms in defense killing power game prevent in aid civil when property, or wild summoned, aliens, called legally shall be “it class of thereto same cannot disarm contained nothing deprive right guaran- but herein question; persons them of the practice of justify be construed to II of the Con- shall teed under article weapons. stitution, home, concealed carrying to bear arms in defense of property.” 62 P.2d at person Id. erred argue that the trial court Defendants Thus, we concluded that insofar concluding provision that this establishes “denies the of the unnaturalized statute in self-de- right to arms bear foreign-born keep and bear arms resident to Hardwick, 478 U.S. Bowers fense.7 See person be used in defense of 186, 191-92, L.Ed.2d 106 S.Ct. property, it contravenes the constitutional constitu- (identifying fundamental 265, Id. at guaranty and therefore is void.” concept in rights “implicit as those the tional holding, reaching 247.8 In 62 P.2d at its in this liberty” “deeply rooted of ordered required court not to deter- Nakamura was tradition”). Conversely, history or Nation’s right what the to bear mine status correctly argue plaintiffs that the trial and, accordingly, arms in was self-defense reached this conclusion. analysis regarding that decision no contains right impor- it is clear that this is an While right whether that is fundamental. right, equally clear tant constitutional is require case does not us to deter- that this ap- next occasion in this court right that fundamental. On mine whether II, 13, plied article was Lakewood v. section occasions, article we have considered several (1972). Pillow, 20, 180 Colo. 501 P.2d 744 In 18, II, yet found it have never section we Lakewood, constitutionality we reviewed the that necessary to decide accorded the status pos- municipal proscribing the of a ordinance Rather, consistently we conclud- have deadly weapon except any session or use of may regulate the exercise of ed that the state In voiding in home. the ordinance one’s as right police power its so under inherent overbroad, general it is so we observed “that long power exercise of is reason- as the prohibi- scope in its that it within its includes able. right to carry tions the on certain businesses applying engage in which can- The earliest decision of this court and to certain activities 13, Nakamura, II, People police power reasonably v. under the be article section not (1936). thus, 262, 62 P.2d In Naka 99 Colo. classified unlawful and mura, 23, prohibiting struck down criminal sanctions.” at 501 P.2d at we a statute Id. Thus, foreign-born “[djepending upon unnaturalized residents from 745.9 we held that Const, Const, 1, 2-a; I, 1; provisions specifically guarantee- § art. art. N.D. art. Or. Const, Const, I, 27; I, 21; right § § ing Pa. S.D. art. art. bear arms. Const, 24; I, 23; VI, § § Const. Tex. art. Utah Const, right of arms in defense I, 6; 1, 16; 7. The individuals to bear § Vt. art. Wash. Const. art. ch. Const, home, 22; person, property I, 24; Ill, and will be referred to § § W.Va. art. and art. Const, right to bear as the arms in self-defense. § Wyo. art. 24. guaranteeing self- In to bear arms in conclusion, support quoted for this we Farr, defense, II, 8. As § art. the Colorado Constitu- following passage from Smith Colo. is broader than of several tion the constitutions (1909): police power 104 P. "The merely guar- have states which been construed law, cannot the fundamental state transcend right” to bear antee the collective or "state’s be exercised as to cannot in such a manner work (though of the militia arms for maintenance abrogation practical provisions.” of its Naka guarantees Colorado's Constitution also Colo, mura, See, at 62 P.2d at 247. e.g., purpose). to bear arms for Const, Alaska Const, 19; I, 15; I, § § art. art. La. Haw. Const, Const, activities, I, 11; I, 30; examples § § S.C. the court art. N.C. art. 9. As such Const, Const, II, I, prohibit gun- § ”note[d] art. Ark. art. that this would See also ordinance defense”); smiths, pawnbrokers sporting goods (right § 5 to bear arms for "common stores Const, (same); pt. carrying part 1 art. Tenn. Const. on a of their busi- Mass. XVII from substantial I, (same). California, Iowa, Also, Maryland, appears prohibit art. ness. Minnesota, guns Jersey, transporting to and New Wisconsin have no individuals from from 385). circumstances, light all of these activities and Colo. of this fact entirely any others free of criminal we held: culpability yet question the ordinance ef- clearly legislature It is reasonable for the fectively prohibitions includes them within its regulate possession of firearms Again, and is therefore invalid.” Id. those who are under the influence of alco- conclusion, reaching this we were neither Lakewood, drugs. hol or Unlike required to determine the status of the proscribes only the statute here that be- any analysis to bear arms nor was there rationally havior which can be considered

whether that is fundamental. illegitimate, properly prohibited and thus police power. state’s exercise of its Blue, Similarly, People 190 Colo. Accordingly, the statute does not restrict upheld 544 P.2d 385 we the constitu- any exercise of tionality prohibited of a statute which is not overbroad. by persons firearm convict- Id., 595 P.2d at 230. holding, ed of certain crimes. so we first recognized that the Colorado Constitution every inAs other ease of this court con- guarantee does absolute to bear struing article the Garcia circumstances, arms under all id. at necessary court did not find it to determine P.2d at and concluded that our “[i]n the status of the arms self- view, legitimate the statute here is a exercise Rather, defense. the considered police power.” again, the Id. Once we whether the law at issue constituted a rea- required were not to determine the status police sonable exercise of power the state’s right the to bear arms in self-defense but and was therefore constitutional. rather, only question we resolved the clear, As these eases make when confront- legiti- whether the law at issue constituted a challenge validity ed with a to the of a stat- police mate exercise of power. the state’s regulating ute or ordinance the exercise of right guaranteed the to bear arms under Likewise, Ford, 459, People in v. 193 Colo. II, article section 13 of the Colorado Consti- (1977), 568 P.2d 26 we concluded that a “flat tution, reviewing court need not determine prohibition” right on the of certain felons to Rather, ques- the status of that the possess subject guaran- firearms was to the tion in each case is whether the law at issue 462, tee of article section 13. Id. at 568 constitutes a reasonable exercise of the concluding P.2d at 28. In that the constitu- police power. state’s required recognition tion of an affirmative defense to this statute if a defendant shows approach This is in accordance with the purpose possessing weapons that his in was majority construing vast of cases state con- home, person, the defense of his proper- provisions guarantee stitutional which in- ty, the court never determined the status of right dividual’s to bear arms in self-defense. to bear arms in self-defense. That to bear arms is not an subject unlimited and is to reason- Garcia, Finally, People 550, v. 197 Colo. regulation accepted principle able is an upheld, against 595 P.2d 228 we among jurisdictions. other vagueness challenge, and overbreadth of the eases which have decided this issue constitutionality prohibited of a statute which position legislation have taken the possession person firearm regulates prohibits intoxicating liquor under the influence of or use of certain arms must be reasonable dangerous so, of a drug. Doing narcotic or police power. to be a valid exercise of the recognized we to bear arms “[t]he absolute, Cleveland, 35, is not and it can be restricted Arnold v. 67 Ohio St.3d 616 (1993) (citations omitted). police 163, the state’s valid power.” exercise of its N.E.2d 172 552, Blue, 633, Id. at (citing Byrne, 595 P.2d at 230 190 See also Sklar v. 727 F.2d 637 Colo, Furthermore, Lakewood, 23, places such it unlawful for a of business. it makes of self-defense.” 180 501 person possess a firearm in a P.2d at 745. place purpose vehicle or in a of business for the 330 York, (same); v. New Cir.1984) Grimm

(7th (right (Ct.App.1983) under the to bear arms (1968) 525, subject to substantial 289 N.Y.S.2d 358 Illinois Constitution is 56 Misc.2d Fennell, (same); North Carolina v. police power); 95 regulation under state’s Leonard, 108, (1989) (same); 140, 413 v. Conn.Supp. Rabbitt N.C.App. 36 382 S.E.2d 231 (1979) subject Ray, (right 72, v. Pa.Super. to bear arms 272 Commonwealth A.2d 489 218 Rinzler (1970) Princeton v. police power); (same); reasonable exercise A.2d 275 Carson, (Fla.1972) (right to Buckner, v. 457, 262 So.2d 661 139 180 W.Va. 377 S.E.2d subject regu police power (1988) Rupe, (same); arms valid State v. bear 101 Wash.2d State, Carson v. lation); 241 247 (1984) Ga. v. (same); 683 P.2d 571 Carfield (1978) (“the each State, question (same).10 72 S.E.2d (Wyo.1982) P.2d 865 regulation being particular case whether the above, only Arnold v. cases Of all the cited reasonably legitimate within involved is Cleveland, 67 Ohio St.3d 616 N.E.2d police power, or ... under whether Leonard, Rabbitt v. Conn.Sup. depriva regulation, to a [it] name of amounts (1979), expressly reach a 413 A.2d 489 (quotations right”) tion of the holding question of the status of the Grove, omitted); Kalodimos v. Morton to bear arms. Indeed these are 308, 315, 470 N.E.2d Ill.2d 83 Ill.Dec. only cases we aware of that determine (right to bear arms under individual to bear arms whether the subject Illinois to substantial Constitution is right.11 Both is a fundamental self-defense regulation police power); under the state’s is funda- of those cases conclude the State, Matthews Ind. 148 N.E.2d subject to the mental but nevertheless (1958) (right bear arms police pow- reasonable exercise the state’s State power); police reasonable exercise of er. Hamlin, 497 So.2d 1369 (La.1986) (same); Brown, court, People v. precedent on the of this 253 Mich. 235 N.W. ‍‌‌‌​​​​​​​​‌‌​‌​​‌‌​‌​​‌​‌​​​‌‌​‌​​‌​​‌‌‌‌‌​​​​​‍Based (1931) (same); LaChapelle, State v. conclude that trial court erred we (1990) (same); 458, reaching question to 451 N.W.2d 689 the of the status be Neb. Dees, right guaranteed State v. 100 669 P.2d 261 accorded the under article N.M. However, Wolstenholme, outright posses prohibitions Application on the 11. In In re 1992 10. of (Del.Super.1992), ad WL 207245 the court of all firearms been held to violate sion have question the was a funda dressed whether there protections. e.g. City See Las of right carry weapon. to The mental a concealed Moberg, Vegas v. N.M. 485 P.2d there was in v. court held not. The courts Sklar (statute prohib (Ct.App.1971) completely which (7th Cir.1984) Byrne, 727 F.2d 633 and Kalod unconstitutional; right bear it its the to arms is Grove, 483, 83 Ill.Dec. imosv. Morton 103 Ill.2d it); right opposed regulating denies the as to (1984), presented 470 N.E.2d 266 were with (invali Brickey, re 8 Idaho 70 P. 609 question right of to bear arms the whether the dating carrying prohibiting statute the of guaranteed under the Illinois Constitution is a cities, towns, villages, the state’s in right. that Neither court resolved concluding may regulate legislature that the but concluded, question but based on the text arms). prohibit right the Constitution, history right Illinois the of the that subject to bear arms in Illinois is to extensive significant plaintiffs to It is note that while regulation police power under the state’s argue right because bear is that the arms therefore, regulations that the held fundamental, any right must restrictions on that scrutiny subject bear arms are not to the strict subject scrutiny, they point to strict fail to be Sklar, of review. 727 F.2d at 637 standard ("[sjince published opinion scru- even one where the strict narrowly the state constitutional tiny applied to a standard of review has been police by power, the fact that circumscribed regulation, firearms and we are aware of none. Chicago ordinance as a whole affects noting Though explained by this could be that trigger compelling does not state interest striking regulations several cases down arms ordinance”); Kalodimos, analysis of the 83 Ill. prior development were decided of the "strict 494-95, (applying Dec. at N.E.2d at 277-78 test, see, State, scrutiny” e.g., Wilson v. 33 Ark. prohibiting the rational basis test to an ordinance (1878); State, (1 Kelly) Nunn v. 1 Ga. 557 (1846); grounds handguns of that on the Litt.) Commonwealth, (2Ky. Bliss v. "the to bear arms secured the Illinois Constitution, 12 Am.Dec. the vast prior exist did not addressing regulations right to bear cases on the subject infringement ... to substantial in power police though oper self-defense decided after the arms in have been even it exercise level”). development the individual test. ates on weapon weapons section 13 of the Colorado Constitution of Denver a de- 11. holding and in that the is fundamental. weapons....” fined herein as assault analysis contrary and conclusion is Such trial court concluded that this section is un- body precedent to the entire of this court. constitutionally “limiting overbroad because weapons the use of such in such a manner Furthermore, we hold that the trial court weapons legally can not be used for reviewing erred in the ordinance under the purpose person, property of defense of scrutiny strict standard of review and in home is in direct conflict with article asking supported whether the ordinance was section 13 of the Colorado Constitution.”14 compelling narrowly state interest and tailored to meet that interest. See Evans v. facially “A statute is if sweeps overbroad Romer, (Colo.) 1270, 1275 (recogniz 854 P.2d constitutionally within protected, its reach ing infringe that laws which on fundamental unprotected, People well as activities.” rights judicial scrutiny), to strict (Colo.), Ryan, 939-40 cert. de — denied, U.S.-, 419, 126 cert. 114 S.Ct. —nied, -, U.S. S.Ct. (1993). L.Ed.2d 365 The court invalidated (1991). L.Ed.2d 140 to bear arms ordinance, one section 38- may regulated by the state under its 130(b)(1)(b),12 grounds on the that it was not police power Thus, in a reasonable manner. supported by compelling state interest and we conclude that the trial court in erred another, section, scope limited the 38- holding restricting types that 130(h), prohibit only so that it would those exercising be used in weapons for which defendants had shown a per bear arms self-defense constitutes a se compelling banning. state interest See violation of that above, note For the reasons stated infra subject we hold that the trial court erred Ill ing provisions these scrutiny to the strict standard of review.13 question We turn next to the whether the

Similarly, ordinance is constitutional under we conclude that the trial court 38-130(e) analysis holding erred section outlined above. An act is within unconstitu- police power if permit posses- reasonably tional because it does not state’s it is legitimate governmental sion of related to a interest self-defense. provides health, That public safety, such as the “[i]t shall be un- or welfare. store, carry, manufacture, Gross, keep, (Colo.1992); lawful to People sell 830 P.2d 933 Pharr, possess or otherwise City People (Colo.1984); within the and 696 P.2d 235 overbreadth, Though 12. the alleged trial court's order refers to In order to find facial the "(b)(l)c," § actually it is clear that the court is application overbroad of the statute must be real. 38-130(b)(l)(b) discussing § which refers to sem- Batchelor, (Colo. People v. shotguns folding iautomatic awith stock. Sec- 1990). prohibit pos The ordinance does not 38-130(b)(l)(b) only tion is the section of the thus, handguns session of all and this "over- specifically shotguns ordinance which refers equipped to application broad” ordinance is not real. folding with stocks. 14.Paradoxically, the trial court concluded that 13. We also note that the trial court erred in pre- this section is unconstitutional because "it applying analysis § an overbreadth 38- constitutionally protected cludes conduct” in 130(b)(1)(b). concluding After that this section order, spite of the fact that earlier in its the court supported by compelling was not state inter- which, narrowly finding held that “the ordinance is tailored to scrutiny, est—a under strict is previously compelling gov- sufficient to invalidate the section—the court serve the determined say concealability Thus, went on to that if was a suffi- ernmental interest. the ordinance does weapons, cient reason to ban these then hand- not violate article and is not con- guns prohibited. too could be While this reason- stitutionally overbroad as it relates to the ban on correct, ing may be the fact is that this section weapons.” assault not, by any imagination, pur- does stretch of the These two conclusions are irreconcilable be- port possession handguns. to ban the of all did, As- infringes cause a law which on a fundamental suming, as the trial court that such a ban unreasonable, constitutionally permissible long is so as it would be this section of the statute supported by compelling governmental grounds pro- cannot be overbroad is inter- that it possession handguns. narrowly hibits the est and tailored to serve that interest. possession weapons assault P.2d and sale of Sapp, 194 Colo. Bushnell v. (1977). in premised city’s curbing interest was on the particularly As homicides. common crime— legislative con- The statement of intent suggests, very signifi- has а sense state “[a] tained in ordinance reads as follows: Gross, crime.” preventing cant in interest hereby city council finds and de- The French, People v. 830 P.2d at 941. See also weapons po- use of assault clares that the (Colo.1988) (preven- P.2d 1373-74 health, safety ses threat to the and secu- interest). compelling tion of state crime is a rity citizens of the of all and ordinance, an There can no doubt that Further, that of Denver. council finds crime, legiti- serves prevent intended to capable rap- weapons are both of a governmental sufficiently mate interest capacity id as of a rate of fire as well strong justify its enactment. inordinately large fire an number reloading designed and are rounds without addition, presented to the the evidence military antipersonnel primarily for use. clearly trial showed city council finds law enforce- The to this For reasonably related interest. agencies report as- ment increased use of Zavares, example, police the chief of A.W. weapons sault for criminal This activities. Denver, weapons “assault testified that has resulted a record number of related becoming weapons drug of choice for injuries and to citizens and law homicides criminals.” traffickers and other Evidence is, therefore, It enforcement officers. indicating presented also was that assault city place intent of the council reason- weapons every were used one ten necessary able and restrictions on the sale Alcohol, crimes in a Bureau of that resulted weapons and of assault while Tobacco, trace and Firearm 1988-89. placing on the no restrictions of citi- Further, evidence indicated that weapons zens primarily to use which are thirty weapons nearly percent accounted for designed hunting, target and intended for crime, organized gun of all firearms traced practice legitimate sports other and or re- terrorists, trafficking, and over and twelve protection and the creational activities percеnt of crimes drug related nationwide.15 home, property. person and 38-130(a). unique weap- The characteristics of assault coupled prevalent use ons with the of such city expressly sought pro- The council health, weapons purposes safety, security mote for criminal establish that of the by enacting weapons pose citizens of Denver the ordinance. such a substantial threat to the specifically, prohibiting safety More it declared health and of the citizens of Denver.16 prevalent types places use of assault for trade safety of crime and in other very purposes recognized by public of the criminal has been and the lives American Tobacco, Alcohol, (ATF), proliferation peril. immediate of these Bureau of Firearms firepower Department po- agency their massive of the United States also Federal, Treasury responsible ses a the lives tremendous threat to the enforce- police Report ment laws. State and local officers who are out- of federal firearms See gunned by they Working Group Recommendations the ATF on the criminals encounter on the of streets. Importability Certain Ri- Semi-Automatic of Director, 1989). Higgins, fles, Stephen (July Stephen of E. ATF Director E. Declaration ATF, South, Higgins, Brady, Inc. v. in a sworn declaration filed in filed in Gun federal court, (N.D.Ala.1989). F.Supp. 1054 stated: primary weapons reason that action was 16. Two of the salient features of assault immediate stop importation necessary particularly threatening to of semi-auto- which make them are assault-type capability rapid rifles was the in- their for a rate of fire matic dramatic types weapons ability many reloading. of these to rounds without crease in the use of in fire public safety presented One crime and the threat to enthusiast has characterized "the assault capability daily special pistol's being] Almost forte deliver- [as such increase.... ATF of State, Federal, agents po- ing large impressively number of and other and local shots in staccato, assault-type rapid, spread weapons roaring pause need lice see the of without magazine.” general briefly It is the of law even Lewis, to slam in a fresh J. street. consensus ever-increasing Digest Weapons that the Book Assault enforcement officials The Gun (2d 1989). presence assault-type drug rifles in the illicit ed. crime, addition, supports the evidence at trial ic effect on this fact is irrelevant for weapons easily that which are con- purposes.17 conclusion statute is “[A] cealed, shotguns equipped with fold- such invalid under the Constitution because it stocks, ing pose greater threat to law en- might gone have farther than it did [and] public large forcement officials and the may time, step reform take one aat address- concealability because their makes them bet- ing phase problem itself to purposes. ter suited to criminal legislative seems most acute to the mind.” 641, 657, Morgan, Katzenbach v. 384 U.S. Finally, presented the evidence to the trial 1717, 1727, (1966) (quo- S.Ct. 16 L.Ed.2d 828 sought court established that Denver has omitted). tations and citations See also prohibit approxi- Peo- use Elliott, ple v. mately forty Colo. 525 P.2d 457 firearms. The evidence also (1974). currently approxi- established that there are 2,000 mately purchase firearms available for judgment, presented our the evidence and use in the United States. Given the undeniably to the trial court demonstrates weapons regulated by narrow class of reasonably that the ordinance is related to a ordinance, hesitancy holding we have no in legitimate governmental interest and consti- impose that the ordinance does not such an tutes a valid police exercise of the state’s onerous restriction on the to bear arms power on the in bear arms self- illegiti- as to constitute an unreasonable defense. police

mate power: exercise the state’s literally there are hundreds of alternative

ways may in which citizens exercise the IV carving to bear arms in self-defense. While argue Defendants that the trial cаtegory out a small of arms which cannot be concluding in purposes provi used for erred that certain of self-defense undoubted- ly ways sions of unconstitutionally limits the in which the the ordinance are bear exercised, arms thereby vague. inquiry be the barriers The basic in a void-for- significantly vagueness created do not interfere with challenge is whether the law for contrary, To the as the evidence requires doing bids or of an act terms shows, plainly ample weapons there are vague persons ordinary intelligence so that fully available citizens to exercise their necessarily guess meaning must as to its right to bear arms self-defense. Gross, application. People differ as to its (Colo.1992); People 830 P.2d argue Plaintiffs is not Becker, (Colo.1988). In eval reasonably related to the state’s interest be- uating vagueness challenge, we are mindful weapons only cause assault account for one- “statutory language must strike a bal percent half of one of the estimated 200 potentially conflicting ance between two con privately weapons million owned in the Unit- specific enough give cerns: must be fair roughly per- ed States and are used in one conduct, warning prohibited yet “gun of all must cent crime.” While these statis- sufficiently support general prob tics the inference that a ban on address the weapons unlikely during to have a dramat- lem under varied circumstances and weapons capable rapid The trial court concluded that Denver had fact that assault of a compelling banning fire, shown a state interest they rate will fire as fast as the those assault which had both of these pull trigger, shooter can that makes them a features. exist in order to It concluded that both features had to greater public safefy threat to the and welfare as justify referring the ban because will, firearms, compared they to other not that “greater to semiautomatic with a rate being weapons, always virtue of fire at a was, alone, standing meaningless of fire" inas- greater compared types rate when to other only much as "all semiautomatics fire one and weapons. (cid:127) per trigger pull one shot and that all semiauto- rapidly matics can fire no more than the shooter support 17. These statistics the conclusion that squeeze repeatedly trigger.” can prohibiting weapons of assault While it is true that semiautomatic firearms does not constitute an unreasonable exercise of pull trigger, fire one round for each of the we police power. disagree the state's with the trial court's conclusion that meaning. this characteristic is without It is the Lamm, concluded that The trial court also Parrish v. changing times.” 130(b)(1)(c) unconstitutionally (Colo.1988). Moreover, is section P.2d 38— weap defines an assault depends vague. on That section vagueness test of the strictness pistols that semiautomatic “[a]ll to inhi- to include challenged law threatens whether the having the same constitutionally of rifles protected are modifications the exercise bit Garcia, make, design a shorter People v. 1366-67; and action but caliber Id. rights. (1975). no stock or modifications 347, 349, 688-89 barrel and rear 541 P.2d Colo. designed ac weapons originally to automatic constitutionally protected behav- When such twenty-one capacity of inhibited, degree cept magazines with a greater a ior The court concluded or more rounds.” required than when a law does specificity is following vague for the constitutionally protected this section was liber- that implicate not Parrish, at 1367. reasons: ties. comply this attempting to with Persons phrases court found two trial only guns also learn not what section must 130(b)(1) impermissi- to be

used in section 38— from, designed also pistol was but their First, the reference bly vague. it stated that history design of the ancestor learn the length may have “a shorter if it automatic guns [an] to determine was vague be firearms” was than recreational “originally designed accept weapon length guess what “citizens must cause twenty-one magazines capacity with Second, possesses.” ‘recreational firearm’ if it has “the or more rounds” or phrase greater ‘a found that “the the court design. action These characteris- same” definition, meaningful no rate of fire’ has by readily [ascertained] tics can not be have the same rate all semiautomaties since intelligence. person of common of fire.” 38-130(b)(l) argue conclusion is erro- agree section Defendants this do not that We that is “not unreasonable” vague. expressly That states neous because section possessing “may require persons purchasing or weapon include” certain an assault characteristics,” pistol if including pistols to determine it is an assault “general those 38-130(b)(l)(c). by section invalidated as defined characteristics contention, argue defendants weapon actually support classified as of this vague. No banned, publications are available that a number of weapon, and thus under an assault provide all the information needed to language of sec- which the ordinance based on the 38-130(b)(l). Rather, pis- pistol is an assault the definition of determine whether tion judgment, fact not charac- tol. In our does weapon “shall include” the an assault 130(b)(1)(a)— section of the ordinance constitu- render this teristics set forth section 38— (f) only “weapons herein as those defined tional. weapons” in section 38- are banned First,

130(e). vagueness determined is not Consequently, we conclude that be- it is reasonable to re 130(b)(1) not demar- reference to whether cause section does 38— given quire to assess whether a the ordi- individuals cate what are covered supra p. them. See applies 334. Sec nance, language that neither law ond, simply any- persuaded be doing of we are prohibits requires nor such, publications exist which contain the not unconsti- cause thing.18 As this section is design needed to establish the tutionally vague there is little if risk information history pistol, of a that this saves section 38- language might inhibit the exercise that this 130(b)(1)(c) being vague. per- from Whether to bear arms. by noting parenthetiсally the above recognized We note that while this fact 18. The trial court 130(b)(1), pursuant § "an 'assault quotation re- taken from the trial court’s order 38— weapon' may Whether contain certain features. 38-130(a)(l), § it is clear that the court ferred to present particular weap- on a those features are on is not determinative that (b)(1), (a)(1) referring § as there is no was is an the ordinance. determining weapon.' The characteris- 'assault 38-130(a)(l)a are set forth in Sections tics through f of the ordinance.” necessarily irrespective ordinary intelligence must full force and effect of section sons 130(b)(1)(c). meaning ap- only finding result of an ordinance’s guess as to 38— vague does not turn on whether some this section is that the reach of the plication determining proper ap- slightly for ordinance is narrower than as enact- source exists plication of a law. Unlike the ordinance ed. Denver, Dog in Colorado Fanciers

issue legislative enacting As for in intent (Colo.1991), 820 P.2d 644 the assault ordinance, there is no evidence that Denver specify does not source which ordinance passed would not have this law had it known defining pistol aid in what an assault would 130(b)(1)(c) that section was unconstitu- 38— is, nor does it state where such a source can contrary, tional. To the Denver’s intention be found. severability clearly to allow for is in set forth 130(b)(1)(c) provide does not Section 38— municipal provides, part, its code in which person to enable a sufficient information hereby council “the declares that intelligence to determine whether a common regards provisions these of this Code and they may purchase pistol possess or has a regulations promulgated all rules and here- design history bring of the sort which would Denver, Colo., under are severable.” Rev. coverage. trial it within this section’s As the (1989). Mun.Code, § 1-12 concluded, correctly ascertaining the Consequently, we conclude that the offend- design history design pistol and action of a is ing section of the ordinance is severable from something expected that сan be of a portions those of the ordinance that are con- person intelligence. Consequent- common stitutional. ly, correctly conclude that the trial court we 130(b)(1)(c) that section is un- determined 38—

constitutionally vague. V section, though that this We conclude conclusion, we hold that the trial court vague, is severable from the remainder of the holding erred in that the to bear arms rule, general if ordinance. “As a a statute is self-defense, II, guaranteed by article sec- part in one constitutional and unconstitution tion is a fundamental a de- Such another, provision al in the constitutional necessary in analyzing termination is not and the unconstitutional be sustained challenge premised on article stricken.” Lakewood v. Un Colfax also hold that the trial section 13. We Ass’n, Inc., (Colo. limited concluding court erred 1981). provisions “Whether unconstitutional scrutiny must to strict in order to are excised from an otherwise sound law Thus, constitutionality. it erred evaluate its (1) depends autonomy on two factors: (1) requiring in: defendants show portions remaining after the defective supported compelling ordinance is state (2) provisions been have deleted narrowly interest and tailored to meet that enacting legislative body.” intent of the Id. interest; limiting prohibition on those 130(h) remaining weapons only It is clear that the sections of listed section 38— the ordinance are autonomous from section include those which meet the defini- 130(b)(1)(c). 130(b)(1);19and, attempted This section tions of section con- 38— 38— 130(b)(1)(b) proscribe possession type cluding of one of as- that section sec- 38— 38-130(e), unconstitutionally weapon. provisions of tion are over- sault The other ordinance, proscribe they infringe on the broad because scope and dictate the arms. affirm its conclusion that other bear We 130(b)(1)(e) exceptions given vagueness. prohibition, to the their void 38— ruling conclusion of the trial court obviated the Because we conclude that the which decid- This erroneously moot was 130(h) rendered that claim plaintiffs' need to address claim that 38— ed, the case must be remanded to the trial court unconstitutionally vague because over half the vagueness plaintiffs' in order to address lenge chal- weapons listed in that section either are not 8-130(h) §to in a manner not inconsis- semiautomatics or do not exist. opinion. tent with this action, center- a. All semiautomatic part, reversed Judgment affirmed magazine a detachable fire rifles with remanded with directions. part, and case (21) twenty-one or capacity a of with rounds. more VOLLACK, J., result. concurs shotguns a All with b. semiautomatic ERICKSON, J., dissents. magazine capacity of folding stock or a (6) or both. than six rounds more APPENDIX pistols that are c. All semiautomatic having of rifles the same modifications Assault 38-130 Section make, design a caliber and action but (a) city The council Legislative intent or mod- barrel and no rear stock shorter use of hereby finds and declares weapons original- of automatic ifications weapons poses a threat assault magazines ly designed accept with a health, safety security all citizens of and (21) twenty-one capacity of or more Further, of Denver. and rounds. weapons are council finds that assault Any firearm which has been modi- d. rapid a rate of fire as well capable both of operable weapon an fied to be assault inordinately capacity a to fire an as of herein. as defined reloading large of rounds without number Any part parts e. or combination military designed primarily for or are and to convert a fire- designed or intended antipersonnel use. weapon, including a arm into an assault city council finds that law enforce- The magazine capacity with a detachable report use of as- agencies ment increased (21) rounds, any twenty-one or more or weapons for criminal activities. This sault parts from which an as- combination in a record number of related has resulted may readily weapon assembled sault injuries and to citizens and law homicides parts possession if those are or is, therefore, It еnforcement officers. person. the control of the same under city place reason- of the council to intent Any weapon in subsection f. listed necessary restrictions on the sale able and (h). weapons while and of assault (2) cartridge Fixed shall mean that self- citi- placing no restrictions on the case, consisting contained unit of the primarily zens to use primer, propellant charge projectile hunting, target designed and intended for projectiles. or sports practice legitimate and other or re- (3) protection box, Magazine creational activities and the or shall mean drum home, person property. which holds and feeds other container rifle, into a semiautomatic ammunition (b) following words Definitions. shotgun pistol. or section, phrases, in this when used (4) weapon original- mean a Pistol shall meanings respectively as- shall have these ly designed, made and intended to fire a to them: cribed (bullet) (1) projectile from one or more (1)Assault weapon. general char- in one hand and barrels when held weapon an in- acteristics of having: A following features: shorter clude integral part a. A chamber as firearms; length than recreational permanently aligned or with the bore stock; folding a modification of an auto- breech-loading cyl- having chambered designed for originally matic firearm arranged cocking of the inder so use; military greater rate of fire or trigger hammer or movement of the ro- reasonably firing capacity than neces- brings cartridge in it and the next tates sary legitimate sports, recreational firing; line with the barrel for protection activities and shall include designed following A short stock to be firearms b. all with angle gripped by hand and at an one characteristics: (8)Any which has been permanently to modified either render extending line of and below the inoperable permanently or to make it a bore(s). longer device no defined as an assault (5) designed a weapon shall mean Rifle weapon. redesigned, or made or remade and in- (d) Supplemental provisions. Except as from tended be fired the shoulder or herein, specifically provisions stated hip designed redesigned and or or made independent supple- this section are of and energy or remade to use the of the any provisions law, mental to other and explosive cartridge only in a fixed to fire nothing prevent shall a device defined as single projectile through a a rifled bore weapon in an assault this section from also single trigger for pull each of the and being regulated provision under other any weapon shall include such which law. may readily be a restored fire fixed (e) weapons Possession assault unlaw- cartridge. store, It carry, shall be unlawful to ful. (6) weapon Semiautomatic shall mean a manufacture, keep, pos- sell or otherwise projectile single which fires a for each City County sess within the and of Denver single pull trigger of the which automati- weapon weapons a or defined herein as cally firing chambers the next round for weapons, except assault that this subdivi- employs magazine. and which a apply sion shall not to: (7) Shotgun weapon shall mean a de- (1) federal, Any govern- state or local signed redesigned, or made or remade agency any ment or to sworn members and intended to be fired from the shoul- agencies acting of said within their offi- hip designed redesigned der or capacities. cial energy and made or remade to use the (2) Any weapon being assault which is explosive shotgun in a fixed shell prop any used as a movie for motion through to fire a smooth bore either a (ball shot) picture program or television which is projectiles number of or a being in part filmed whole or in within single projectile pull trig- for each of the if, prior ger of Denver any weapon and shall include such use, police department to such may readily restored to a fire writing notified in advance in of the shotgun fixed shell. date, time, location, production schedule (c)Specific weapons not included. As days upon which such shall use take section, weapon used assault does place type and the and serial numbers of any following: not include of the the firearms. (1) weapons All that do not use fixed (3) transportation of assault cartridges, weapons pro- all that were in weapon through city by a nonresi- prior manually oper- duction all legal possession dent who is of an weapons, ated bolt-action all lever-action weapon person carrying weapons, weapons, all slide-action all (f) permit issued under subsection single-shot weapons, multiple-barrel all purposes and under the conditions weapons, revolving-cylinder weapons,' all (b)(2) through set forth subsections weapons all semiautomatic for which (b)(5), Municipal Revised Code. magazine capaci- there is no fixed with a (f) (21) ty twenty-one exception. Any person or more Conditional rounds (21) available, age twenty-one years weapons all semiautomatic over the who exclusively weapon legally prior an assault clips, that use en bloc all obtained may production semiautomatic the effective date of this section ob- permit keep, possess prior to 1954 and all tain a store rimfire employ magazine. weapon said assault if: tubular (2) Any properly .22 firearm uses caliber Said identifiable original rimfire ammunition. its serial number. and contains Norineo, Poly Tech- Mitchell and a. (all mod- nologies Avtomat Kalashnikovs permit for a for each application An els). police weapon is filed with Military In- Action Arms Israeli b. (60) days sixty within department and Galil. dustries UZI pursuant to of this section date effective (SC-70). department AR-70 procedures as the c. Beretta such application shall contain establish. G3. d. CETME that identi- description of the firearm CAR-15. e. Colt AR-15 and including all identifica- uniquely, fies K-l, K-2, 1 and Max Max f. Daewoo numbers, name, the full marks and tion 2. address, fingerprints of of birth and date (FN/FAL, g. Fabrique Nationale such and the address where the owner and FNC. FN/LAR and such weapon will be stored h. FAMAS MAS223. department information as other H-93, HK-91, plaсe The appropriate. deem Koch i. Heckler & storage possession shall not be and and HK-94 PSG-1. the de- changed without ‍‌‌‌​​​​​​​​‌‌​‌​​‌‌​‌​​‌​‌​​​‌‌​‌​​‌​​‌‌‌‌‌​​​​​‍notification to j. and MAC 11. MAC 10 propqsed change in loca-

partment of the magazine. k. with detachable SKS weapon said will be trans- tion and when AMT, and SIG l. SIG 500 Series SIG may charge department ported. The PE-57. registration to exceed the fee for not Armory and Springfield m. BM59 depart- processing costs of the actual SAR-48. ment. Sterling MK-6 and SAR. n. (3) permit department The shall issue a Steyr o. AUG. identify weapon and shall which where it is to be stored. M62, M71S and M78. p. Valmet (4) required The information for the q. Armalite AR-180 Carbine. permitting of assault registration and (arm- Rifle r. Bushmaster Assault treated as confidential shall be gun). and shall not be made available to mem- s. Calico M-900 Assault Carbine. general public. council of the bers THE TAC-1 Carbine. t. Mandall that release of such information finds Company Car- u. Plainfield Machine inva- would constitute an unwarranted bine. personal privacy and could en- sion of safety

danger person life or at the M-68 Carbine. v. PJK premises where an assault Nighthawk. Arm w. Weaver permit located. The information (2) pistols: following specified All of the by city only application shall be used Action Arms a. UZI. purposes. for law enforcement b. Encom MP-9 and MP—45. (g) It is unlaw- Sale or transfer unlawful. 11. c. MAC 10 and MAC possession of an ful to sell or transfer d. INTRATEC TEC-9. pursuant weapon possessed to sub- (f) City County within Spectre Arms Auto. e. Mitchell Denver. Sterling f. MK-7. (h) weapons. Specific prohibited assault g. M-900. Calico carry, or otherwise It is unlawful to store (3) specified following All of shot- possess within the guns: followingweapons Denver Franchi 12 and LAW 12. a. SPAS hereby declared to be assault Company Equipment b. Gilbert all the except provided Striker provisions this section:

(1)All c. Encom CM-55. following specified rifles: however, disagree,

stitutional. I with the majority’s determination that this case does (4) by Other models the same manufac- require not us to decide whether the to firearms listed turer are identical bear arms a fundamental I there- except or for subdivisions separately fore emphasize my write belief enhancements, slight modifications or in- required by specific that we are issue to, cluding, folding but limited here, is, raised that whether the stock; adjustable sight; retractable case right, by arms is a fundamental proce- shooters; deflector left-handed. case, posture dural of this the relevant barrel; wooden, plastic shorter or metal law, case principles the fundamental stock; size; larger clip different caliber review, judicial to evaluate the ordinance’s rimfire; provided the caliber exceeds .22 constitutionality conformity with estab- bayonet mount. lished constitutional standards of review. (5) Firearms which have rede- been legal premise underlying from, renamed, signed renumbered or opinion prior is that our decisions where we patterned after one of the listed firearms II, have considered article section reveal (3) (1), (2), in subdivisions or those de- that, (4) regardless in scribed subdivision company production the or distribu- challenge when confronted with a to the country origin tion or the or validity regulat- of a statute or ordinance firearm which has or been manufactured ing the exercise of the to bear arms company sold another under a licens- guaranteed II, under article section 13 of ing agreement to manufacture or sell the Constitution, reviewing the Colorado nearly identical or identical firearms as court need not determine the status of that (3) (1), (2), in those listed subdivision or Rather, right. question the in each case is (4) those described in subdivision re- whether the law at issue constitutes a rea- gardless company production of the or police pow- sonable exercise of the state’s country origin. distribution or the er. (i) Specific magazine prohibited. It shall Maj. op. at 329. The therefore carry,

be unlawful to store or otherwise concludes that the trial court erred in reach- possess magazine which hold will or ing question the of the status to be accorded twenty-one be modified hold or disagree. the I arms. more rounds. light In of modem principles established (j) Penalty. Any person, сorpora- firm or defining rights, fundamental constitutional violating any provi- tion who is convicted of II, to bear arms under article sec- punished by sion of this section shall be tion of the Colorado Constitution is not a' ($100.00) fine of not less than one hundred which, my opinion, recog- in has been ninety-nine or more than nine hundred having nized as a value essential to individual ($999.00) dollars and a term of incarcera- society. liberties in our I would therefore (10) days tion of not less than ten nor more hold that to bear arms is not a eighty days. than one hundred right. fundamental (k) Violation; disposition. Upon a con- violating any provision viction of of this I. section, shall be confiscated scope At issue in this case is the of article 38-120, destroyed under section Dis- Constitution, of the Colorado position weapons. of confiscated provides person “[t]he of no (Ord. 669-89, 1, 11-6-89; No. No. Ord. keep and bear arms defense of his 11-27-89) 719-89, 1,§ home, person property, or in aid of the concurring Justice VOLLACK in the power summoned, legally civil when thereto result: in question; nothing shall be called but here- justify I concur in the result reached the ma- contained shall be construed to jority practice carrying that Denver weapons.” Ordinance No. 669 is con- concealed (3d 1986). 4,§ at right of ed. scope of the individuals Black’s Law (6th 1990) Dictionary

bear the Colorado ed. defines arms under Constitution “funda- conformity analyzed right” rights must modern with mental which have “[t]hose principles source, of constitutional re- explicitly established implicitly their and are or constitutionality ordi- view. of an When guaranteed, in the federal ... Constitution challenged, nance is must deter- and state constitutions.” appropriate mine standard of review scrutiny applied legis- Strict whenever a constitutionality order to evaluate suspect lative contains a enactment classifica- Zavala v. ordinance. tion or limits a fundamental Id. (Colo.1988). Denver, first 759 P.2d Thus, uphold a court will a law that step analysis in this determine rights restricts under the strict is, right, that a funda- nature of the whether scrutiny only necessary test if the law is right is involved. mental United States promote overriding govern- compelling Products, 304 U.S. n. Carotene narrowly mental interest and the law is tai- n. 82 L.Ed. S.Ct. lored to interest. meet that Supreme distinguished kinds of Court two rights and nonfundamental. —fundamental Supreme The United Court States has vary scrutiny applied Courts the level of only group found a limited of fundamental depending on the involved. Colora- rights expand and has been reluctant to do, recognized three we have standards of rights. list of fundamental constitutional See test,1 scrutiny strict review: the the interme- Romer, (Colo.) Evans v. test,2 scrutiny diate rational basis — (Erickson, J., denied, dissenting), cert. test.3 -, 419, U.S. 114 S.Ct. 126 L.Ed.2d 365 (1993). example, For the United States Supreme Su giv- States

The United Court has preme right Court has held that the rights en to marr protection added to fun- considered vote,5 y,4 right to right and the interstate trav right damental. A fundamental is a 6 contrast, rights. el are recognized that fundamental having has been a value Supreme recognize society. individual liberties Court has refused to a essential to in our Educ., education, Lujan right housing, State Bd. 649 fundamental v. Colorado wel 1005, (Colo.1982); payments, government employment. P.2d 1015 n. 7 also fare or see al., John right E. Nowak et Constitutional Law ch. Id. Where a fundamental not in- review, scrutiny right suspect 1. strict If no Under the standard of fundamental classifica- 3. involved, review, regulation exacting tion is then the needs to be most standard of an ordi rationally constitutionally permissi- related to a imposes significant nance a burden on purpose scrutiny. ble to withstand constitutional ly right with a fundamental interferes must Colorado, Regents v. Univ. Fritz 196 Colo. narrowly compelling drawn to a state interest in 335, (1978). 586 23 P.2d scrutiny. order to withstand constitutional Ev 1270, Earner, (Colo.), ans P.2d v. 854 1275 cert. Redhail, 383, 374, 4. Zablocki v. 434 U.S. 98 S.Ct. denied,-U.S.-, 419, 114 S.Ct. 126 L.Ed.2d 673, 679, (1978) (establishing L.Ed.2d 618 54 a Charnes, 194, (1993); Heninger 365 v. 200 Colo. right marriage striking constitutional (1980). 613 P.2d 884 requiring parent down a a statute without child custody support obligations but with child Supreme adopted approval remarrying); Loving The United States seek court Court has before 2. 1, 9, 1817, 1822, Virginia, specific an v. 388 U.S. 87 S.Ct. standard of 18 intermediate review for Connelie, (finding marriage L.Ed.2d 1010 that alienage, is a Foley classifications such as right invalidating 1067, against fundamental a law 291, 435 98 S.Ct. 55 U.S. L.Ed.2d 287 intermarriage). racial Lalli, 259, (1978); illegitimacy, Lalli v. U.S. 439 518, 523, (1978); S.Ct. 58 99 L.Ed.2d 503 Blumstein, 5. Dunn v. 405 U.S. 92 S.Ct. gender, Mississippi Univ. Women v. Ho- 995, 1000, (1972) (holding 274 31 L.Ed.2d that 718, 724, gan, S.Ct. 458 U.S. 102 73 fundamental). right to vote is (1982). standard, L.Ed.2d Under this burden is the state to show that the classifica- Guest, 745, 757, 6. United States v. 383 U.S. substantially important gov- to an tion is related (holding S.Ct. 16 L.Ed.2d 239 J.W., objective. ernmental 345, R.McG. v. Colo. right occupies posi- that the to interstate travel (1980); Green, People concept 615 P.2d 666 tion “fundamental to the Union”). of our Federal (1973). Colo. 514 P.2d 769 volved, right upon legislative is tested un- confers fundamental homosexu- enactment indulge sodomy. requires the als to Id. at the rational basis test which der upholding Georgia’s at 2843. In statute government that the ordinance is S.Ct. to show criminalizing sodomy, majority rationally legitimate inter- concluded related to a state is no fundamental un- there such Lujan, 649 P.2d at 1016. est. 191,106 der the Constitution. Id. S.Ct. at majority acknowledges that the important arms is an constitutional right but nevertheless believes that this case Romer, (Colo.), In Evans v. 864 P.2d 1270 — require does not us to determine whether denied, U.S.-, 419, 126 cert. S.Ct. Maj. op. is fundamental. at 328. L.Ed.2d 366 we addressed whether Despite principles well-established of law on determined, correctly grant the trial court guaran- interpretation of constitutional ing preliminary injunction, that Amend tees, majority the na- does address “may rights ment 2 burden ture of the involved and the level group.” an identifiable Because the trial Rather, majority scrutiny applied. right, ap court identified a fundamental avoids a constitutional review of the trial plied scrutiny a strict standard of review and ruling, court’s to bear arms is plaintiffs found that had demonstrated right subject scrutiny, a fundamental to strict that Amendment is unconstitutional. disposes and instead of this issue deter- reviewing infringed whether Amendment mining legit- that the ordinance constituted a right, engaged on a fundamental we in a police power. imate exercise of state’s analysis constitutional standard of review ultimately concluded that applied, my opinion, has participate equally political process in the standard, unprecedented legal an exercise a fundamental which is to strict which, police power, my knowledge, has judicial scrutiny. independent never been deemed an standard and which contravenes basic Further, Mayo v. National Farmers principles of the three standards of review. Union, (Colo.1992), 833 P.2d 54 we reviewed Further, acknowledging these established authorizing a statute household exclusion review, concepts of constitutional I am not policies. clauses in automobile The district convinced that we need not determine wheth- rejected the insureds’ contention that right er the arms is is not a bear by the classification created the statute un- right. fundamental constitutionally impaired their fundamental directly

right to travel. We addressed the right im- question, whether a fundamental is A. plicated by statutory provision. We guided by I am the constitutional review found that neither the statute nor the house- appellate this court and other courts have infringed hold clause on the funda- exclusion applied evaluating in a trial court’s decision right poli- to travel of insureds whose mental right implicated a in whether fundamental is cy contained such an exclusion. We there- particular a situation. passed that the mus- fore concluded statute Hardwick, per- example, For in Bowers v. 478 ter under the rational basis test. We 186, 2841, judicial 106 S.Ct. 92 L.Ed.2d 140 formed this standard of review based U.S. (1986),7 majority Supreme determination that the a of the Court on the district court’s engaged rights analysis by equal protection in chal- a fundamental statute survived directly addressing lenge.8 whether the Constitution Bowers, 1202, pass could

7. In Hardwick v. 760 F.2d 1212 law was unconstitutional unless it scrutiny (11th Cir.1985), rev’d, 186, test. Id. at 1213. strict 478 U.S. 106 S.Ct. 2841, (1986), Cir- 92 L.Ed.2d 140 the Eleventh courts, 8. Otherfederal and state when consider Appeals right cuit Court of ruled that the to enter ing lower court determinations that a fundamen associations, private into and intimate even with right implicated, applied tal is have a standard of gender, right. the fore, same There- principles review harmonious with established of v. Georgia the Eleventh Circuit ruled that the example, Trinsey constitutional review. For 342 going given procedural by principles approach adoptеd

The simplicity case, but does not follow appealing in its I that this case posture of this believe analytical framework we requires of whether a determination case, applied. present In the previously have right. right to bear arms is a fundamental ruling to hold the ordinance the trial court’s finding upon based unconstitutional was B. right to bear arms exist- that a fundamental trial court found that the Denver ed. The question of whether there is a funda- manufacture, sale, banning ordinance right not novel and mental to bear arms is possession of assault did not with- already by been decided several states. has scrutiny appeal, the stand strict review. On jurisprudence indicates that Recent state argue deprives plaintiffs that this statutory affecting firearms classifications right to arms them of the fundamental bear infringe held to a fundamental have not been argue that the trial court and the defendants Rather, right. opined courts have right concluding to bear erred legislature may impose regula- reasonable home, person, arms in the defense of tions over the constitutional Indeed, right. property is a fundamental promote safety arms order to wel- questions presented one of the for our re- way fare.9 An examination of the other view, opinion as conceded in the main 5, states have construed their constitutional right to arms footnote is whether the bear sup- further is a fundamental Guided the fore- to bear arms statutes10 Pennsylvania, appeals Commonwealth 941 F.2d 224 court of therefore determined — Cir.), denied, -, (3d pursue occupation cert. U.S. 112 S.Ct. does not lawful L.Ed.2d the Commonwealth 750 in constitute a fundamental constitutional Pennsylvania of challenge was faced with a constitutional voking scrutiny. strict Id. at 26 Cal. 1642— vacancy per to its election law which Rptr.2d 793. major political parties mits each of to select vacancy. candidate to run for the A voter and See, Comeau, e.g., 9. State v. 233 Neb. prospective challenged provision candidate State, (1989); N.W.2d Carfield unconstitutional, claiming it violated his Four (Wyо.1982); Rupp, P.2d State v. rights. teenth and Seventeenth Amendment State, (Iowa 1979); N.W.2d Bristow v. United ‍‌‌‌​​​​​​​​‌‌​‌​​‌‌​‌​​‌​‌​​​‌‌​‌​​‌​​‌‌‌‌‌​​​​​‍States District Court for the Eastern Dis (Ala.Crim.App.1982); 418 So.2d State Pennsylvania agreed Trinsey and trict of with Dees, (App. 100 N.M. declaratory judgment finding issued a the statute 1983). operate[d] unconstitutional "because abridge to vote of the citizens of the Forty-four guaran states have constitutional Pennsylvania.” Commonwealth of The district keep tees on the and bear arms. Six scrutiny court reviewed the statute under a strict provision states do not have a constitutional analysis because it found that a fundamental California, Iowa, Minnesota, Maryland, arms: implicated operation had been See, Jersey, e.g., New and Wisconsin. Hoskins v. Trinsey election law. v. Commonwealth Penn of State, (find (Ala.Crim.App.1984) 449 So.2d 1269 1338, (E.D.Pa. sylvania, F.Supp. 766 1345-46 ing prohibiting person that a statute a convicted review, 1991). On the United States Court of committing owning of a crime of violence from Appeals for the Third Circuit reversed the district possessing pistol deny right a does not a to court and held that "the Seventeenth Amend Leonard, arms); keep and bear Rabbitt v. 36 Pennsylvania does not mandate that con ment 108, Conn.Supp. (Super.Ct.1979) 413 A.2d 489 primary holding general a duct a before elec (holding permitting that a statute revocation of right tion” and that therefore "no fundamental pistol permit providing for cause and notice of infringed by Pennsylvania [was] the statute opportunity post- and for de novo revocation Trinsey, Accordingly, F.2d at 234. issue.” 941 hearing right revocation does not violate citizen's applied the Third a deferential standard Circuit arms); Friel, (Me.1986), State v. 508 A.2d 123 upheld provision. the Id. at 233-34. denied, rt. 479 U.S. 107 S.Ct. Similarly, ce v. Graham Kirkwood Meadows (1986) (holding a 93 L.Ed.2d 96 that statute District, Cal.App. Public Utilities 21 4th 26 prohibiting possession by of a firearm a convict (3d Dist.1994), Cal.Rptr.2d ap- the court of ed felon does not violate federal and state consti peals concluded that the trial court erred in arms); right keep People tutional Smelter, to and bear v. concluding plaintiff had a fundamental Mich.App. 437 N.W.2d 341 right public employment to continue his since (1989) (concluding prohibiting pos right that a statute trial court a the confused for guns impermissibly purposes judicial standard of session of stun fringe upon does not in of review person's keep right administrative with a fundamental a to and bear decisions defense). right purposes analysis. for of constitutional arms for his own Supreme ports my right that no fundamental to Court of belief Minnesota determined may reasonably that possess an assault exists. the state exercise its police power regulate carrying to the of load- Grove, Quilici Village In v. Morton of weapons by ed individuals the interest of (7th Cir.1982), denied, cert. F.2d public safety. The court further concluded 863, 104 78 L.Ed.2d 170 U.S. S.Ct. that no absolute common-law constitutional Appeals of the Court the Seventh right carry weapons for individual self- Village that of Mor Circuit determined the defense exists. ordinance, gun pro ton Grove’s control Kuri, handguns People In hibited the of within the 132 Misc.2d village’s prohibit pos (N.Y.City Crim.Ct.1986), border but did not the N.Y.S.2d 245 the firearms, infringe provision all did not on a session of held that a of the New York constitutionally protected right. penal requiring person The court law that a with a valid appeals pistol permit special determined that the was statewide per- obtain a safety properly protecting carry possess weapon directed at mit to within the citizens, city rationally of Morton health Grove was New York is related to the police pow legislative goal ensuring densely valid exercise of Morton Grove’s order er, case, appellant’s populated high-crime and did not In violate area. rights guaranteed People agreed the Illinois Constitut asserted and the court privilege carrying gun ion.11 does not rise right.13 the level of a fundamental Brown, (Me.1990), In State v. 571 A.2d 816 Club, defendant, felon, challenged a convicted Fresno and Pistol Inc. v. Rifle (E.D.Cal. pos- Kamp, him F.Supp. the Maine statute forbade Van de 1990), ours, ground factually sess firearms on the that it violated a case similar to an right brought validity challenging his state constitutional to bear arms. action was regulating The court determined that the statе constitu- a California statute the manufac keep weapons. tional bear arms is not an ture and transfer of assault possession-by-a-felon absolute and the district court held that the statute violated permissible rights statute does exceed the neither conferred the Second regulation bounds of reasonable under the Amendment of the United States Constitu police power.12 privacy rights guaranteed by state’s constitutional tion nor federal and California Constitutions. Furthermore, Application Atkin- son, (Minn.1980), plain- upheld 291 N.W.2d 396 Several courts have firearms stat- tiff, seeking carry gun against equal challenge by protection a loaded in his car utes traveling public highways applying no while was a rational basis test since funda- handgun permit. of a denied issuance The mental was affected.14 Sklar I, jurisdictions § 11. Article of the Illinois Constitution on a wealth of cases from other procedur- "Subject only police power, readily distinguishable reads: to the which are on a keep of the individual citizen to and bear al basis. A careful review demonstrates that in cases, infringed." except Byrne, arms shall not be for Sklar v. none of these infra, rule whether discussed did the trial court I, 12. Article of the Maine Constitution to bear arms is a fundamental "Every keep citizen has a states: Maj. op. provide therefore at 330. These cases ques- bear arms and this shall never be support majority's proposition limited for the tioned." procedural postures since the of these cases dif- significantly present fer from the case. Constitution, § 13. of the New York Article engaged Law, I am aware of no cases that have not Rights regulated Civil states: "A well mili- rights analysis state, in a fundamental where the trial being necessary security tia to the of a free right court either determined whether the to bear right people keep the of the and bear arms right upheld arms is a fundamental the consti- infringed." N.Y.Civ.Rights cannot be Law art. tutionality regulating right the 1992). of an ordinance (McKinney § 4 Byrne, example, bear arms. For in Sklar v. (7th Cir.1984), framing question the district court deter- 14. In the. as to whether the F.2d 633 firearms ordinance' does not in- ordinance constitutes reasonable exercise of mined the right police power engaging fringe any and there- the state’s without in a federal constitutional applied rights analysis, majority the basis standard of review fundamental the relies fore rational (7th Cir.1984), trigger compelling analysis Byrne, plain- the state interest 727 F.2d 633 brought 1983 action chal- of the ordinance. tiff a U.S.C. constitutionality city lenging of a fire- the Id. at 637. prohibited regis- arms ordinance which the Similarly, Application In re Wolsten of specified handguns after a date. tration holme, (Del.Super.1992), the WL handgun appeals held that the The court of right court determined that a fundamental right a fundamental ordinance did not affect bear arms did not and a restriction or exist Although case suspect classification. the carry condition on a license to a concealed equal protec- on a federal

was decided based deadly weapon may imposed without vio analysis, tion the Circuit determined Seventh lating applicant’s right the to substantive due ap- that a rational basis standard of review process. The court concluded the Due standard, and, plied under such the ordi- Process Clause of the Fourteenth Amend rationally legitimate gov- furthered a nance ment to the United States Constitution and safety goal protecting ernmental the of the I, article section of the Constitution of the city residents. State Delaware16 did invalidate the response argument to the that the ordi- authority impose court’s reasonable re infringed upon right nance a fundamental carry strictions on a license to a concealed guaranteed plaintiff by the the Illinois Con- deadly weapon. stitution,15 the court stated: Examination of section ... demon- C. right strates that individual’s to bear This court has had several occasions to subject arms in Illinois is narrow II, review article section and has never First, regulation. extensive the individu- right before determined that the to bear right expressly al’s to bear arms is “sub- arms is a fundamental Second, ject” “police power.” ... the litany jurisdic- seizes on the of cases our right only qualified right the to bear tion that have considered article unspecified some “arms” rather than a determining that “we have never found right any particular type to bear of fire- necessary to decide the status accorded arm.... the Since state constitutional [right Maj. op. to bear th[e] arms].” narrowly po- circumscribed the power, Chicago Contrary assertion, fact majority’s lice the that the ordi- to the we specifically nance as a whole affects the does not have never reached this conclu- review, right. Upon to a non-fundamental fend themselves and that the ordinance violates appropriate Supremacy Seventh Circuit addressed the stan- Clause of the federal Constitu- pleas dard of review of the ordinance's classification tion. The court of common ruled that the appeal, scheme and concluded that the ordinance with- ordinance was constitutional. On concluded, alia, appeals court of stands rational basis review. inter Similarly, Village in Kalodimos v. ordinance was a valid exercise of the state's Morton Grove, 308, 319, police power and that the ordinance did not 103 Ill.2d 83 Ill.Dec. (1984), right-to-bear-arms provision violate the Supreme N.E.2d Illinois, Court of supreme reviewing Ohio Constitution. The court conclud- constitutionality of a ed that the to bear arms is a village prohibiting possession right, but is operable handguns, not absolute therefore the ordi- engaged in a fundamental po- nance is to a reasonable exercise of rights analysis and determined that the rational power. lice appropriate scrutiny basis test is the level of where no fundamental is involved. The gives 15. Section 22 of the Illinois Constitution upheld constitutionality circuit court arms, Illinois citizens but the appropriate ordinance and therefore it was clearly right, stating constitution itself limits that supreme court to determine whether a funda that, only "[sjubject police powеr, to the implicated. mental was keep of the individual citizen to and bear arms Furthermore, Cleveland, in Arnold v. infringed.” shall not be Ohio St.3d 616 N.E.2d 163 the issue appeal constitutionality concerned the anof provision provides: person ordinance which banned and stile 16. This "A has the weapons. appellants challenged right self, keep of assault and bear arms for the defense of State, family, hunting the ordinance as an overbroad restriction on home and and for and right their constitutional arms and de- recreational use.” bear

345 13. overbroad and violated article section us was never the issue before sion since any legiti- that the statute was a court in of these cases. We determined presented to this Nakamura, 262, police power. Colo. People v. mate exercise of the state’s Id. In (1936),17 statute, said, progeny, 104, the cases and its P.2d at 391. The we P.2d 246 by subjecting the ordinances merely resolved were not conflict with the constitution did police power legitimate exercise of be- to a possession it limited the of because a right to bear arms is cause whether by persons likely possession. to abuse such of right was not at issue conclusion, reaching In this we noted: did not need to cases. We therefore these not read the Constitu- We do Colorado a fundamental nor did we reach whether right granting tion as an absolute to bear given procedural pos- at stake was limiting arms under all situations. It has ture of these cases. home, dealing language with defense of past, construing provision we In property. limitations person, and These right to bear arms is not found that the have recognized by the As- have been General Blue, absolute, People v. 190 Colo. sembly in of 18-12- the enactment (1975), analyzed have therefore P.2d 385 and which restricts the C.R.S. challenges under the rational constitutional circumstances, arms in certain to bear is, standard, regula- whether the basis permitting in other circumstances while exercise of the state’s tion is a reasonable carrying in de- a concealed police power. home, person, property, and fense of specifically also when authorized writ- Pillow, v. 180 Colo. In Lakewood permit. ten (1972), invalidated a local 501 P.2d 744 we use, prohibited possession, ordinance that P.2d at 391. Id. at carrying types of firearms outside of of all conflicting rights involved here are Although indicated that the one’s home. we rights individual’s to bear' arms and the “may regulation of firearms be constitutional- duty in- right, indeed its under its state’s subject municipal regulation ly to state or police power, herent to make reasonable police power,” we found that this under the purpose protecting regulations for the pre- which we read to prohibition, absolute health, safety, peo- welfare transporting weap- from vent an individual ... ple. home, gun too from a store to his was cannot, legislature in the ... state [T]he legitimate exercise of that broad to be a police power, enact laws which name of the P.2d at 745. did power. Id. at We nugatory Rights our Bill render whether the not need to determine protections. other constitutional arms is a fundamental because bear concluding Id. at 544 P.2d at 390-91. merely the ordinance declared trial legitimate exer- that the statute constituted finding based “on its invalid police power, again, we of the state’s cise is a matter of state- matter of the ordinance ruling by the trial were not confronted with preempted is therefore wide concern and implicat- court that a fundamental was pertaining carrying of a statute to the a state ed. 21-22, 501 P.2d at weapon.” Id. at concealed Ford, Further, People 193 Colo. (1977), Blue, was P.2d 26 the defendant People Colo. felons, defendants, charged proscribing an of- under statute convicted weapons by previous prohibiting possession fense

argued that a statute The defendant contended by previous offenders. offenders violated application to him was unconstitu- arms. statute’s We their keep it violated his trial court’s tional because the case based on the reviewed “home, per- in defense of his constitutionally and bear arms ruling that the statute was rights analysis engage since the prohibiting in a fundamental a statute unnatu- 17. We struck down unconstitu- keeping held that the statute was foreign-born from trial court ralized residents only. necessary bearing for us to tional arms. It was not property,” guaranteed by city hereby son and the The council finds and de- Constitution, Colorado article section 13. clares that the weapons po- use of assault We held: health, safety ses a threat to the and secu- Blue, rity of all recognized

In citizens of the and People v. we that the Further, right absolute; of Denver. to bear is not the council finds that arms the weapons capable assault right rap- Colorado Constitution limits that to both of a home, person, the defense of one’s id rate of fire as capacity and well as of a Thus, property. pursuant inordinately large statutes enacted fire an number of police power may validly to the state’s reloading rounds without designed and are regulate right possess restrict or primarily military antipersonnel for use. purpose possession arms where the of such city The council finds that law enforce- constitutionally protected one. agencies report ment increased use of as- (citation omitted). Id. 668 P.2d at 28 weapons sault for criminal activities. This Blue, merely In the trial court held has resulted in a record number of related right keep statute violated the defendant’s injuries homicides and to citizens and law holding and bear arms right without that the is, therefore, enforcement It officers. right. to bear arms is a fundamental city place intent of the council to reason- necessary able and Garcia, restrictions on the sale Finally, People v. 197 Colo. possession and weapons of assault while 595 P.2d 228 which involved a chal- placing no restrictions on the of citi- lenge prohibited to a posses- statute which zens to use primarily which are sion of a person, firearm an intoxicated designed hunting, and intended target we found that to bear arms could рractice legitimate regulated by sports and other the reasonable or re- exercise of police powers creational protection and that activities and the the rational relation- home, ship person property. test appropriate was the standard of review. The case was before us based on the 38-130(a). declaring trial court this statute to be uncon- Thus, city purpose council’s in enacting stitutionally vague and overbroad. In hold- protect Ordinance No. 669 is to the health ing that the statute “did not restrict safety citizens of Denver deter- right,” exercise of we im- manufacture, sale, ring plicitly recognize refused to a fundamental weapons, a class of that the to bear arms. Id. at 595 P.2d at city council presents has determined higher 230. danger public. view, risk of my to the In analyzing ordinance, the Denver I rec- ordinance is a reasonable exercise of the ognize of individuals to bear municipality’s police power protect arms under the Colorado Constitution is enti- citizens of stemming Denver from violence protection subject tled to constitutional from the use of weapons. government Keeping restrictions. the fore- majority correctly concludes that Den- going principles in mind from the above-cited ver Ordinance No. 669 is constitutional: it is cases, I conclude that Denver Ordinance No. rationally legitimate governmen- related to a 669 does not trammel a constitutional tal unreasonably interest and does not re- presume This court must therefore the stat- strict the exercise of the to bear arms. validity ute’s accordingly use the rational basis standard of review.18 I find the ordi- III. clearly

nance to be reasonable and would uphold it as a police valid exercise of the view, my appropriate analysis power. should have been an initial determination of legislative statement of intent con- whether the arms is funda- provides: tained applicable mental and the standard of Legislation (Colo.), denied, designed proteсt public's cert. 476 U.S. 106 S.Ct. safely (1986); presumption health and is entitled to a People Riley, 90 L.Ed.2d 981 Unruh, constitutionality. People (Colo.1985). P.2d relevancy any bearing or not have analytical framework tion does majority’s The review. feder- principles resolving issues before us. The established not follow modern does review. While Amendment is interpreting of constitutional the Second al law analyses, I in our constitutional wording and I differ of the Fed- helpful because the that the majority’s conclusion agree with materially from the Constitution differs eral manufacture, banning the Denver ordinance wording Constitution. the Colorado weapons is con- sale, or Therefore, rights fundamental federal law on Furthermore, I believe stitutional. Constitution does under the United States a fundamental arms is not interpretation of the in our not assist us II, rights afforded article nature of the 13 of the Colorado Constitution. dissenting: ERICKSON Justice view, analysis re- my appropriate In Robertson, Deatherage, Sharon Lawrence if a statute or a court to determine quires Jewell, Hecht, Scot- Jeffrey David d/b/a legitimate regulating firearms is Militaría, declaratory filed ties Guns and power or is police state’s exercise of the validity of judgment action to determine governmen- rationally to some other related at sec- codified No. Denver Ordinance reviewing or ordi- In a statute tal interest. Municipal the Denver Revised tion 38-130 of firearms, a court must de- (ordinance). regulating the attor- nance Subsequently, Code abrogates legal prohibits if it on behalf of State termine ney general intervened court, unduly infringes on an individ- activity deter- or if it The district Colorado.1 summary judgment, Accordingly, the mining cross-motions for to bear arms. ual’s analysis evidence and applying affidavits and other considered court erred trial unconstitutional on a to be relating held the ordinance to fundamen- upon federal law based of this grounds. As a result number of subjecting ordinance to rights and tal summary court entered ruling, the district scrutiny review. strict plaintiffs. Subse- judgment in favor of County ap- of Denver quently, the A pealed. validity of the appeal, the issuе On majority that Colorado agree I with the article sec- ordinance centers on whether People on this issue. law is determinative prohibits Constitution tion 13 of the Colorado Blue, 95, 103, 544 P.2d 390- 190 Colo. limi- imposing City Council from the Denver regulation of recognized that we manufacture, use, posses- tations on the conflicting rights firearms involves —the in the ordi- of the firearms described sion power police right pursuant to its state’s weapons. agree I with the nance as pur regulations for the impose reasonable may reg- Assembly majority that the General health, safety, and pose protecting the manufacture, possession, and use of ulate the citizens and the individual’s of its welfare adequate by proper and defini- firearms that right to bear arms. However, agree weapons. I tion are assault determining inquiry when appropriate City and attorney general that the

with the regulating firearms statute authori- if an ordinance or not have the of Denver does regulation is a identified as as- constitutional is whether ty regulate all firearms police regulation is a the state’s “legitimate” because the exercise of sault Garcia, I Accordingly, concern. 197 Colo. power. People matter of statewide See (1979). An respectfully dissent. act 595 P.2d power if it is reason ‍‌‌‌​​​​​​​​‌‌​‌​​‌‌​‌​​‌​‌​​​‌‌​‌​​‌​​‌‌‌‌‌​​​​​‍ police within the state’s I health, welfare, or safe public ably related to (Colo. Pharr, ty. People v. under the Second to bear arms 1984). Pharr, recognized that when we States Constitu- Amendment to the United plaintiff- plaintiffs tiffs." simplicity, and the 1. For “plain- collectively as are referred to intervenor rights suspect smiths, pawnbrokers classifications sporting goods involved,

are not a statute will withstand carrying stores from part on a substantial challenge if rationally Also, it is re- of their business. ap- the ordinance legitimate governmental lated to pears prohibit interest. individuals from trans- Thus, may place Id. porting guns the state reasonable places and from such granted by limits on the Furthermore, arms business. it makes it unlaw- the Colorado Constitution. person The trial court ful рossess for a a firearm in a should have determined if the ordinance is in place vehicle or a of business for the reasonably health, welfare, public related to purpose of self-defense. safety rationally

or or is related to some Id. at 501 P.2d at 745. We have stated legitimate governmental other interest. that Pillow prohibition “involved a broad unduly infringed [that] personal on the prior lib- provide guid- Our cases substantial Colo, erty Blue, bearing arms.” at determining ance in whether the in ordinance 104, 544 P.2d at 391. Blue a legitimate this addressed ease is a exercise of the state’s statute that possess, limited a police power. felon’s any reg- Blue establishes that use, carry or a firearm. In reviewing the preserve ulation of firearms must the consti- statute, we noted the statute was rights tutional constitu- afforded article section part tional in because it abrogate “does not 13 of the Colorado Constitution: legitimately ex-felon’s use self- sure, cannot, To legislature be the state in (em- defense.” Id. at 544 P.2d at 391 police power, the name of the enact laws added). phasis nugatory render our Bill Rights and other protections. These cases establish that in the context of regulating firearms, “legitimacy” spe- has a Colo, Blue, 544 P.2d at 391. meaning: cific regulation firearms is not a matter, As a threshold it is clear that the legitimate police power exercise of the state’s Assembly General does not power have the prohibits if it abrogates or legal activity or citizenry, to disarm the or a class of citizens unduly infringes on an individual’s Nakamura, People the State. 99 Colo. bear If arms. this legiti- narrow definition of 262, 265, (1936) (“The police P.2d macy recognized, is not regu- almost law power of a state cannot transcend the funda- lating justified firearms could be as a reason- law, mental and cannot be exercised such a able exercise of the police power state’s practical manner as to work abrogation a protecting public health, safety, and wel- provisions.”). Pillow, its In Lakewood v. fare. 20, 23, Colo. we municipal determined that a ordinanсe that B prohibited possession of a firearm outside of Historically, our Assembly a General residence was has unconstitutional. We ana- regulated possession of lyzed firearms that are de- questioning whether signed bodily to inflict prohibited injury it serious legal activity: or death in either warfare or in violation of the analysis An foregoing ordinance re- 18-12-102, criminal laws.2 Section 8B C.R.S. veals it general that is so scope its (1986 Supp.), & provides: prohibitions within includes its Possessing dangerous illegal weap- or carry on certain businesses and to en- on—affirmative defenses. gage in certain activities which cannot un- police powers (1) der reasonably classi- section, As used the term “dan- thus, subject fied as unlawful and gerous to crimi- weapon” silencer, means a firearm nal sanctions. an example, As gun, we note shotgun, machine short rifle, short or prohibit this ordinance gun- would ballistic knife. addition, Assembly passed 18-12-105.1, weapon, General has § concealed (1986); 8B C.R.S. legislation provides that: affirmative defenses to purchase allows a resident to a firearm charge carrying state, weapon, 12-27-102, (1991); a concealed § out of 5A C.R.S. 18-12-105, (1986); firearms, regulates 8B C.R.S. creates a mech- §§ the sale of 12-26-101 to -104, anism permit carry (1991). for a citizen to obtain a 5A C.R.S. inches”; (2) section, twenty-six shotgun” as As used in this the term and “short “ille-. blackjack, gas gun, weapon” shotgun having means a gal “a barrel or barrels less knife, knuckles, gravity or switch- metallic eighteen long inches or an overall than blade knife. length twenty-six less than inches.” person knowingly possesses A who view, my manufacture, possession, weapon 5 felo- dangerous commits a class by proper of firearms that use definition subsequent of this sub- ny. Each violation regulated also be under (3) by person shall be a same police power.3 the state’s The General As- felony. class sembly may regulate if knowingly possesses an person A who prohibit regulation abrogate legal does not 1 misde- illegal commits a class activity unduly infringe on an individual’s meanor. arms. to bear an defense to the It shall be affirmative weapon, charge possessing dangerous of a charge illegal possessing or to the of an Ill person a

weapon, that the so accused was presents notes: “This The ease peace officer or of the armed member banning questions of whether an ordinance forces to the Unites or Colorado States manufacture, sale, acting discharge possession the or of ‘as- guard nation in the lawful a duties, 'person or said has weapons’ City County of that of his sault within the and permit possession and valid license article Denver violates section 13 of for weapon. such Maj. op. at 3. Colorado Constitution....” Encompassed this the issue whether added.) 18-12-101, (Emphasis 8B Section County authority City and of has the Denver (1986), gun” as C.R.S. defines: “machine regulate Although firearms.4 the General firearm, usual “any whatever its size and Assembly power regulate has the assault automatically more designation, that shoots every city weapons, shot, hamlet and home-rule by reloading, than one without manual gov- power. does not have the same Local rifle” single trigger”; a function of the “short separate not ernments should have a having “a rifle a less than sixteen as barrel .definition, legislative penalty, and long length or an of less than different inches overall capacity Assembly specifically magazine of General ad- with a detachable with a 3. The has weapons." the issue of In the twenty dressed "assault or more rounds of ammunition. session, Assembly the refused to 1989 General legislation criminalizing possession the of enact Although preemption the of is raised in issue weapons by law-abiding persons. Hear- assault by plaintiffs’ answer addressed the brief and was Judiciary ings on S.B. 248 Before the Senate granting its the district court in order the motion Committee, Assembly, Reg.Sess. 57th 1st Gen. summaiy judgment, plaintiffs did not file for 26, (audio 1989, 2:39-3:44). tape, April view, cross-appeal. my In should be the issue Assembly has assault General addressed discretionary authority We have un addressed. (1993 16-11-309(8), enacting § by 8A C.R.S. 1(d) properly not der C.A.R. notice errors Supp.), provides: raised, preserved especially they when are of (a) any case the accused is In in which importance. Moses v. Diocese See charged with a as defined crime of violence Colorado, (Colo. 1993) P.2d 863 319 n. 10 of and the this section indictment or information (reviewing properly First issue not Amendment specifies "dangerous weapon” the use of Zwicker, court); preserved in the trial Schuster v. 18-12-102, defined in 18-12-101 (Colo. 1983) (recognizing dis 659 P.2d 690 C.R.S., or the use of a semiautomatic authority cretionary to correct a fundamental (b) paragraph as defined of Cronin, error); 535 n. Patterson 650 P.2d (8), upon of said crime subsection conviction (Colo. 1982) (noting was not that the court violence, judge impose an addition- of shall argu addressing process precluded from a due weap- years of five use of such al sentence although was on the court ment it not ruled years be in on. The sentence of five shall pleadings); it was mandatory imposed below because raised in addition to sentence 113, 116, People, 173 476 P.2d for the substantive and shall be served Colo. offense Robinson consecutively any and shall (addressing question other sentence raised subject suspension probation. not be trial court issue was of consti in the because the (b) purposes of “sem- For this subsection proportions). tutional weapon” any means sem- iautomatic equipped center iautomatic fire firearm that manufacture, use, proscription against this an area is desirable to have a where weapons. single, regula- of so-called assault all-encompassing scheme of view, my tion, regulation just local firearms is an so that local laws—not local laws infringement state’s, undue local conflict with but Constitution unduly arms under the Colorado and is complicate pic- laws—would preempted ture?”); state law. Rhyne, Local Charles S. The Law of § Operations (recognizing Government 19.11 City County of Denver is a home- necessity preemption rooted in city article XX of rule created under uniformity of regulation). statewide such, Constitution. As Denver Colorado only granted by powers those exercise The determination whether a matter is XX of constitution. Article the Colora- state of statewide concern is not to strict grants do home-rule cites “the Constitution instead, legal standard; such we have made self-government in both full local and basis, taking determinations on ad hoc Const, XX, municipal matters.” Colo. art. into account facts of each Denver case. 6; City County see also & Denver v. & Rio R.R. Grande Western Co. v. & Dist, Colorado River Water Conservation (Colo. Denver, County 673 P.2d (Colo.1985); Four-County P.2d 1983). State, City County & Denver v. Capital Improvement Metro. Dist. v. Board (Colo.1990), we stated: Comm’rs, Colo. of Although we have found it useful to em- 67, (1962). 72 P.2d “local,” “mixed,” ploy the and “state-wide” concern, If a matter is of statewide a categories resolving conflicts between municipality precluded home-rule is from act- legislation, legal local and cate- state these State, ing. City County & Denver v. 788 of gories mutually should not be mistaken for 764, (Colo.1990); P.2d 767 see also Colorado factually prefect description exclusive or of Dist., (“In 696 at 740 River P.2d matters of the relevant interests of the local state and concern, purely and in statewide the absence governments. Those affairs which are mu- grant city specific power by of to the a of nicipal, of mixed or statewide of- concern statutes, constitution or state the General imperceptibly merge. ten Assembly legislation, adopt is free to and the all.”). city power is without act at The best determinate of what to is a statewide prior concern is our decisions. prohibition The basis of the on local action affecting in matters the entire state is that regulation solely We have held uniformity regulation advantageous: of range matter of concern in statewide a broad inquiry implicit concept The central of City factual circumstances. See Colora of pre-emption of there is whether should be Comm’n, Springs do v. Industrial P.2d 749 uniformity regulation statewide in the of (Colo.1988) 412 (unemployment compensa specific conduct. If is no there need for tion); Century Repair, Elec. Serv. & Inc. v. uniformity, no statewide there is need for Stone, 181, (1977) 193 564 Colo. P.2d 953 power law preempt regu- state local (licensure electricians); City County of & of .... late This is of the preemp- the core Comm’n, Denver v. Public Colo. Utilities 181 consider, question on tion the one (1973) 38, (rates —to 507 privately P.2d 871 of hand, uniformity the need for statewide of public owned utilities a municipality); inside regulation specific type conduct, of a of City Thomas, County & Denver v. 176 of and, hand, on the other the need of local 483, (1971) (workmen’s Colo. 491 P.2d 573 governments local, respond to be able compensation); Public v. Utilities Comm’n statewide, distinguished problems. from (1970) Durango, 553, 171 Colo. 469 P.2d 131 (rates Netsch, Daniel R. Dawn municipally-owned public utility Mandelker & C. of out municipality); Kelly City State Local in a side Government Federal v. Col Fort of lins, (li (1977); (1967) System 520, 237 also see Osborne M. 163 431 Colo. P.2d 785 (1982) Sweet, Reynolds, quor regulation); Local Government Law 120 Denver v. Colo. 138 41, (1958) (income (stating inquiry tax); City that-the critical the con- 329 P.2d 441 of Merris, preemption state City 169, text of of local law is: Canon “[I]s v. 137 Colo. 323

351 influence); (1958) conflicting (driving ordinances will be created that P.2d under the 614 Denver, uniformity Ray County 109 Colo. no and will invite further City & have v. of (1942) small (regulation litigation scope on the 121 P.2d 886 definitions, loans); Markey, pro- 122 P. 52 Colo. The variation in the Hilts arms. officers). (1912) county penalties possession, (powers scriptions, for the use, or manufacture of subject for regulation of firearms is infringement would be undue local, state, regulation. Doe v. not See rights citizens Colorado there- Francisco, Cal.App.3d & San be an exercise fore would unreasonable (1982) (holding Cal.Rptr. police power. the state’s require ‍‌‌‌​​​​​​​​‌‌​‌​​‌‌​‌​​‌​‌​​​‌‌​‌​​‌​​‌‌‌‌‌​​​​​‍law that where state does firearm, preempts permit the state law requiring registration of ex-

local ordinance IV prohibiting hand- isting handguns new agree majority I with Farrell, guns); Dwyer v. 193 Conn. II, 13 of arms under article section bear (1984) (holding that the local A.2d regula- Constitution is Colorado because, preempted “by plac- ordinance was Although general I agree tion. with the ing handguns, restriction on the sale of these by majority, analysis applied effectively prohibits what if regulating concludes an ordinance Montgomery clearly permit”); state statues governed by a reasonable firearms is state Guns, Md. County v. Atlantic interest, the ordinance is constitutional. 1114,1114 (holding that state law A.2d (cid:127) overly This standard is broad and should be that restricted preempted a local ordinance preserve rights limited to the constitutional sales); Township ammunition Duff in article 13 of the set forth Colo- Northampton, 110 532 A.2d Pa.Cmwlth. validity of a rado Constitution. The firearms (holding that a state law regulation legitimate as a exercise of the preempted an permitting discharge firearm police power is determined wheth- state’s restricting discharge), ajfd, 520 ordinance regulation prohibits abrogates legal or er (1988); City Pa. 550 A.2d 1319 Schneck unduly activity, infringes on an individual’s Philadelphia, 34 383 A.2d Pa.Cmwlth. view, my arms. right to bear In trial (deciding re- 229-30 applying law to court erred federal con- permit purchase quiring police firearm was at clude that issue because law did not preempted was state required scrutiny review. In- strict Cherry require permit); Municipality stead, applied the trial court should have Seattle, P.2d 116 Wash.2d Metro. prior from our that are derived standards legisla- (recognizing that state cases. preempt city, town and ture intended agree Although I with the laws). county firearms authority regulate has the fire- the state municipal regu- patchwork conflicting A adequate proper and definition arms that will not serve the interests lations weapons, are state, attempts regulate fire- and local power. my not Denver does have arms, by article my opinion, prohibited II, view, ordinance violates article section 13 of the Colorado Constitution. XX Constitu- and article of the Colorado hunt, tar- firearms who Owners of desire ruling I Therefore affirm the tion. would shoot, get pursue other lawful recreational finding ordinance unconsti- the trial court parts activity in of the state could different Accordingly I dissent. tutional. range penal- criminal to a wide cities or if the defini- ties in different towns uniform and

tion of an assault is not

subject to clear definition. view, preemption applied, if my city every permit- home-rule or town regulate weapons,

ted a network

Case Details

Case Name: Robertson v. City and County of Denver

Court Name: Supreme Court of Colorado

Date Published: May 2, 1994

Citation: 874 P.2d 325

Docket Number: 93SA91

Court Abbreviation: Colo.