SECOND AMENDMENT FOUNDATION, ET AL, Appellants, v. THE CITY OF RENTON, Respondent.
No. 11283-0-I
Division One
August 22, 1983
Reconsideration denied September 20, 1983.
35 Wn. App. 583
The “technicality” the prosecutor referred to during argument and which Mathe assigns error to was in reply to the defense‘s argument that without the gun in court, the jury could never find beyond a reasonable doubt that Mathe used a deadly weapon and firearm in fact. Any improper comment on the part of the prosecutor was harmless beyond a reasonable doubt.
The judgment is affirmed.
ANDERSEN, C.J., and WILLIAMS, J., concur.
Reconsideration denied September 20, 1983.
Review granted by Supreme Court December 2, 1983.
Richard B. Sanders, for appellants.
Lawrence J. Warren, City Attorney, for respondent.
The City of Renton enacted municipal ordinance 3459 which provides, in pertinent part:
It is unlawful for anyone, on or in any premise in the City of Renton where alcoholic beverages are dispensed by the drink, to:
A. Carry any rifle, shotgun or pistol, whether said person has a license or permit to carry said firearm or not, and whether said firearm is concealed or not.1
The appellant foundation is a nonprofit corporation organized to promote greater awareness of the constitutional right to bear arms. The four individual appellants, all licensed handgun owners, are residents of King County and/or the City of Renton. They brought this action against the City of Renton seeking declaratory and injunctive relief, alleging that the ordinance was unconstitutional and preempted by state law. The trial court granted the City‘s motion for summary judgment. The Supreme Court denied the petition for direct review and transferred the case to this court. Two issues are presented on appeal.
1. Does ordinance 3459 violate the right to bear arms secured by the Washington Constitution, article 1, section 24?
2. Is ordinance 3459 preempted by state law governing the issuance of licenses to carry concealed pistols, as provided for in
The Washington constitutional provision concerning a citizen‘s right to carry arms in self-defense is unambiguous.
Right to bear arms. The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.
A constitutional guaranty of certain rights to the individual citizen does not place such rights entirely beyond the police power of the state. State v. Gohl, supra at 410.
Regulations enacted by a municipality in the exercise of its police powers must meet the judicial test of reasonableness. This test requires that the regulation be reasonably necessary to protect the public safety, health, morals and general welfare and be substantially related to the legitimate ends sought. Homes Unlimited, Inc. v. Seattle, 90 Wn.2d 154, 158, 579 P.2d 1331 (1978); Seattle v. Pullman, 82 Wn.2d 794, 799, 514 P.2d 1059 (1973).
The scope of permissible regulation must depend upon a balancing of the public benefit to be derived from the regulation against the degree to which it frustrates the purpose of the constitutional provision. The right to own and bear arms is only minimally reduced by limiting their possession in bars. The benefit to public safety by reducing the possibility of armed conflict while under the influence of alcohol outweighs the general right to bear arms in defense of self and state. The Renton ordinance is narrowly drawn and demonstrates legislative concern for reasonable exercise of the police power where liquor by the drink is dispensed. By specific exception, the ordinance does not apply to:
- Any lawful act committed by a person while in his fixed place of business.
- Any person who by virtue of his office or public employment is vested by law with a duty to preserve public safety, maintain public order, or to make arrests for offenses, whether during regular duty hours or not.
- Any person making or assisting in making a lawful arrest for the commission of a felony.
- Any area primarily designated for the service of prepared foods and commonly referred to as a restaurant, whether alcoholic beverages are served or not.
On balance, the public‘s right to a limited and reasonable exercise of police power must prevail against the individual‘s right to bear arms in public places where liquor is served. It should be noted that while 36 states have constitutional provisions concerning the right to bear arms, in none is the right deemed absolute. Note, The Impact of State Constitutional Right To Bear Arms Provisions on State Gun Control Legislation, 38 U. Chi. L. Rev. 185, 187 (1970). Those states with constitutional provisions similar to ours have uniformly held the right subject to reasonable exercise of the police power. See Hyde v. Birmingham, 392 So. 2d 1226, 1227 (Ala. Crim. App. 1980), cert. denied, 392 So. 2d 1229 (Ala. 1981); People v. McFadden, 31 Mich. App. 512, 188 N.W.2d 141, 144 (1971); Carfield v. State, 649 P.2d 865, 871-72 (Wyo. 1982); State v. Rascon, 110 Ariz. 338, 519 P.2d 37, 38 (1979); State v. Robinson, 217 Or. 612, 343 P.2d 886, 889 (1959); Matthews v. State, 237 Ind. 677, 148 N.E.2d 334, 338 (1958). The ordinance is constitutionally valid.
We next address whether the ordinance is preempted by state law. Municipalities have broad powers to enact police regulations.
Relying on Laws of 1961, ch. 124, § 14,2 appellants argue that the Legislature has clearly expressed such an intention. This provision served only to repeal inconsistent municipal legislation in effect in 1961, and has no bearing on the present case.
The Uniform Firearms Act,
The other test of preemption is whether the ordinance permits or licenses that which the statute forbids, or the statute permits or licenses that which the ordinance forbids. Bellingham v. Schampera, supra at 111. Our statutes do not expressly state an unqualified right to be in posses-
While an absolute and unqualified local prohibition against possession of a pistol by the holder of a state permit would conflict with state law, an ordinance which is a limited prohibition reasonably related to particular places and necessary to protect the public safety, health, morals and general welfare is not preempted by state statute.
Municipal ordinances enacted in the exercise of the municipality‘s police power are presumed to be valid enactments. Homes Unlimited, Inc. v. Seattle, supra; Seattle v. Wright, 72 Wn.2d 556, 559, 433 P.2d 906 (1967). The appellants have failed to overcome this presumption.
Affirmed.
RINGOLD, J., concurs.
ANDERSEN, C.J. (concurring)—I concur, but would just add the following observation. There is nothing in the language of our state constitution or in the history of the right to “bear arms“, as protected by the federal and various state constitutions, which lends any credence whatsoever to the claim that there is a constitutional right to carry a firearm into a drinking establishment. See, e.g., United States v. Miller, 307 U.S. 174, 83 L. Ed. 1206, 59 S. Ct. 816 (1939); State v. Tully, 198 Wash. 605, 89 P.2d 517 (1939); Ex parte Thomas, 1 Okla. Crim. 210, 97 P. 260 (1908).