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Robertson v. City and County of Denver5/2/1994
This case presents questions of whether an ordinance banning the manufacture, sale, or possession of "assault weapons" within the City and County of Denver violates article II, section 13 of the Colorado Constitution, and the constitutional proscription against laws that are impermissibly vague or overbroad.
I
In October 1989, the Denver City Council (City Council) enacted Ordinance No. 669 which became effective on November 14, 1989, and was codified as section 38-130 of the Denver Revised Municipal Code. See Appendix, Denver, Colo., Rev. Mun. Code art. IV, § 38-130 (1989) (the ordinance).
The individual plaintiffs challenged the constitutionality of the ordinance on numerous grounds. The attorney general intervened as a plaintiff-intervenor on behalf of the State of Colorado. Subsequently, the trial court held a hearing to consider the plaintiffs' and defendants' motions for summary judgment.
The trial court granted plaintiffs' motion. It concluded that article II, section 13 of the Colorado Constitution guarantees the people of Colorado the fundamental right to bear arms. It found that defendants had established a compelling governmental interest in regulating assault weapons, but that this interest was served only by banning those weapons capable of both a rapid rate of fire and having the capacity to fire an inordinately large number of rounds without reloading. Thus, the court gave the ordinance a limiting construction so that it would serve the compelling interest defined by the court. The court additionally determined that certain provisions of the ordinance were vague or overbroad, and that those provisions were not severable from those which passed constitutional muster. Thus, the trial court invalidated the entire ordinance.
Defendants appealed to this court pursuant to section 13-4-102(1)(b), 6A C.R.S. (1992 Supp.). We affirm in part, reverse in part, and remand the case for further proceedings.
II
The right to bear arms is guaranteed under article II, section 13 of the Colorado Constitution. That section provides:
The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.
Defendants argue that the trial court erred in concluding that this provision establishes a fundamental right to bear arms in self-defense. See Bowers v. Hardwick, 478 U.S. 186, 191-92, 92 L. Ed. 2d 140, 106 S. Ct. 2841 (1986) (identifying fundamental constitutional rights as those "implicit in the concept of ordered liberty" or "deeply rooted in this Nation's history or tradition"). Conversely, plaintiffs argue that the trial court correctly reached this Conclusion.
While it is clear that this right is an important constitutional right, it is equally clear that this case does not require us to determine whether that right is fundamental. On several occasions, we have considered article II, section 13, yet we have never found it necessary to decide the status accorded that right. Rather, we have consistently concluded that the state may regulate the exercise of that right under its inherent police power so long as the exercise of that power is reasonable.
The earliest decision of this court applying article II, section 13, is People v. Nakamura, 99 Colo. 262, 62 P.2d 246 (1936). I
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