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Robertson v. City and County of Denver5/2/1994
the country of origin or any firearm which has been manufactured or sold by another company under a licensing agreement to manufacture or sell the identical or nearly identical firearms as those listed in subdivision (1), (2), (3) or those described in subdivision (4) regardless of the company of production or distribution or the country of origin.
(i) Specific magazine prohibited. It shall be unlawful to carry, store or otherwise possess a magazine which will hold or may be modified to hold twenty-one (21) or more rounds.
(j) Penalty. Any person, firm or corporation who is convicted of violating any provision of this section shall be punished by a fine of not less than one hundred ($100.00) or more than nine hundred ninety-nine dollars ($999.00) and a term of incarceration of not less than ten (10) days nor more than one hundred eighty (180) days.
(k) Violation; Disposition. Upon a conviction of violating any provision of this section, the weapon shall be confiscated and destroyed under section 38-120, Disposition of confiscated weapons.
(Ord. No. 669-89, § 1, 11-6-89; Ord. No. 719-89, § 1, 11-27-89)
Disposition
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED
JUSTICE VOLLACK Concurring in the result:
I concur in the result reached by the majority that Denver Ordinance No. 669 is constitutional. I disagree, however, with the majority's determination that this case does not require us to decide whether the right to bear arms is a fundamental right. I therefore write separately to emphasize my belief that we are required by the specific issue raised here, that is, whether the right to bear arms is a fundamental right, by the procedural posture of this case, by the relevant case law, and by the fundamental principles of judicial review, to evaluate the ordinance's constitutionality in conformity with established constitutional standards of review.
The legal premise underlying the majority opinion is that our prior decisions where we have considered article II, section 13, reveal that,
when confronted with a challenge to the validity of a statute or ordinance regulating the exercise of the right to bear arms guaranteed under article II, section 13 of the Colorado Constitution, a reviewing court need not determine the status of that right. Rather, the question in each case is whether the law at issue constitutes a reasonable exercise of the state's police power.
Maj. op. at 10. The majority therefore concludes that the trial court erred in reaching the question of the status to be accorded the right to bear arms. I disagree.
In light of modern established principles defining fundamental constitutional rights, the right to bear arms under article II, section 13, of the Colorado Constitution is not a right which, in my opinion, has been recognized as having a value essential to individual liberties in our society. I would therefore hold that the right to bear arms is not a fundamental right.
I.
At issue in this case is the scope of article II, section 13, of the Colorado Constitution, which provides that "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."
The scope of the right of individuals to bear arms under the Colorado Constitution must be analyz
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