 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Robertson v. City and County of Denver5/2/1994
ed in conformity with modern established principles of constitutional review. When the constitutionality of an ordinance is challenged, the court must determine the appropriate standard of review in order to evaluate the constitutionality of the ordinance. Zavala v. City and County of Denver, 759 P.2d 664 (Colo. 1988). The first step in this analysis is to determine the nature of the right, that is, whether a fundamental right is involved. In United States v. Carolene Products, 304 U.S. 144, 152 n.4, 82 L. Ed. 1234, 58 S. Ct. 778 (1938), the Supreme Court distinguished two kinds of rights--fundamental and nonfundamental. Courts vary the level of scrutiny applied depending on the right involved. In Colorado, we have recognized three standards of review: the strict scrutiny test, the intermediate scrutiny test, or the rational basis test.
The United States Supreme Court has given added protection to rights considered fundamental. A fundamental right is a right that has been recognized as having a value essential to individual liberties in our society. Lujan v. Colorado State Bd. of Educ., 649 P.2d 1005, 1015 n.7 (Colo. 1982); see also John E. Nowak et al., Constitutional Law ch. 13, § 4, at 465 (3d ed. 1986). Black's Law Dictionary 674 (6th ed. 1990) defines "fundamental right" as "those rights which have their source, and are explicitly or implicitly guaranteed, in the federal Constitution . . . and state constitutions."
Strict scrutiny is applied whenever a legislative enactment contains a suspect classification or limits a fundamental right. Id. at 1015. Thus, a court will uphold a law that restricts fundamental rights under the strict scrutiny test only if the law is necessary to promote a compelling or overriding governmental interest and the law is narrowly tailored to meet that interest.
The United States Supreme Court has found only a limited group of fundamental rights and has been reluctant to expand the list of fundamental constitutional rights. See Evans v. Romer, 854 P.2d 1270, 1291 (Colo.) (Erickson, J., Dissenting), cert. denied, 126 L. Ed. 2d 365, U.S. , 114 S. Ct. 419 (1993). For example, the United States Supreme Court has held that the right to marry, to vote, and the right to interstate travel are fundamental rights. In contrast, the Supreme Court has refused to recognize a fundamental right to education, housing, welfare payments, or government employment. Id. Where a fundamental right is not involved, a legislative enactment is tested under the rational basis test which requires the government to show that the ordinance is rationally related to a legitimate state interest. Lujan, 649 P.2d at 1016.
The majority acknowledges that the right to bear arms is an important constitutional right but nevertheless believes that this case does not require us to determine whether that right is fundamental. Maj. op. at 6-7. Despite well-established principles of law on the interpretation of constitutional guarantees, the majority does not address the nature of the right involved and the level of scrutiny applied. Rather, the majority avoids a constitutional review of the trial court's ruling, that the right to bear arms is a fundamental right subject to strict scrutiny, and instead disposes of this issue by determining that the ordinance constituted a legitimate exercise of the state's police power.
The majority has applied, in my opinion, an unprecedented legal standard, an exercise of police power, which, to my knowledge, has never been deemed an independent standard and which contravenes basic constitutional principles of the three standards of review. Further, ackn
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Colorado DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|