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Robertson v. City and County of Denver5/2/1994
owledging these established concepts of constitutional review, I am not convinced that we need not determine whether the right to bear arms is or is not a fundamental right.
A.
I am guided by the constitutional review this court and other appellate courts have applied in evaluating a trial court's decision whether a fundamental right is implicated in a particular situation.
For example, in Bowers v. Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140, 106 S. Ct. 2841 (1986), a majority of the Supreme Court engaged in a fundamental rights analysis by directly addressing whether the Constitution confers a fundamental right upon homosexuals to indulge in sodomy. Id. at 190. In upholding Georgia's statute criminalizing sodomy, the majority concluded that there is no such fundamental right under the Constitution. Id. at 191.
In Evans v. Romer, 854 P.2d 1270 (Colo.), cert. denied, 126 L. Ed. 2d 365, U.S. , 114 S. Ct. 419 (1993), we addressed whether the trial court correctly determined, in granting a preliminary injunction, that Amendment 2 "may burden fundamental rights of an identifiable group." Because the trial court identified a fundamental right, it applied a strict scrutiny standard of review and found that the plaintiffs had demonstrated that Amendment 2 is unconstitutional. In reviewing whether Amendment 2 infringed on a fundamental right, we engaged in a constitutional standard of review analysis and ultimately concluded that the right to participate equally in the political process is a fundamental right which is subject to strict judicial scrutiny.
Further, in Mayo v. National Farmers Union, 833 P.2d 54 (Colo. 1992), we reviewed a statute authorizing household exclusion clauses in automobile policies. The district court rejected the insureds' contention that the classification created by the statute unconstitutionally impaired their fundamental right to travel. We directly addressed the question whether a fundamental right is implicated by the statutory provision. We found that neither the statute nor the household exclusion clause infringed on the fundamental right to travel of insureds whose policy contained such an exclusion. We therefore concluded that the statute passed muster under the rational basis test. We performed this judicial standard of review based on the district court's determination that the statute survived an equal protection challenge.
The approach adopted by the majority is appealing in its simplicity but does not follow the analytical constitutional framework we have previously applied. In the present case, the trial court's ruling to hold the ordinance unconstitutional was based upon a finding that a fundamental right to bear arms existed. The trial court found that the Denver ordinance banning the manufacture, sale, or possession of assault weapons did not withstand strict scrutiny review. On appeal, the plaintiffs argue that this ordinance deprives them of the fundamental right to bear arms and the defendants argue that the trial court erred in concluding that the right to bear arms in the defense of home, person, and property is a fundamental right. Indeed, one of the questions presented for our review, as conceded in the main opinion in footnote 5, is whether the right to bear arms is a fundamental right. Guided by the foregoing principles and given the procedural posture of this case, I believe that this case requires a determination of whether the right to bear arms is a fundamental right.
B.
The question of whether there is a fundamental right to bear arms is not novel and has already been decided by several states. Recent state jurisprudence ind
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