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Robertson v. City and County of Denver5/2/1994
icates that statutory classifications affecting firearms have not been held to infringe a fundamental right. Rather, courts have opined that the legislature may impose reasonable regulations over the constitutional right to bear arms in order to promote safety and welfare. An examination of the way other states have construed their constitutional right to bear arms statutes further supports my belief that no fundamental right to possess an assault weapon exists.
In Quilici v. Village of Morton Grove, 695 F.2d 261, 268 (7th Cir. 1982), cert. denied, 464 U.S. 863, 78 L. Ed. 2d 170, 104 S. Ct. 194 (1983), the Court of Appeals for the Seventh Circuit determined that the Village of Morton Grove's gun control ordinance, which prohibited the possession of handguns within the village's border but did not prohibit the possession of all firearms, did not infringe on a constitutionally protected right. The court of appeals determined that the ordinance was properly directed at protecting the safety and health of Morton Grove citizens, was a valid exercise of Morton Grove's police power, and did not violate any of the appellant's rights guaranteed by the Illinois Constitution.
In State v. Brown, 571 A.2d 816 (Me. 1990), the defendant, a convicted felon, challenged the Maine statute that forbade him to possess firearms on the ground that it violated his state constitutional right to bear arms. The court determined that the state constitutional right to keep and bear arms is not an absolute right and the possession-by-a-felon statute does not exceed the permissible bounds of reasonable regulation under the state's constitutional police power.
Furthermore, in the Application of Atkinson, 291 N.W.2d 396 (Minn. 1980), the plaintiff, seeking to carry a loaded gun in his car while traveling on the public highways was denied issuance of a handgun permit. The Supreme Court of Minnesota determined that the state may reasonably exercise its police power to regulate the carrying of loaded weapons by individuals in the interest of public safety. The court further concluded that no absolute common-law constitutional right to carry weapons for individual self-defense exists.
In People v. Kuri, 132 Misc. 2d 1036, 506 N.Y.S.2d 245 (N.Y. City Crim. Ct. 1986), the court held that a provision of the New York penal law requiring that a person with a valid statewide pistol permit obtain a special permit to carry or possess a weapon within the city of New York is rationally related to the legislative goal of ensuring order in a densely populated high-crime area. In this case, the People asserted and the court agreed that the privilege of carrying a gun does not rise to the level of a fundamental right.
In Fresno Rifle and Pistol Club, Inc. v. Van de Kamp, 746 F. Supp. 1415 (E.D. Cal. 1990), a case factually similar to ours, an action was brought challenging the validity of a California statute regulating the manufacture and transfer of assault weapons. The district court held that the statute violated neither rights conferred by the Second Amendment of the United States Constitution nor privacy rights guaranteed by the federal and California Constitutions.
Several courts have upheld firearms statutes against an equal protection challenge by applying a rational basis test since no fundamental right was affected. In Sklar v. Byrne, 727 F.2d 633 (7th Cir. 1984), the plaintiff brought a 42 U.S.C. § 1983 action challenging the constitutionality of a city firearms ordinance which prohibited the registration of handguns after a specified date. The court of appeals held that the handgun ordinance did not affect a fundamental right or suspect classification. Although the case was decid
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