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Robertson v. City and County of Denver5/2/1994
ed based on a federal equal protection analysis, the Seventh Circuit determined that a rational basis standard of review applied and, under such standard, the ordinance rationally furthered a legitimate governmental goal of protecting the safety of the city residents.
In response to the argument that the ordinance infringed upon a fundamental right guaranteed the plaintiff by the Illinois Constitution, the court stated:
Examination of section 22 . . . demonstrates that an individual's right to bear arms in Illinois is narrow and subject to extensive regulation. First, the individual's right to bear arms is expressly "subject" to the "police power." . . . Second, the right is only a qualified right to bear some unspecified "arms" rather than a right to bear any particular type of firearm. . . . Since the state constitutional right is narrowly circumscribed by the police power, the fact that the Chicago ordinance as a whole affects the right does not trigger compelling state interest analysis of the ordinance.
Id. at 637.
Similarly, In re application of Wolstenholme, 1992 WL 207245 (Del. Super. 1992), the court determined that a fundamental right to bear arms did not exist and a restriction or condition on a license to carry a concealed deadly weapon may be imposed without violating the applicant's right to substantive due process. The court concluded that the Due Process Clause of the Fourteenth Amendment to the United States Constitution and article I, section 7, of the Constitution of the State of Delaware did not invalidate the court's authority to impose reasonable restrictions on a license to carry a concealed deadly weapon.
C.
This court has had several occasions to review article II, section 13, and has never before determined that the right to bear arms is a fundamental right. The majority seizes on the litany of cases in our jurisdiction that have considered article II, section 13, in determining that "we have never found it necessary to decide the status accorded the [right to bear arms]." Maj. op. at 7.
Contrary to the majority's assertion, we have specifically never reached this Conclusion since the issue before us was never presented to this court in any of these cases. In People v. Nakamura, 99 Colo. 262, 62 P.2d 246 (1936), and its progeny, the cases were resolved by subjecting the ordinances to a legitimate exercise of police power because whether the right to bear arms is a fundamental right was not at issue in any of these cases. We therefore did not need to nor did we reach whether a fundamental right was at stake given the procedural posture of these cases.
In construing this provision in the past, we have found that the right to bear arms is not absolute, People v. Blue, 190 Colo. 95, 544 P.2d 385 (Colo. 1975), and have therefore analyzed constitutional challenges under the rational basis standard, that is, whether the regulation is a reasonable exercise of the state's police power.
In City of Lakewood v. Pillow, 180 Colo. 20, 501 P.2d 744 (Colo. 1972), we invalidated a local ordinance that prohibited the possession, use, or carrying of all types of firearms outside of one's home. Although we indicated that the regulation of firearms "may be constitutionally subject to state or municipal regulation under the police power," we found that this absolute prohibition, which we read to prevent an individual from transporting a weapon from a gun store to his home, was too broad to be a legitimate exercise of that power. Id. at 23, 501 P.2d at 745.
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