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Robertson v. City and County of Denver5/2/1994
ble exercise of police powers and that the rational relationship test was the appropriate standard of review. The case was before us based on the trial court declaring this statute to be unconstitutionally vague and overbroad. In holding that the statute "did not restrict the exercise of any fundamental right," we implicitly refused to recognize a fundamental right to bear arms. Id. at 553, 595 P.2d at 230.
In analyzing the Denver ordinance, I recognize that the right of individuals to bear arms under the Colorado Constitution is entitled to constitutional protection subject to government restrictions. Keeping the foregoing principles in mind from the above-cited cases, I conclude that Denver Ordinance No. 669 does not trammel a constitutional right. This court must therefore presume the statute's validity and accordingly use the rational basis standard of review. I find the ordinance to be clearly reasonable and would uphold it as a valid exercise of the police power.
The statement of legislative intent contained in the ordinance provides:
The city council hereby finds and declares that the use of assault weapons poses a threat to the health, safety and security of all citizens of the City and County of Denver. Further, the council finds that assault weapons are capable both of a rapid rate of fire as well as of a capacity to fire an inordinately large number of rounds without reloading and are designed primarily for military or antipersonnel use.
The city council finds that law enforcement agencies report increased use of assault weapons for criminal activities. This has resulted in a record number of related homicides and injuries to citizens and law enforcement officers. It is, therefore, the intent of the city council to place reasonable and necessary restrictions on the sale and possession of assault weapons while placing no restrictions on the right of citizens to use weapons which are primarily designed and intended for hunting, target practice and other legitimate sports or recreational activities and the protection of home, person and property.
§ 38-130(a).
Thus, the city council's purpose in enacting Ordinance No. 669 is to protect the health and safety of the citizens of Denver by deterring the manufacture, sale, and possession of assault weapons, a class of weapons that the city council has determined presents a higher risk of danger to the public. In my view, the ordinance is a reasonable exercise of the municipality's police power to protect the citizens of Denver from violence stemming from the use of assault weapons.
The majority correctly concludes that Denver Ordinance No. 669 is constitutional: it is rationally related to a legitimate governmental interest and does not unreasonably restrict the exercise of the right to bear arms.
III.
In my view, the appropriate analysis should have been an initial determination of whether the right to bear arms is a fundamental right and the applicable standard of review. The majority's analytical framework does not follow modern established principles of constitutional review. While the majority and I differ in our constitutional analyses, I agree with the majority's Conclusion that the Denver ordinance banning the manufacture, sale, or possession of assault weapons is constitutional. Furthermore, I believe that the right to bear arms is not a fundamental right.
JUSTICE ERICKSON Dissenting:
Lawrence Robertson, Sharon Deatherage, Jeffrey Hecht, and David Jewell, d/b/a Scotties Guns and Militaria, filed a declaratory judgment action to determine the validity of Denver Ordinance No. 669, codified
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