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Robertson v. City and County of Denver5/2/1994
at section 38-130 of the Denver Revised Municipal Code (ordinance). Subsequently, the attorney general intervened on behalf of the State of Colorado. The district court, in determining cross-motions for summary judgment, considered affidavits and other evidence and held the ordinance to be unconstitutional on a number of grounds. As a result of this ruling, the district court entered summary judgment in favor of the plaintiffs. Subsequently, the City and County of Denver appealed.
On appeal, the issue of the validity of the ordinance centers on whether article II, section 13 of the Colorado Constitution prohibits the Denver City Council from imposing limitations on the use, manufacture, and possession of the firearms described in the ordinance as assault weapons. I agree with the majority that the General Assembly may regulate the manufacture, possession, and use of firearms that by proper and adequate definition are assault weapons. However, I agree with the attorney general that the City and County of Denver does not have the authority to regulate all firearms identified as assault weapons because the regulation is a matter of statewide concern. Accordingly, I respectfully Dissent.
I
The right to bear arms under the Second Amendment to the United States Constitution does not have any bearing or relevancy in resolving the issues before us. The federal law interpreting the Second Amendment is not helpful because the wording of the Federal Constitution differs materially from the wording of the Colorado Constitution. Therefore, federal law on fundamental rights under the United States Constitution does not assist us in our interpretation of the nature of the rights afforded by article II, section 13 of the Colorado Constitution.
In my view, the appropriate analysis requires a court to determine if a statute or ordinance regulating firearms is a legitimate exercise of the state's police power or is rationally related to some other governmental interest. In reviewing a statute or ordinance regulating firearms, a court must determine if it prohibits or abrogates legal activity or if it unduly infringes on an individual's right to bear arms. Accordingly, the trial court erred in applying an analysis based upon federal law relating to fundamental rights and subjecting the ordinance to strict scrutiny review.
A
I agree with the majority that Colorado law is determinative on this issue. In People v. Blue, 190 Colo. 95, 103, 544 P.2d 385, 390-91 (1975), we recognized that regulation of firearms involves conflicting rights--the state's right pursuant to its police power to impose reasonable regulations for the purpose of protecting the health, safety, and welfare of its citizens and the individual's right to bear arms.
The appropriate inquiry when determining if an ordinance or statute regulating firearms is constitutional is whether the regulation is a "legitimate" exercise of the state's police power. See People v. Garcia, 197 Colo. 550, 553, 595 P.2d 228, 230 (1979). An act is within the state's police power if it is reasonably related to public health, welfare, or safety. People v. Pharr, 696 P.2d 235, 237 (Colo. 1984). In Pharr, we recognized that when fundamental rights or suspect classifications are not involved, a statute will withstand constitutional challenge if it is rationally related to legitimate governmental interest. Id. Thus, the state may place reasonable limits on the right to bear arms granted by the Colorado Constitution. The trial court should have d
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