Robertson v. City and County of Denver5/2/1994
323 P.2d 614 (1958) (driving under the influence); Ray v. City & County of Denver, 109 Colo. 74, 121 P.2d 886 (1942) (regulation of small loans); Hilts v. Markey, 52 Colo. 382, 122 P. 394 (1912) (powers of county officers).
The regulation of firearms is a subject for state, not local, regulation. See Doe v. City & County of San Francisco, 136 Cal. App. 3d 509, 186 Cal. Rptr. 380, 385 (Cal. Ct. App. 1982) (holding that where state law does not require a permit for a firearm, the state law preempts local ordinance requiring registration of existing handguns and prohibiting new handguns); Dwyer v. Farrell, 193 Conn. 7, 475 A.2d 257, 261 (Conn. 1984) (holding that the local ordinance was preempted because, "by placing these restriction on the sale of handguns, the ordinance effectively prohibits what the state statues clearly permit"); Montgomery County v. Atlantic Guns, Inc., 302 Md. 540, 489 A.2d 1114, 1114 (Md. 1985) (holding that state law preempted a local ordinance that restricted ammunition sales); Duff v. Township of Northampton, 110 Pa. Commw. 277, 532 A.2d 500, 506 (Pa. Commw. Ct. 1987) (holding that a state law permitting firearm discharge preempted an ordinance restricting discharge), aff'd, 520 Pa. 79, 550 A.2d 1319 (Pa. 1988); Schneck v. City of Philadelphia, 34 Pa. Commw. 96, 383 A.2d 227, 229-30 (Pa. Commw. Ct. 1978) (deciding ordinance requiring police permit for firearm purchase was preempted because state law did not require a permit); Cherry v. Municipality of Metro. Seattle, 116 Wash. 2d 794, 808 P.2d 746, 748 (Wash. 1991) (recognizing that state legislature intended to preempt city, town and county firearms laws).
A patchwork of conflicting municipal regulations will not serve the interests of the state, and local attempts to regulate firearms, in my opinion, are prohibited by article II, section 13 of the Colorado Constitution. Owners of firearms who desire to hunt, target shoot, or pursue other lawful recreational activity in different parts of the state could be subject to a wide range of criminal penalties in different cities or towns if the definition of an assault weapon is not uniform and subject to clear definition.
In my view, if preemption is not applied, and every home-rule city or town is permitted to regulate assault weapons, a network of conflicting ordinances will be created that have no uniformity and will invite further litigation on the scope of the right to bear arms. The variation in the definitions, proscriptions, and penalties for the possession, use, or manufacture of assault weapons would be an undue infringement on the rights of the citizens of Colorado and therefore would be an unreasonable exercise of the state's police power.
IV
I agree with the majority that the right to bear arms under article II, section 13 of the Colorado Constitution is subject to regulation. Although I agree with the general analysis applied by the majority, the majority concludes that if an ordinance regulating firearms is governed by a reasonable state interest, the ordinance is constitutional. This standard is overly broad and should be limited to preserve the constitutional rights set forth in article II, section 13 of the Colorado Constitution. The validity of a firearms regulation as a legitimate exercise of the state's police power is determined by whether the regulation prohibits or abrogates legal activity, or unduly infringes on an individual's right to bear arms. In my view, the tri
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