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Robertson v. City and County of Denver5/2/1994
8 (1968) (same); North Carolina v. Fennell, 95 N.C. App. 140, 382 S.E.2d 231 (N.C. Ct. App. 1989) (same); Commonwealth v. Ray, 218 Pa. Super. 72, 272 A.2d 275 (Pa. 1970) (same); City of Princeton v. Buckner, 180 W. Va. 457, 377 S.E.2d 139 (W. Va. 1988) (same); State v. Rupe, 101 Wash. 2d 664, 683 P.2d 571 (Wash. 1984) (same); Carfield v. State, 649 P.2d 865 (Wyo. 1982) (same).
Of all the cases cited above, only Arnold v. Cleveland, 67 Ohio St. 3d 35, 616 N.E.2d 163 (Ohio 1993) and Rabbitt v. Leonard, 36 Conn. Supp. 108, 413 A.2d 489 (Conn. 1979), expressly reach a holding on the question of the status of the right to bear arms. Indeed these are the only cases we are aware of that determine whether the individual right to bear arms in self-defense is a fundamental right. Both of those cases conclude the right is fundamental but nevertheless is subject to the reasonable exercise of the state's police power.
Based on the precedent of this court, we conclude that the trial court erred in reaching the question of the status to be accorded the right guaranteed under article II, section 13 of the Colorado Constitution and in holding that the right is fundamental. Such an analysis and Conclusion is contrary to the entire body of precedent of this court.
Furthermore, we hold that the trial court erred in reviewing the ordinance under the strict scrutiny standard of review and in asking whether the ordinance was supported by a compelling state interest and narrowly tailored to meet that interest. See Evans v. Romer, 854 P.2d 1270, 1275 (Colo.) (recognizing that laws which infringe on fundamental rights are subject to strict judicial scrutiny), cert. denied, 126 L. Ed. 2d 365, 114 S. Ct. 419 (1993). The court invalidated one section of the ordinance, 38-130(b)(1)(b), on the grounds that it was not supported by a compelling state interest and limited the scope of another, section, 38-130(h), so that it would prohibit only those weapons for which defendants had shown a compelling state interest in banning. See infra note 16. For the reasons stated above, we hold that the trial court erred in subjecting these provisions to the strict scrutiny standard of review.
Similarly, we conclude that the trial court erred in holding section 38-130(e) unconstitutional because it does not permit the possession of assault weapons for self-defense. That section provides that "it shall be unlawful to carry, store, keep, manufacture, sell or otherwise possess within the City and County of Denver a weapon or weapons defined herein as assault weapons . . . ." The trial court concluded that this section is unconstitutionally overbroad because "limiting the use of such weapons in such a manner that the weapons can not legally be used for the purpose of defense of person, property or home is in direct conflict with article II, section 13 of the Colorado Constitution."
"A statute is facially overbroad if it sweeps within its reach constitutionally protected, as well as unprotected, activities." People v. Ryan, 806 P.2d 935, 939-40 (Colo.), cert. denied, 112 S. Ct. 177 (1991). The right to bear arms may be regulated by the state under its police power in a reasonable manner. Thus, we conclude that the trial court erred in holding that restricting the types of weapons that may be used in exercising the right to bear arms in self-defense constitutes a per se violation of that right.
III
We turn next to the question of whether the ordinance is constitutional under the analysis outlined above. An act is within the state's police power if it is r
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