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Robertson v. City and County of Denver5/2/1994
e phrase 'a greater rate of fire' has no meaningful definition, since all semiautomatics have the same rate of fire."
We do not agree that section 38-130(b)(1) is vague. That section expressly states that an assault weapon "may include" certain "general characteristics," including those characteristics the court invalidated as vague. No weapon is actually classified as an assault weapon, and thus banned, under the ordinance based on the language of section 38-130(b)(1). Rather, the definition of an assault weapon "shall include" the characteristics set forth in section 38-130(b)(1)(a) - (f) and only those "weapons defined herein as assault weapons" are banned in section 38-130(e). Consequently, we conclude that because section 38-130(b)(1) does not demarcate what weapons are covered by the ordinance, the language of that section neither prohibits nor requires the doing of anything. As such, this section is not unconstitutionally vague and there is little if any risk that this language might inhibit the exercise of the right to bear arms.
The trial court also concluded that section 38-130(b)(1)(c) is unconstitutionally vague. That section defines an assault weapon to include "all semiautomatic pistols that are modifications of rifles having the same make, caliber and action design but a shorter barrel and no rear stock or modifications of automatic weapons originally designed to accept magazines with a capacity of twenty-one (21) or more rounds." The court concluded that this section was vague for the following reasons:
Persons attempting to comply with this section must also learn not only what guns their pistol was designed from, but also learn the design history of the ancestor guns to determine if it was automatic weapon "originally designed to accept magazines with a capacity of twenty-one (21) or more rounds" or if it has "the same" action design. These characteristics can not be readily [ascertained] by a person of common intelligence.
Defendants argue this Conclusion is erroneous because it is "not unreasonable" to require persons purchasing or possessing pistols to determine if it is an assault pistol as defined by section 38-130(b)(1)(c). In support of this contention, defendants argue that a number of publications are available which provide all the information needed to determine whether a pistol is an assault pistol. In our judgment, this fact does not render this section of the ordinance constitutional.
First, vagueness is not determined by reference to whether it is reasonable to require individuals to assess whether a given law applies to them. See supra p. 21. Second, we are not persuaded that simply because publications exist which contain the information needed to establish the design history of a pistol, that this saves section 38-130(b)(1)(c) from being vague. Whether persons of ordinary intelligence must necessarily guess as to an ordinance's meaning and application does not turn on whether some source exists for determining the proper application of a law. Unlike the ordinance at issue in Colorado Dog Fanciers v. Denver, 820 P.2d 644 (Colo. 1991), the assault weapon ordinance does not specify any source which would aid in defining what an assault pistol is, nor does it state where such a source can be found.
Section 38-130(b)(1)(c) does not provide sufficient information to enable a person of common intelligence to determine whether a pistol they possess or may purchase has a design history of the sort which would bring it within this section's coverage. As the trial court correctly concluded, ascertaining the design history and action design of a pistol is not something that can be expected of a p
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