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Robertson v. City and County of Denver5/2/1994
erson of common intelligence. Consequently, we conclude that the trial court correctly determined that section 38-130(b)(1)(c) is unconstitutionally vague.
We conclude that this section, though vague, is severable from the remainder of the ordinance. "As a general rule, if a statute is constitutional in one part and unconstitutional in another, the constitutional provision may be sustained and the unconstitutional stricken." City of Lakewood v. Colfax Unlimited Ass'n, Inc., 634 P.2d 52, 70 (Colo. 1981). "Whether unconstitutional provisions are excised from an otherwise sound law depends on two factors: (1) the autonomy of the portions remaining after the defective provisions have been deleted and (2) the intent of the enacting legislative body." Id.
It is clear that the remaining sections of the ordinance are autonomous from section 38-130(b)(1)(c). This section attempted to proscribe the possession of one type of assault weapon. The other provisions of the ordinance, which proscribe the possession of other weapons and dictate the scope and exceptions to the prohibition, are given their full force and effect irrespective of section 38-130(b)(1)(c). The only result of finding this section vague is that the reach of the ordinance is slightly narrower than as enacted.
As for the legislative intent in enacting the ordinance, there is no evidence that Denver would not have passed this law had it known that section 38-130(b)(1)(c) was unconstitutional. To the contrary, Denver's intention to allow for severability is clearly set forth in its municipal code which provides, in part, that "the council hereby declares that in these regards the provisions of this Code and all rules and regulations promulgated hereunder are severable." Denver, Colo., Rev. Mun. Code, § 1-12 (1989).
Consequently, we conclude that the offending section of the ordinance is severable from those portions of the ordinance that are constitutional.
V
In Conclusion, we hold that the trial court erred in holding that the right to bear arms in self-defense, guaranteed by article II, section 13, is a fundamental right. Such a determination is not necessary in analyzing a constitutional challenge premised on article II, section 13. We also hold that the trial court erred in concluding that the ordinance must be subject to strict scrutiny in order to evaluate its constitutionality. Thus, it erred in: (1) requiring defendants to show that the ordinance is supported by a compelling state interest and narrowly tailored to meet that interest; (2) limiting the prohibition on those weapons listed in section 38-130(h) only to include those weapons which meet the definitions of section 38-130(b)(1); and, (3) concluding that section 38-130(b)(1)(b) and section 38-130(e), are unconstitutionally overbroad because they infringe on the right to bear arms. We affirm its Conclusion that section 38-130(b)(1)(c) is void for vagueness.
Judgment affirmed in part, reversed in part, and case remanded with directions.
JUSTICE VOLLACK concurs in the result.
JUSTICE ERICKSON Dissents.
APPENDIX
Section 38-130 Assault weapons
(a) Legislative intent. 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
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