Robertson v. City and County of Denver

874 P.2d 325, 18 Brief Times Rptr. 741, 29 A.L.R. 5th 837, 1994 Colo. LEXIS 353, 1994 WL 160556

• Court: Supreme Court of Colorado
• Decided: May 2, 1994
• Docket: 93SA91
• Status: Published

Opinions

Chief Justice ROVIRA

delivered the Opinion of the Court.

This case presents questions of whether an ordinance banning the manufacture, sale, or possession of “assault weapons” within the City and County of Denver violates article II, section 13 of the Colorado Constitution, and the constitutional proscription against laws that are impermissibly vague or overbroad.¹

I

In October 1989, the Denver City Council (City Council) enacted Ordinance No. 669 which became effective on November 14, 1989, and was codified as section 38-130 of the Denver Revised Municipal Code. See Appendix, Denver, Colo., Rev.Mun.Code art. IV, § 38-130 (1989) (the ordinance).

The individual plaintiffs challenged the constitutionality of the ordinance on numerous grounds.² The attorney general intervened as a plaintiff-intervenor on behalf of the State of Colorado.³ Subsequently, the trial court held a hearing to consider the plaintiffs’ and defendants’ motions for summary judgment.

The trial court granted plaintiffs’ motion.⁴ It concluded that article II, section 13 of the Colorado Constitution guarantees the people of Colorado the fundamental right to bear arms. It found that defendants had established a compelling governmental interest in regulating assault weapons, but that this interest was served only by banning those weapons capable of both a rapid rate of fire

and having the capacity to fire an inordinately large number of rounds without reloading. Thus, the court gave the ordinance a limiting construction so that it would serve the compelling interest defined by the court. The court additionally determined that certain provisions of the ordinance were vague or overbroad, and that those provisions were not severable from those which passed constitutional muster. Thus, the trial court invalidated the entire ordinance.⁵

Defendants appealed to this court pursuant to section 13-4-102(l)(b), 6A C.R.S. (1992 Supp.). We affirm in part, reverse in part, and remand the case for further proceedings.

II

The right to bear arms is guaranteed under article II, section 13 of the Colorado Constitution.⁶ That section provides:

The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.

Defendants argue that the trial court erred in concluding that this provision establishes a fundamental right to bear arms in self-defense.⁷ See Bowers v. Hardwick, 478 U.S. 186, 191-92, 106 S.Ct. 2841, 2844, 92 L.Ed.2d 140 (1986) (identifying fundamental constitutional rights as those “implicit in the concept of ordered liberty” or “deeply rooted in this Nation’s history or tradition”). Conversely, plaintiffs argue that the trial court correctly reached this conclusion.

While it is clear that this right is an important constitutional right, it is equally clear that this case does not require us to determine whether that right is fundamental. On several occasions, we have considered article II, section 18, yet we have never found it necessary to decide the status accorded that right. Rather, we have consistently concluded that the state may regulate the exercise of that right under its inherent police power so long as the exercise of that power is reasonable.

The earliest decision of this court applying article II, section 13, is People v. Nakamura, 99 Colo. 262, 62 P.2d 246 (1936). In Nakamura, we struck down a statute prohibiting unnaturalized foreign-born residents from owning or possessing a firearm of any kind, stating that while the state may preserve wild game and prevent the killing of the same by aliens, “it cannot disarm any class of persons or deprive them of the right guaranteed under section 13, article II of the Constitution, to bear arms in defense of home, person and property.” Id. at 264, 62 P.2d at 247. Thus, we concluded that insofar as the statute “denies the right of the unnaturalized foreign-born resident to keep and bear arms that may be used in defense of person or property, it contravenes the constitutional guaranty and therefore is void.” Id. at 265, 62 P.2d at 247.⁸ In reaching its holding, the Nakamura court was not required to determine what the status of the right to bear arms in self-defense was and, accordingly, that decision contains no analysis regarding whether that right is fundamental.

The next occasion in which this court applied article II, section 13, was Lakewood v. Pillow, 180 Colo. 20, 501 P.2d 744 (1972). In Lakewood, we reviewed the constitutionality of a municipal ordinance proscribing the possession or use of any deadly weapon except in one’s home. In voiding the ordinance as overbroad, we observed “that it is so general in its scope that it includes within its prohibitions the right to carry on certain businesses and to engage in certain activities which cannot under the police power be reasonably classified as unlawful and thus, subject to criminal sanctions.” Id. at 23, 501 P.2d at 745.⁹ Thus, we held that “[djepending upon the circumstances, all of these activities and others may be entirely free of any criminal culpability yet the ordinance in question effectively includes them within its prohibitions and is therefore invalid.” Id. Again, in reaching this conclusion, we were neither required to determine the status of the right to bear arms nor was there any analysis of whether that right is fundamental.

Similarly, in People v. Blue, 190 Colo. 95, 544 P.2d 385 (1975), we upheld the constitutionality of a statute which prohibited the possession of any firearm by persons convicted of certain crimes. In so holding, we first recognized that the Colorado Constitution does not guarantee an absolute right to bear arms under all circumstances, id. at 103, 544 P.2d at 391, and concluded that “[i]n our view, the statute here is a legitimate exercise of the police power.” Id. Once again, we were not required to determine the status of the right to bear arms in self-defense but rather, we resolved only the question of whether the law at issue constituted a legitimate exercise of the state’s police power.

Likewise, in People v. Ford, 193 Colo. 459, 568 P.2d 26 (1977), we concluded that a “flat prohibition” on the right of certain felons to possess firearms was subject to the guarantee of article II, section 13. Id. at 462, 568 P.2d at 28. In concluding that the constitution required recognition of an affirmative defense to this statute if a defendant shows that his purpose in possessing weapons was the defense of his home, person, and property, the court never determined the status of the right to bear arms in self-defense.

Finally, in People v. Garcia, 197 Colo. 550, 595 P.2d 228 (1979), we upheld, against a vagueness and overbreadth challenge, the constitutionality of a statute which prohibited the possession of any firearm by a person under the influence of intoxicating liquor or of a narcotic or dangerous drug. Doing so, we recognized that “[t]he right to bear arms is not absolute, and it can be restricted by the state’s valid exercise of its police power.” Id. at 552, 595 P.2d at 230 (citing Blue, 190 Colo. 95, 544 P.2d 385). In light of this fact we held:

It is clearly reasonable for the legislature to regulate the possession of firearms by those who are under the influence of alcohol or drugs. Unlike City of Lakewood, the statute here proscribes only that behavior which can rationally be considered illegitimate, and thus properly prohibited by the state’s exercise of its police power. Accordingly, the statute does not restrict the exercise of any fundamental right and is not overbroad.

Id., at 553, 595 P.2d at 230.

As in every other ease of this court construing article II, section 13, the Garcia court did not find it necessary to determine the status of the right to bear arms in self-defense. Rather, the court considered whether the law at issue constituted a reasonable exercise of the state’s police power and was therefore constitutional.

As these eases make clear, when confronted with a challenge to the validity of a statute or ordinance regulating the exercise of the right to bear arms guaranteed under article II, section 13 of the Colorado Constitution, a reviewing court need not determine the status of that right. Rather, the question in each case is whether the law at issue constitutes a reasonable exercise of the state’s police power.

This approach is in accordance with the vast majority of cases construing state constitutional provisions which guarantee an individual’s right to bear arms in self-defense.

That the right to bear arms is not an unlimited right and is subject to reasonable regulation is an accepted principle among other jurisdictions. The majority of the eases which have decided this issue have taken the position that legislation which regulates or prohibits the possession or use of certain arms must be reasonable to be a valid exercise of the police power.

Arnold v. Cleveland, 67 Ohio St.3d 35, 616 N.E.2d 163, 172 (1993) (citations omitted). See also Sklar v. Byrne, 727 F.2d 633, 637 (7th Cir.1984) (right to bear arms under the Illinois Constitution is subject to substantial regulation under the state’s police power); Rabbitt v. Leonard, 36 Conn.Supp. 108, 413 A.2d 489 (1979) (right to bear arms subject to reasonable exercise of police power); Rinzler v. Carson, 262 So.2d 661 (Fla.1972) (right to bear arms subject to valid police power regulation); Carson v. State, 241 Ga. 622, 247 S.E.2d 68, 72 (1978) (“the question in each case being whether the particular regulation involved is legitimate and reasonably within the police power, or whether ... under the name of regulation, [it] amounts to a deprivation of the constitutional right”) (quotations omitted); Kalodimos v. Morton Grove, 103 Ill.2d 483, 83 Ill.Dec. 308, 315, 470 N.E.2d 266, 273 (1984) (right to bear arms under the Illinois Constitution is subject to substantial regulation under the state’s police power); Matthews v. State, 237 Ind. 677, 148 N.E.2d 334 (1958) (right to bear arms subject to reasonable exercise of police power); State v. Hamlin, 497 So.2d 1369 (La.1986) (same); People v. Brown, 253 Mich. 537, 235 N.W. 245 (1931) (same); State v. LaChapelle, 234 Neb. 458, 451 N.W.2d 689 (1990) (same); State v. Dees, 100 N.M. 252, 669 P.2d 261 (Ct.App.1983) (same); Grimm v. New York, 56 Misc.2d 525, 289 N.Y.S.2d 358 (1968) (same); North Carolina v. Fennell, 95 N.C.App. 140, 382 S.E.2d 231 (1989) (same); Commonwealth v. Ray, 218 Pa.Super. 72, 272 A.2d 275 (1970) (same); City of Princeton v. Buckner, 180 W.Va. 457, 377 S.E.2d 139 (1988) (same); State v. Rupe, 101 Wash.2d 664, 683 P.2d 571 (1984) (same); Carfield v. State, 649 P.2d 865 (Wyo.1982) (same).¹⁰

Of all the cases cited above, only Arnold v. Cleveland, 67 Ohio St.3d 35, 616 N.E.2d 163 (1993) and Rabbitt v. Leonard, 36 Conn.Sup. 108, 413 A.2d 489 (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.¹¹ 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 11. 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, — U.S.-, 114 S.Ct. 419, 126 L.Ed.2d 365 (1993). The court invalidated one section of the ordinance, 38-130(b)(1)(b),¹² 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.¹³

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 “[i]t 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.”¹⁴

“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, — U.S. -, 112 S.Ct. 177, 116 L.Ed.2d 140 (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.

Ill

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 reasonably related to a legitimate governmental interest such as the public health, safety, or welfare. People v. Gross, 830 P.2d 933 (Colo.1992); People v. Pharr, 696 P.2d 235 (Colo.1984); Bushnell v. Sapp, 194 Colo. 273, 571 P.2d 1100 (1977).

The statement of legislative intent contained in the ordinance reads as follows:

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 enforcement agencies report increased use of assault weapons for criminal activities. This has resulted in a record number of related homicides and injuries to citizens and law enforcement officers. It is, therefore, the intent of the city council to place reasonable and necessary restrictions on the sale and possession of assault weapons while placing no restrictions on the right of citizens to use weapons which are primarily designed and intended for hunting, target practice and other legitimate sports or recreational activities and the protection of home, person and property.

§ 38-130(a).

The city council expressly sought to promote the health, safety, and security of the citizens of Denver by enacting the ordinance. More specifically, it declared that prohibiting the possession and sale of assault weapons was premised on the city’s interest in curbing crime — particularly homicides. As common sense suggests, “[a] state has a very significant interest in preventing crime.” Gross, 830 P.2d at 941. See also People v. French, 762 P.2d 1369, 1373-74 (Colo.1988) (prevention of crime is a compelling state interest). There can be no doubt that an ordinance, intended to prevent crime, serves a legitimate governmental interest sufficiently strong to justify its enactment.

In addition, the evidence presented to the trial court clearly showed that the ordinance is reasonably related to this interest. For example, A.W. Zavares, the chief of police of Denver, testified that “assault weapons are becoming the weapons of choice for drug traffickers and other criminals.” Evidence also was presented indicating that assault weapons were used in one of every ten crimes that resulted in a Bureau of Alcohol, Tobacco, and Firearm trace in 1988-89. Further, the evidence indicated that assault weapons accounted for nearly thirty percent of all firearms traced to organized crime, gun trafficking, and terrorists, and over twelve percent of drug related crimes nationwide.¹⁵

The unique characteristics of assault weapons coupled with the prevalent use of such weapons for criminal purposes establish that such weapons pose a substantial threat to the health and safety of the citizens of Denver.¹⁶ In addition, the evidence at trial supports the conclusion that weapons which are easily concealed, such as shotguns equipped with folding stocks, pose a greater threat to law enforcement officials and the public at large because their concealability makes them better suited to criminal purposes.

Finally, the evidence presented to the trial court established that Denver has sought to prohibit the possession and use of approximately forty firearms. The evidence also established that currently there are approximately 2,000 firearms available for purchase and use in the United States. Given the narrow class of weapons regulated by the ordinance, we have no hesitancy in holding that the ordinance does not impose such an onerous restriction on the right to bear arms as to constitute an unreasonable or illegitimate exercise of the state’s police power: there are literally hundreds of alternative ways in which citizens may exercise the right to bear arms in self-defense. While carving out a small category of arms which cannot be used for purposes of self-defense undoubtedly limits the ways in which the right to bear arms may be exercised, the barriers thereby created do not significantly interfere with this right. To the contrary, as the evidence plainly shows, there are ample weapons available for citizens to fully exercise their right to bear arms in self-defense.

Plaintiffs argue that the ordinance is not reasonably related to the state’s interest because assault weapons account for only one-half of one percent of the estimated 200 million privately owned weapons in the United States and are used in roughly one percent of all “gun crime.” While these statistics support the inference that a ban on assault weapons is unlikely to have a dramatic effect on crime, this fact is irrelevant for constitutional purposes.¹⁷ “[A] statute is not invalid under the Constitution because it might have gone farther than it did [and] reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind.” Katzenbach v. Morgan, 384 U.S. 641, 657, 86 S.Ct. 1717, 1727, 16 L.Ed.2d 828 (1966) (quotations and citations omitted). See also People v. Elliott, 186 Colo. 65, 525 P.2d 457 (1974).

In our judgment, the evidence presented to the trial court undeniably demonstrates that the ordinance is reasonably related to a legitimate governmental interest and constitutes a valid exercise of the state’s police power on the right to bear arms in self-defense.

IV

Defendants argue that the trial court erred in concluding that certain provisions of the ordinance are unconstitutionally vague. The basic inquiry in a void-for-vagueness challenge is whether the law forbids or requires the doing of an act in terms so vague that persons of ordinary intelligence must necessarily guess as to its meaning and differ as to its application. People v. Gross, 830 P.2d 933, 937 (Colo.1992); People v. Becker, 759 P.2d 26, 31 (Colo.1988). In evaluating a vagueness challenge, we are mindful that “statutory language must strike a balance between two potentially conflicting concerns: it must be specific enough to give fair warning of the prohibited conduct, yet must be sufficiently general to address the problem under varied circumstances and during changing times.” Parrish v. Lamm, 758 P.2d 1356, 1367 (Colo.1988). Moreover, the strictness of the vagueness test depends on whether the challenged law threatens to inhibit the exercise of constitutionally protected rights. Id. at 1366-67; People v. Garcia, 189 Colo. 347, 349, 541 P.2d 687, 688-89 (1975). When such constitutionally protected behavior may be inhibited, a greater degree of specificity is required than when a law does not implicate constitutionally protected liberties. Parrish, 758 P.2d at 1367.

The trial court found two phrases used in section 38 — 130(b)(1) to be impermissi-bly vague. First, it stated that the reference to weapons which may have “a shorter length than recreational firearms” was vague because “citizens must guess what length a ‘recreational firearm’ possesses.” Second, the court found that “the phrase ‘a greater rate of fire’ has no meaningful definition, since all semiautomaties have the same rate of fire.”

We do not agree that section 38-130(b)(l) 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)(l). 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.¹⁸ 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 “[a]ll 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 [an] 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)(l)(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. 334. 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 person 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);¹⁹ and, (3) concluding that section 38 — 130(b)(1)(b) and section 38-130(e), are unconstitutionally over-broad because they infringe on the right to bear arms. We affirm its conclusion that section 38 — 130(b)(1)(e) is void for vagueness.

Judgment affirmed in part, reversed in part, and case remanded with directions.

VOLLACK, J., concurs in the result. ERICKSON, J., 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 enforcement agencies report increased use of assault weapons for criminal activities. This has resulted in a record number of related homicides and injuries to citizens and law enforcement officers. It is, therefore, the intent of the city council to place reasonable and necessary restrictions on the sale and possession of assault weapons while placing no restrictions on the right of citizens to use weapons which are primarily designed and intended for hunting, target practice and other legitimate sports or recreational activities and the protection of home, person and property.

(b) Definitions. The following words and phrases, when used in this section, shall have these meanings respectively ascribed to them:

(1)Assault weapon. The general characteristics of an assault weapon may include the following features: A shorter length than recreational firearms; a folding stock; a modification of an automatic firearm originally designed for military use; a greater rate of fire or firing capacity than reasonably necessary for legitimate sports, recreational or protection activities and shall include all firearms with any of the following characteristics:

a. All semiautomatic action, center-fire rifles with a detachable magazine with a capacity of twenty-one (21) or more rounds.

b. All semiautomatic shotguns with a folding stock or a magazine capacity of more than six (6) rounds or both.

c. 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.

d. Any firearm which has been modified to be operable as an assault weapon as defined herein.

e. Any part or combination of parts designed or intended to convert a firearm into an assault weapon, including a detachable magazine with a capacity of twenty-one (21) or more rounds, or any combination of parts from which an assault weapon may be readily assembled if those parts are in the possession or under the control of the same person.

f. Any weapon listed in subsection (h).

(2) Fixed cartridge shall mean that self-contained unit consisting of the case, primer, propellant charge and projectile or projectiles.

(3) Magazine shall mean a box, drum or other container which holds and feeds ammunition into a semiautomatic rifle, shotgun or pistol.

(4) Pistol shall mean a weapon originally designed, made and intended to fire a projectile (bullet) from one (1) or more barrels when held in one (1) hand and having:

a. A chamber as an integral part of or permanently aligned with the bore or having a breech-loading chambered cylinder so arranged that the cocking of the hammer or movement of the trigger rotates it and brings the next cartridge in line with the barrel for firing; and

b. A short stock designed to be gripped by one (1) hand and at an angle to and extending below the line of the bore(s).

(5) Rifle shall mean a weapon designed or redesigned, made or remade and intended to be fired from the shoulder or hip and designed or redesigned or made or remade to use the energy of the explosive in a fixed cartridge to fire only a single projectile through a rifled bore for each single pull of the trigger and shall include any such weapon which may be readily restored to fire a fixed cartridge.

(6) Semiautomatic shall mean a weapon which fires a single projectile for each single pull of the trigger which automatically chambers the next round for firing and which employs a magazine.

(7) Shotgun shall mean a weapon designed or redesigned, made or remade and intended to be fired from the shoulder or hip and designed or redesigned and made or remade to use the energy of the explosive in a fixed shotgun shell to fire through a smooth bore either a number of projectiles (ball shot) or a single projectile for each pull of the trigger and shall include any such weapon which may be readily restored to fire a fixed shotgun shell.

(c)Specific weapons not included. As used in this section, assault weapon does not include any of the following:

(1) All weapons that do not use fixed cartridges, all weapons that were in production prior to 1898, all manually operated bolt-action weapons, all lever-action weapons, all slide-action weapons, all single-shot weapons, all multiple-barrel weapons, all revolving-cylinder weapons,' all semiautomatic weapons for which there is no fixed magazine with a capacity of twenty-one (21) or more rounds available, all semiautomatic weapons that use exclusively en bloc clips, all semiautomatic weapons in production prior to 1954 and all rimfire weapons that employ a tubular magazine.

(2) Any firearm that uses .22 caliber rimfire ammunition.

(8)Any assault weapon which has been modified either to render it permanently inoperable or to permanently make it a device no longer defined as an assault weapon.

(d) Supplemental provisions. Except as specifically stated herein, the provisions of this section are independent of and supplemental to any other provisions of law, and nothing shall prevent a device defined as an assault weapon in this section from also being regulated under other provision of law.

(e) Possession of assault weapons unlawful. 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, except that this subdivision shall not apply to:

(1) Any federal, state or local government agency or to any sworn members of said agencies acting within their official capacities.

(2) Any assault weapon which is being used as a movie prop for any motion picture or television program which is being filmed in whole or in part within the City and County of Denver if, prior to such use, the police department is notified in advance in writing of the date, time, location, production schedule and days upon which such use shall take place and the type and serial numbers of the firearms.

(3) The transportation of any assault weapon through the city by a nonresident who is in legal possession of an assault weapon or a person carrying a permit issued under subsection (f) for the purposes and under the conditions set forth in subsections (b)(2) through (b)(5), Revised Municipal Code.

(f) Conditional exception. Any person over the age of twenty-one (21) years who obtained an assault weapon legally prior to the effective date of this section may obtain a permit to keep, store and possess said assault weapon if:

(1) Said weapon is properly identifiable and contains its original serial number.

(2) An application for a permit for each assault weapon is filed with the police department within sixty (60) days of the effective date of this section pursuant to such procedures as the department may establish. The application shall contain a description of the firearm that identifies it uniquely, including all identification marks and numbers, the full name, address, date of birth and fingerprints of the owner and the address where such assault weapon will be stored and such other information as the department may deem appropriate. The place of storage and possession shall not be changed without notification to the department of the propqsed change in location and when said weapon will be transported. The department may charge a fee for registration not to exceed the actual processing costs of the department.

(3) The department shall issue a permit which shall identify the weapon and where it is to be stored.

(4) The information required for the registration and permitting of assault weapons shall be treated as confidential and shall not be made available to members of the general public. The council finds that release of such information would constitute an unwarranted invasion of personal privacy and could endanger the life or safety of person at the premises where an assault weapon is located. The information on a permit application shall be used by the city only for law enforcement purposes.

(g) Sale or transfer unlawful. It is unlawful to sell or transfer possession of an assault weapon possessed pursuant to subsection (f) within the City and County of Denver.

(h) Specific prohibited assault weapons. It is unlawful to carry, store or otherwise possess within the City and County of Denver any of the following weapons which are hereby declared to be assault weapons except as provided in and subject to all the provisions of this section:

(1)All of the following specified rifles:

a. Norineo, Mitchell and Poly Technologies Avtomat Kalashnikovs (all models).

b. Action Arms Israeli Military Industries UZI and Galil.

c. Beretta AR-70 (SC-70).

d. CETME G3.

e. Colt AR-15 and CAR-15.

f. Daewoo K-l, K-2, Max 1 and Max

2.

g. Fabrique Nationale (FN/FAL, FN/LAR and FNC.

h. FAMAS MAS223.

i. Heckler & Koch HK-91, H-93, HK-94 and PSG-1.

j. MAC 10 and MAC 11.

k. SKS with detachable magazine.

l. SIG AMT, SIG 500 Series and SIG PE-57.

m. Springfield Armory BM59 and SAR-48.

n. Sterling MK-6 and SAR.

o. Steyr AUG.

p. Valmet M62, M71S and M78.

q. Armalite AR-180 Carbine.

r. Bushmaster Assault Rifle (arm-gun).

s. Calico M-900 Assault Carbine.

t. Mandall THE TAC-1 Carbine.

u. Plainfield Machine Company Carbine.

v. PJK M-68 Carbine.

w. Weaver Arm Nighthawk.

(2) All of the following specified pistols:

a. Action Arms UZI.

b. Encom MP-9 and MP — 45.

c. MAC 10 and MAC 11.

d. INTRATEC TEC-9.

e. Mitchell Arms Spectre Auto.

f. Sterling MK-7.

g. Calico M-900.

(3) All of the following specified shotguns:

a. Franchi SPAS 12 and LAW 12.

b. Gilbert Equipment Company Striker 12.

c. Encom CM-55.

(4) Other models by the same manufacturer that are identical to firearms listed in subdivisions (1), (2) or (3) except for slight modifications or enhancements, including, but not limited to, a folding or retractable stock; adjustable sight; case deflector for left-handed. shooters; shorter barrel; wooden, plastic or metal stock; larger clip size; different caliber provided the caliber exceeds .22 rimfire; or bayonet mount.

(5) Firearms which have been redesigned from, renamed, renumbered or patterned after one of the listed firearms in subdivisions (1), (2), (3) or those described in subdivision (4) regardless of the company of production or distribution or the country of origin or any firearm which has been manufactured or sold by another company under a licensing agreement to manufacture or sell the identical or nearly identical firearms as those listed in subdivision (1), (2), (3) or those described in subdivision (4) regardless of the company of production or distribution or the country of origin.

(i) Specific magazine prohibited. It shall be unlawful to carry, store or otherwise possess a magazine which will hold or may be modified to hold twenty-one (21) or more rounds.

(j) Penalty. Any person, firm or corporation who is convicted of violating any provision of this section shall be punished by a fine of not less than one hundred ($100.00) or more than nine hundred ninety-nine dollars ($999.00) and a term of incarceration of not less than ten (10) days nor more than one hundred eighty (180) days.

(k) Violation; disposition. Upon a conviction of violating any provision of this section, the weapon shall be confiscated and destroyed under section 38-120, Disposition of confiscated weapons.

(Ord. No. 669-89, § 1, 11-6-89; Ord. No. 719-89, § 1, 11-27-89)

1 . The Second Amendment to the United States Constitution is not implicated in this case. That amendment provides: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear Arms shall not be infringed.”

2 . Specifically, they argued the ordinance is unconstitutional because it: violates the right to bear arms provided in art. II, § 13 of the Colorado Constitution; the militia clause of art. XVII of the Colorado Constitution; equal protection of the laws under the Fourteenth Amendment to the United States Constitution and art. II, § 25 of the Colorado Constitution; is pre-empted by state law under article XX of the Colorado Constitution; constitutes an ex post facto law prohibited by art. II, § II of the Colorado Constitution; and is unconstitutionally vague and overbroad.

The trial court rejected the militia, equal protection, pre-emption, and ex post facto claims. These rulings have not been appealed and thus, are not before this court. See infra note 5.

3 . The individual plaintiffs and the State of Colorado will be referred to collectively as "plaintiffs.”

4 . The trial court’s order is lengthy. In the interest of clarity, the order is initially set forth only in its most basic form and a more detailed discussion and analysis is undertaken, as necessary, below.

5 . The trial court made a number of rulings that have not been appealed. Defendants have sought review of the following issues:

I. Is the limited right to bear arms in the defense of home, person, and property a fundamental right?

II. Did the district court err in determining that the city’s governmental interest was limited to regulating weapons with both a rapid rate of fire and a large magazine?

III. Did the district court improperly interpret the ordinance by limiting the prohibition of listed weapons of section 38 — 130(h) to only those weapons also defined in section 38-130(b)(1) and by declaring the definition of assault pistol to be vague?

IV.Is the ordinance, which only restricts one type of weapon, overbroad because it unduly [injfringes upon the limited right to bear arms for defensive purposes?

Defendants have not appealed, and do not argue that the trial court erred in concluding that § 38-130(h)(5) is void for vagueness. Thus, this issue is not before us. In addition, because plaintiffs have not filed a cross-appeal, allegations of error on the part of the trial court which are raised in their answer brief but not presented for this court's review by defendants are not properly before us {i.e., that the ordinance violates the prohibition against ex post facto laws and is pre-empted by state statutes regulating firearms). See Douglas County Bd. of Comm’rs v. Public Util. Comm’n, 866 P.2d 919, 922, n. 4 (Colo.1994).

6 .The Colorado Constitution, like the constitution of many other states, expressly guarantees the right to bear arms for purposes of self-defense and the defense of property. Four states have right to bear arms provisions which are identical to Colorado’s. Miss. Const, art. Ill, § 12; Mo. Const, art. I, § 23; Mont. Const, art. II, § 12; and Okla. Const, art. II, § 26. The constitutions of twenty other states expressly guarantee individuals the right to bear arms for purposes of self-defense and thus, are closely analogous to the right guaranteed under the Colorado Constitution. Ala. Const, art. I, § 26; Ariz. Const, art. II, § 26; Conn. Const, art. I, § 15; Del. Const. art. I, § 20; Fla. Const, art. I, § 8; Ind. Const. art. I, § 32; Ky. Const. § I, para. 7; Mich. Const. art. I, § 6; Neb. Const, art. I, § 1; N.H. Const, pt. 1, art. 2-a; N.D. Const, art. I, § 1; Or. Const, art. I, § 27; Pa. Const, art. I, § 21; S.D. Const, art. VI, § 24; Tex. Const, art. I, § 23; Utah Const. art. I, § 6; Vt. Const, ch. 1, art. 16; Wash. Const. art. I, § 24; W.Va. Const, art. Ill, § 22; and Wyo. Const, art. 1, § 24.

In guaranteeing the right to bear arms in self-defense, art. II, § 13 of the Colorado Constitution is broader than the constitutions of several states which have been construed merely to guarantee the collective or "state’s right” to bear arms for the maintenance of the militia (though Colorado's Constitution also guarantees the right to bear arms for this purpose). See, e.g., Alaska Const, art. I, § 19; Haw. Const, art. I, § 15; La. Const, art. I, § 11; N.C. Const, art. I, § 30; S.C. Const, art. I, § 20. See also Ark. Const, art. II, § 5 (right to bear arms for "common defense”); Mass. Const, pt. 1 art. XVII (same); Tenn. Const. art. I, § 26 (same). California, Iowa, Maryland, Minnesota, New Jersey, and Wisconsin have no constitutional provisions specifically guaranteeing the right to bear arms.

7 . The right of individuals to bear arms in defense of person, home, and property will be referred to as the right to bear arms in self-defense.

8 . As support for this conclusion, we quoted the following passage from Smith v. Farr, 46 Colo. 364, 104 P. 401 (1909): "The police power of a state cannot transcend the fundamental law, and cannot be exercised in such a manner as to work a practical abrogation of its provisions.” Nakamura, 99 Colo, at 264, 62 P.2d at 247.

9 . As examples of such activities, the court ”note[d] that this ordinance would prohibit gunsmiths, pawnbrokers and sporting goods stores from carrying on a substantial part of their business. Also, the ordinance appears to prohibit individuals from transporting guns to and from such places of business. Furthermore, it makes it unlawful for a person to possess a firearm in a vehicle or in a place of business for the purpose of self-defense.” Lakewood, 180 Colo, at 23, 501 P.2d at 745.

10 . However, outright prohibitions on the possession of all firearms have been held to violate constitutional protections. See e.g. City of Las Vegas v. Moberg, 82 N.M. 626, 485 P.2d 737, 738 (Ct.App.1971) (statute which completely prohibits the right to bear arms is unconstitutional; it denies the right as opposed to regulating it); In re Brickey, 8 Idaho 597, 70 P. 609 (1902) (invalidating statute prohibiting the carrying of any weapon in the state’s cities, towns, and villages, concluding that the legislature may regulate but not prohibit the right to bear arms).

It is significant to note that while plaintiffs argue that because the right to bear arms is fundamental, any restrictions on that right must be subject to strict scrutiny, they fail to point to even one published opinion where the strict scrutiny standard of review has been applied to a firearms regulation, and we are aware of none. Though this could be explained by noting that several cases striking down arms regulations were decided prior to development of the "strict scrutiny” test, see, e.g., Wilson v. State, 33 Ark. 557 (1878); Nunn v. State, 1 Ga. (1 Kelly) 243 (1846); Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90, 12 Am.Dec. 251 (1822), the vast majority of cases addressing regulations on the right to bear arms in self-defense have been decided after the development of this test.

11 . In In re Application of Wolstenholme, 1992 WL 207245 (Del.Super.1992), the court addressed the question whether there was a fundamental right to carry a concealed weapon. The court held there was not. The courts in Sklar v. Byrne, 727 F.2d 633 (7th Cir.1984) and Kalodimos v. Morton Grove, 103 Ill.2d 483, 83 Ill.Dec. 308, 470 N.E.2d 266 (1984), were presented with the question of whether the right to bear arms guaranteed under the Illinois Constitution is a fundamental right. Neither court resolved that question but concluded, based on the text and history of the Illinois Constitution, that the right to bear arms in Illinois is subject to extensive regulation under the state’s police power and held therefore, that regulations on the right to bear arms are not subject to the strict scrutiny standard of review. Sklar, 727 F.2d at 637 ("[sjince the state constitutional right is narrowly circumscribed by the police power, the fact that the Chicago ordinance as a whole affects the right does not trigger compelling state interest analysis of the ordinance”); Kalodimos, 83 Ill. Dec. at 494-95, 470 N.E.2d at 277-78 (applying the rational basis test to an ordinance prohibiting the possession of handguns on the grounds that "the right to bear arms secured by the Illinois Constitution, which did not exist prior to 1970, is subject ... to substantial infringement in the exercise of the police power even though it operates on the individual level”).

12 . Though the trial court's order refers to § "(b)(l)c," it is clear that the court is actually discussing § 38-130(b)(l)(b) which refers to semiautomatic shotguns with a folding stock. Section 38-130(b)(l)(b) is the only section of the ordinance which refers specifically to shotguns equipped with folding stocks.

13 . We also note that the trial court erred in applying an overbreadth analysis to § 38-130(b)(1)(b). After concluding that this section was not supported by a compelling state interest — a finding which, under strict scrutiny, is sufficient to invalidate the section — the court went on to say that if concealability was a sufficient reason to ban these weapons, then handguns too could be prohibited. While this reasoning may be correct, the fact is that this section does not, by any stretch of the imagination, purport to ban the possession of all handguns. Assuming, as the trial court did, that such a ban would be unreasonable, this section of the statute cannot be overbroad on the grounds that it prohibits the possession of handguns.

In order to find facial overbreadth, the alleged overbroad application of the statute must be real. People v. Batchelor, 800 P.2d 599, 601 (Colo.1990). The ordinance does not prohibit the possession of all handguns and thus, this "over-broad” application of the ordinance is not real.

14 .Paradoxically, the trial court concluded that this section is unconstitutional because "it precludes constitutionally protected conduct” in spite of the fact that earlier in its order, the court held that “the ordinance is narrowly tailored to serve the previously determined compelling governmental interest. Thus, the ordinance does not violate article II, section 13, and is not constitutionally overbroad as it relates to the ban on assault weapons.”

These two conclusions are irreconcilable because a law which infringes on a fundamental right is constitutionally permissible so long as it is supported by a compelling governmental interest and narrowly tailored to serve that interest.

15 . The prevalent use of assault weapons for criminal purposes has been recognized by the Bureau of Alcohol, Tobacco, and Firearms (ATF), an agency of the United States Department of the Treasury which is responsible for the enforcement of federal firearms laws. See Report and Recommendations of the ATF Working Group on the Importability of Certain Semi-Automatic Rifles, (July 6, 1989). ATF Director Stephen E. Higgins, in a sworn declaration filed in federal court, stated:

The primary reason that immediate action was necessary to stop the importation of semi-automatic assault-type rifles was the dramatic increase in the use of these types of weapons in crime and the threat to public safety presented by such increase.... Almost daily ATF special agents and other Federal, State, and local police see the spread of assault-type weapons on the street. It is the general consensus of law enforcement officials that the ever-increasing presence of assault-type rifles in the illicit drug trade and in other types of crime places the safety and the very lives of the American public in immediate peril. The proliferation of these weapons and their massive firepower also poses a tremendous threat to the lives of Federal, State and local police officers who are outgunned by the criminals they encounter on the streets.

Declaration of Stephen E. Higgins, Director, ATF, filed in Gun South, Inc. v. Brady, 711 F.Supp. 1054 (N.D.Ala.1989).

16 . Two of the salient features of assault weapons which make them particularly threatening are their capability for a rapid rate of fire and the ability to fire many rounds without reloading. One enthusiast has characterized "the assault pistol's forte [as being] the capability of delivering an impressively large number of shots in a rapid, roaring staccato, without need to pause even briefly to slam in a fresh magazine.” J. Lewis, The Gun Digest Book of Assault Weapons 48 (2d ed. 1989).

The trial court concluded that Denver had shown a compelling state interest in banning those assault weapons which had both of these features. It concluded that both features had to exist in order to justify the ban because referring to semiautomatic weapons with a “greater rate of fire" was, standing alone, meaningless inasmuch as "all semiautomatics fire one and only • one shot per trigger pull and that all semiautomatics can fire no more rapidly than the shooter can repeatedly squeeze the trigger.”

While it is true that semiautomatic firearms fire one round for each pull of the trigger, we disagree with the trial court's conclusion that this characteristic is without meaning. It is the fact that assault weapons are capable of a rapid rate of fire, in that they will fire as fast as the shooter can pull the trigger, that makes them a greater threat to the public safefy and welfare as compared to other firearms, not that they will, by virtue of being assault weapons, always fire at a greater rate when compared to other types of weapons.

17 . These statistics support the conclusion that prohibiting the possession of assault weapons does not constitute an unreasonable exercise of the state's police power.

18 . The trial court recognized this fact by noting that pursuant to § 38 — 130(b)(1), "an 'assault weapon' may contain certain features. Whether those features are present on a particular weapon is not determinative that the weapon is an 'assault weapon.' The determining characteristics are set forth in Sections 38-130(a)(l)a through f of the ordinance.”

We note parenthetically that while the above quotation taken from the trial court’s order referred to § 38-130(a)(l), it is clear that the court was referring to § (b)(1), as there is no § (a)(1) of the ordinance.

19 . This conclusion of the trial court obviated the need to address plaintiffs' claim that § 38 — 130(h) is unconstitutionally vague because over half the weapons listed in that section either are not semiautomatics or do not exist.

Because we conclude that the ruling which rendered that claim moot was erroneously decided, the case must be remanded to the trial court in order to address plaintiffs' vagueness challenge to § 3 8-130(h) in a manner not inconsistent with this opinion.