State v. Vlacil

645 P.2d 677, 28 A.L.R. 4th 1086, 1982 Utah LEXIS 947

• Court: Utah Supreme Court
• Decided: April 14, 1982
• Docket: 16863
• Status: Published

Opinions

HALL, Chief Justice:

Defendant appeals his conviction of possession of a dangerous weapon by a person who is not a citizen of the United States.¹

The facts leading up to defendant’s arrest commenced at the Eagle’s Club in Price, Utah. Nonmembers are allowed three visits to the private club; thereafter, a nonmember is not allowed in the club unless a commitment to join is made. Defendant, a Czechoslovakian national, was not a member of the club and had visited it on at least three occasions. At about 8:00 p. m. on February 21, 1979, defendant was again present in the club with one Hykl when several other acquaintances of defendant, including James (Rocky) Cruz, arrived. Shortly thereafter, defendant and Cruz became embroiled in an argument concerning the club’s membership policy and defendant’s status as a nonmember. Ultimately, defendant was forcibly ejected from the club.

At approximately 1:00 a. m., Cruz and the others left the club and proceeded to Rocky Ann’s, a bar owned jointly by Cruz and Ann Archibald. Between 1:15 and 1:30, a bullet was fired from outside, through a window of the bar. Patrons at the bar looked outside and saw defendant holding an automatic weapon which they referred to as a “burp gun.” Cruz went outside to talk with defendant. As Cruz approached, defendant said, “Stay away or I’ll kill you.” Cruz proceeded toward defendant but withdrew several feet when defendant “rammed the barrel” of the gun in Cruz’s face. At that point, defendant fired the gun, shooting Cruz in the shoulder. Defendant and Hykl departed in defendant’s van.

At about 2:00 a. m. on February 22,1979, the Price City Police Department received a call for assistance and proceeded to the trailer park where defendant’s van was parked. Defendant and Hykl (who were sitting in the van) were ordered to exit the van and to lie on the ground. One officer went to the van and removed therefrom a gun later identified as the weapon defendant had used. Defendant was arrested and charged with possession of a dangerous weapon. The ease was tried to a jury which found defendant to be guilty as charged. The court thereafter sentenced defendant to an indeterminate term not to exceed five years. Defendant appeals!

U.C.A., 1958, 76-10-503(1) provides, in pertinent part, as follows:

Any person who is not a citizen of the United States ... shall not own or have in his possession or under his custody or control any dangerous weapon as defined in this part. Any person who violates this section is guilty of a class A misdemeanor, and if the dangerous weapon is a firearm or sawed-off shotgun he shall be guilty of a felony of the third degree.

It is undisputed that defendant is “not a citizen of the United States” and that at the time of his arrest he was in possession of a firearm. This appeal challenges the statute as being facially unconstitutional because (1) it prohibits aliens from possessing firearms for their defense and security, and (2) it is an improper exercise of the police power inasmuch as the regulation is aimed at an area of the law which has been preempted by the federal government.

In support of his first argument, defendant contends that the statute violates his constitutionally protected right to bear arms.²

The Second Amendment to the Constitution of the United States provides as follows:

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.

In United States v. Miller,³ the United States Supreme Court examined the historical foundation of the Second Amendment wherein it stated as follows:

The Constitution as originally adopted granted to the Congress power — “To provide for calling forth the Militia to execute the Laws of the Union . ..; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.” With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.⁴

The right to bear arms under the federal Constitution is therefore collective rather than individual.⁵ The matter was stated as follows in Stevens v. United States:⁶

Since the Second Amendment right “to keep and bear Arms” applies only to the right of the State to maintain a militia and not to the individual’s right to bear arms, there can be no serious claim to any express constitutional right of an individual to possess a firearm.

An individual’s right to bear arms is subject to the police power of the various states.⁷ As stated in Hardison v. State:⁸

[T]he Second Amendment right is not absolute. The provision only applies to the federal government and absent federal or state constitutional restraints the authority to regulate weapons comes from a state’s police powers. This is a valid subject for state regulation.

This Court has previously held that the statute under which defendant was convicted is a proper exercise of police power by the state. In State v. Beorchia,9 the Court addressed an equal protection attack on the statute and held as follows:

The sale, use and possession of firearms are proper subjects of regulation by the State. The Fourteenth Amendment is not generally applied so as to restrict exercise of the police powers of the State. The statute under consideration was directed toward the safeguarding of the public peace and security and is thus a proper exercise of the police powers. [Citing Ex Parte Rameriz, 193 Cal. 633, 226 P. 914, 34 A.L.R. 51; Patsone v. Pennsylvania, 232 U.S. 138, 34 S.Ct. 281, 58 L.Ed. 539; Anno. 24 A.L.R. 1119; 3 Am.Jur.2d, Aliens & Citizens, Sec. 41, p. 890.] It appears that the legislature determined that possession of firearms by aliens was harmful, and we do not quarrel with the decision of that body.¹⁰

Defendant also contends that by prohibiting possession of firearms by aliens, the legislature has violated the provisions of our own Constitution. Article I, Section 6 of the Utah Constitution reads as follows:

The people have the right to bear arms for their security and defense, but the Legislature may regulate the exercise of this right by law.

Defendant contends that although the legislature can regulate the right to bear arms, it cannot prohibit the possession of firearms by a class for any purpose.

This Court also addressed this argument in State v. Beorchia, wherein it was squarely held that “[i]t is quite evident from the language above set forth [Article I, Section 6] that the Legislature had sufficient power to enact the statute in question.” That case is therefore dispositive and defendant’s attempt to discredit the reasoning thereof is without merit.¹¹

Defendant’s second argument on. appeal is that the statute is invalid inasmuch as the regulation of aliens is uniquely within the power of the federal government. Defendant cites several cases to the effect that the federal government has preempted the field of immigration, naturalization, and regulation of aliens.¹²

In Florida Avocado Growers v. Paul,13 the United States Supreme Court enumerated the following standards to determine whether state regulations are preempted by federal legislation: (1) A state regulation is preempted where an unambiguous congressional mandate exists to that effect; (2) preemption exists where the state regulation cannot be enforced without impairing federal superintendence of the field; and (3) preemption of the state regulation exists where it stands as an obstacle to the accomplishment and execution of the full purposes of Congress.

Defendant relies upon Title 18 U.S.C. Appendix §§ 1201 through 1203 as federal legislation preempting the field. Said statute prohibits the receipt, possession, or transportation of firearms by aliens who are illegally in the United States and establishes penalties for violation thereof. The statute contains no unambiguous mandate to preclude a state from regulating the possession of firearms by aliens. Although the statutes have similar objectives, the Utah statute in no way impairs enforcement of federal law. Neither does the state statute stand as an obstacle to the broader federal purposes in the areas of immigration and naturalization.¹⁴ Consequently, under any of the above-stated standards, the regulation of possession, custody and control of “dangerous weapons” by aliens has not been exclusively federally preempted.

The statute constitutes an appropriate exercise of the police power and thus does not infringe upon constitutional prohibitions.

Affirmed.

J. ALLAN CROCKETT, Retired Justice, concurs.

1 . In violation of U.C.A., 1953, 76-10-503.

2 . Defendant claims that he has a right to bear arms in order to defend himself. Inasmuch as the element of self-defense is not present in the instant case, we do not address that narrow issue, focusing rather on the facial constitutionality of the statute.

3 . 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939).

4 . Id. at p. 178, 59 S.Ct. at p. 818.

5 . United States v. Warin, 530 F.2d 103 (6th Cir. 1976), cert. den. 426 U.S. 948, 96 S.Ct. 3168, 49 L.Ed.2d 1185 (1976).

6 . 440 F.2d 144, 149 (6th Cir. 1971).

7 . The Tenth Amendment to the Constitution of the United States reserves to the states all powers not delegated to the United States, nor prohibited by it to the states.

8 . 84 Nev. 125, 129, 437 P.2d 868, 871 (1968); see also, People v. Garcia, 197 Colo. 550, 595 P.2d 228 (1979).

9 . Utah, 530 P.2d 813 (1974).

10 . Id. at pp. 814, 815.

11 . Defendant claims that the cases relied upon in Beorchia are distinguishable inasmuch as they do not involve statutes comparable to our own. As pointed out by the State, these cases were cited not in support of the “right to bear arms” argument, but the “police power” argument, discussed supra.

12 . See, e.g., Allen-Bradley Local v. Board, 315 U.S. 740, 62 S.Ct. 820, 86 L.Ed. 1154 (1942); Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581 (1941).

13 . 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963).

14 . In DeCanas v. Bica, 424 U.S. 351, 355, 96 S.Ct. 933, 936, 47 L.Ed.2d 43 (1976), the United States Supreme Court stated that “the Court has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se preempted by this constitutional power, whether latent or exercised .... Standing alone, the fact that aliens are the subject of a state statute does not render it a regulation of immigration, which is essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain.”