Originally published as 68 Temple L. Rev. 1177-1240 (1995).

A TALE OF THREE CITIES:

THE RIGHT TO BEAR
ARMS IN STATE SUPREME COURTS

David B. Kopel[*], Clayton E. Cramer[**], and Scott G. Hattrup[***]

Introduction

Among legal scholars, the Second Amendment to the United States Constitution[1] has received ever-increasing attention over the last decade.[2](p.1178)(p.1179) From being ignored as "the Embarrassing Second Amendment,"[3] the Constitution's right to keep and bear arms is now discussed by the most prestigious law journals[4] and by the most important constitutional law professors.[5] Yet the increased scholarly attention paid to the Second Amendment has not been matched by commensurately increased judicial attention.

The Supreme Court in the last five years has offered dicta twice which suggest that the Court shares the academy's view of the Second Amendment as an individual right.[6] Yet the number of cases (two) which have relied on the Second Amendment to declare a law unconstitutional is no higher today than it was twenty years ago.[7] During this period, the only law which was (p.1180)even (slightly) judicially jeopardized by the Second Amendment was the federal Gun-Free School Zones Act of 1990.[8] In declaring the law outside the scope of the Congressional power over interstate commerce,[9] the Fifth Circuit suggested in passing that the law might also be problematic on Second Amendment grounds.[10] The Supreme Court, affirming the Commerce Clause holding, did not mention the Second Amendment.[11]

The story of the right to keep and bear arms under state constitutions is just the opposite. From the 1820s until the present, courts have used state constitutional rights to arms to strike down various gun control laws. Altogether, twenty weapons laws have been declared void as a result of a state right to keep and bear arms.[12] Forty-three state constitutions contain some kind of right to bear arms provision, making the right to arms among the more ubiquitous civil liberties guaranteed by state constitutions.[13](p.1181)(p.1182)(p.1183)

Yet popular debate over gun control, which focuses intensely on the federal Second Amendment, largely neglects state constitutional provisions, provisions which are usually far more relevant to proposed state and local gun controls than the Second Amendment. Compared to the Second Amendment, legal scholarship has paid relatively little attention to state constitutional arms provisions.[14](p.1184)

This article attempts to redress the imbalance, at least a little. It examines three recent major state constitutional decisions dealing with the right to arms, in particular municipal bans or controls on so-called "assault weapons." In Oregon State Shooting Ass'n v. Multnomah County,[15] an Oregon county had enacted a relatively mild restriction on "assault weapons"; although the law did not place extra restrictions on possession or acquisition, it did ban the sale of "assault weapons" at a government facility which hosted gun shows, and also required "assault weapons" to be unloaded when transported in public.[16] When challenged in Oregon district court, the law was upheld.[17] The Oregon Court of Appeals voted to affirm the lower court, but was divided as to the rationale. The dissent would have upheld the law on the grounds that relatively minor restrictions on a small class of unusually dangerous firearms did not amount to an infringement of the right to arms.[18] The majority, however, went much further, holding that, under a historical test developed by the Oregon Supreme Court,[19] the Oregon constitutional right to arms did not even extend to the firearms in question.[20] The Oregon Supreme Court denied review.

In Robertson v. City of Denver,[21] the Colorado Supreme Court considered the constitutionality of a 1989 Denver City Council ordinance that was much more restrictive and covered a wider variety of firearms than did the ordinance at issue in Oregon.[22] Upon cross motions for summary judgment, the district court had declared the ordinance invalid under the Colorado Constitution, although the court opined that a much more narrowly drafted law would have been constitutional.[23] A 6-1 majority of the Colorado Supreme Court reversed and upheld the law.[24] The case has been remanded for trial on issues unrelated to this article.[25](p.1185)

Also in 1989, Cleveland enacted an ordinance[26] that covered even more firearms than the Denver ban.[27] Like the Denver law, the Cleveland law was a total ban on possession and sale, with an exception made for current owners who registered with the city. The majority of the Ohio Supreme Court held that the right to arms in Ohio was a fundamental individual right,[28] but the court affirmed the district court's grant of Cleveland's motion to dismiss, reasoning that no set of facts could prove the ordinance, or any part of it, unconstitutional.[29] The dissenters would have remanded the case for trial, to test the truth of the Cleveland ordinance's assertions that the banned guns were unusually dangerous and frequently used for criminal purposes.[30](p.1186)

In each of the cases the state Attorney General became involved, although in different ways. In Oregon, the Attorney General wrote an opinion stating that the restrictions violated the Oregon Constitution, but he did not participate further in the case.[31] In Ohio, Attorney General Lee Fisher, a member of the Board of Directors of Handgun Control, Inc., wrote amicus briefs in support of the Cleveland gun ban.[32] In Colorado, the Attorney General has the statutory right to intervene in all cases challenging the constitutionality of an ordinance.[33] After Denver was sued by private plaintiffs who thought the Denver gun ban unconstitutional, Attorney General Duane Woodard exercised his right to intervene, and joined the case on the side of the plaintiffs.[34]

In the three cases we will examine,[35] the majority opinions did not take the right to arms seriously, at least not in the sense of viewing the right as one entitled to judicial protection. Rather, the majority opinions not only upheld the laws in question, but also disabled the constitutional right itself. With the exception of a concurring opinion in the Colorado case,[36] none of these rights-disabling opinions had the intellectual honesty to acknowledge that the opinion's authors strongly disfavored the right to arms and wanted to relegate it to a second-class constitutional status. Rather, the opinions claimed to be nothing more than narrow technical legal analyses, although the analyses were often conducted in an intellectually dishonest manner.

Part I of this article sets forth the intellectual and historical background of state constitutional litigation involving the right to arms, paying special attention to different theoretical bases for determining which kinds of arms should receive constitutional protection. The remainder of the article examines issues which the different courts considered in interpreting their state constitutions' right to arms. Part II looks at history and original intent, with special reference to Oregon, where the Oregon Supreme Court has created a historical intent test for interpreting the Oregon Constitution's right to (p.1187)arms.[37] Part III examines the issue of whether the right to arms is a fundamental right, a question that was central to the Colorado decision.[38] Part IV analyzes the standard of review for arms right cases, a central issue in the Ohio decision.[39] Part V examines the fact-finding engaged in by all three state courts, and part VI discusses the constitutional legitimacy of armed self-defense. The conclusion places the cases in their broader social context and explains how, paradoxically, legal decisions which suggest that gun owners have no rights which a court is bound to respect result in the political strengthening of the gun rights movement.

I. Historical Interpretations of State Constitutional Rights to Arms

A. The Underlying Theories

American courts have generally interpreted the state constitutional arms guarantees according to two theories, which we call "civic republicanism" and "classical liberalism." Both theories recognize an individual's right to possess arms, but the right serves a different purpose under each theory.[40] Under the civic republicanism theory, guarantees of the right to keep and bear arms protect individual ownership of arms that would be appropriate to restraining tyrannical government, but do not necessarily protect a right to carry arms:(p.1188)

The section under consideration, in our bill of rights, was adopted in reference to these historical facts, and in this point of view its language is most appropriate and expressive. Its words are, "the free white men of this state have a right to keep and bear arms for their common defence." It, to be sure, asserts the right much more broadly than the statute of 1 William & Mary.[41] ... But, with us, every free white man is of suitable condition, and, therefore, every free white man may keep and bear arms. But to keep and bear arms for what? If the history of the subject had left in doubt the object for which the rights is secured, the words that are employed must completely remove that doubt. It is declared that they may keep and bear arms for their common defence .... The object, then, for which the right of keeping and bearing arms is secured is the defence of the public. The free white men may keep arms to protect the public liberty, to keep in awe those who are in power, and to maintain the supremacy of the laws and the constitution.[42]

Under this theory, reflected in early court interpretations of the Second Amendment, the right to keep and bear arms only protects arms appropriate to military purposes:

What then, is he protected in the right to keep and thus to use? Not every thing that may be useful for offense or defense, but what may properly be included or understood under the title of "arms," taken in connection with the fact that the citizen is to keep them, as a citizen. Such, then, as are found to make up the usual arms of the citizen of the country, and the use of which will properly train and render him efficient in defense of his own liberties, as well as of the State. Under this head, with a knowledge of the habits of our people, and of the arms in the use of which a soldier should be trained, we hold that the rifle, of all descriptions, the shot gun, the musket and repeater, are such arms, and that, under the Constitution, the right to keep such arms cannot be infringed or forbidden by the legislature.[43]

Similarly, the West Virginia Supreme Court limited protection to only certain types of arms:

In regard to the kind of arms referred to in the amendment, it must be held to refer to the weapons of warfare to be used by the militia, such as swords, guns, rifles, and muskets--arms to be used in defending the State and civil liberty--and not to pistols, bowie-knives, brass knuckles, billies, and such other weapons as are usually employed in brawls, street-fights, duels, and affrays, and are only habitually carried by bullies, blackguards, and desperadoes, to the terror of the community and the injury of the State.[44](p.1189)

Much of the case-law development of the civic republicanism theory took place in the South after the Civil War. The former slave states needed new mechanisms for keeping the newly freed slaves in their "proper" place in the economic and social structure.[45] At the same time, the state legislatures recognized that overtly racially discriminatory laws would run afoul of the Civil Rights Act of 1866 or the Fourteenth Amendment's guarantee of equal protection.[46] While historians must infer the legislature's intent in enacting these laws (as historians have done with respect to the contemporaneous vagrancy laws),[47] there are occasional direct statements of purpose for these new, more restrictive, gun control laws. For example:

The original Act of 1893 was passed when there was a great influx of negro laborers in this State drawn here for the purpose of working in turpentine and lumber camps. ... The statute was never intended to be applied to the white population and in practice has never been so applied.[48]

The civic republicanism theory provided a way to justify bans or restrictive regulation of concealable handguns, Bowie knives, and a variety of other defensive weapons that were not military arms.

The classical liberalism theory of the right to keep and bear arms protected any arms that could be used for self-defense. The theory has protected not only the right to possess arms at home, but has also struck down many statutes prohibiting the carrying of arms--as we will see when we examine the Oregon decisions of the 1980s.[49] The earliest of these decisions comes from the Kentucky Supreme Court, striking down a prohibition on the carrying of concealed weapons:

And can there be entertained a reasonable doubt but the provisions of the act import a restraint on the right of the citizens to bear arms? The court apprehends not. The right existed at the adoption of the constitution; it had then no limits short of the moral power of (p.1190)the citizens to exercise it, and it in fact consisted in nothing else but in the liberty of the citizens to bear arms .... For, in principle, there is no difference between a law prohibiting the wearing [of] concealed arms, and a law forbidding the wearing such as are exposed; and if the former be unconstitutional, the latter must be so likewise.[50]

In a more recent decision, the Idaho Supreme Court followed in the classical liberal tradition with respect to the Second Amendment when it interpreted the Idaho Constitution's similar provision:[51]

The second amendment to the federal constitution is in the following language: "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." Section 11, article 1, of the Idaho Constitution reads: "The people have the right to bear arms for their security and defense, but the legislature shall regulate the exercise of this right by law." Under these constitutional provisions, the legislature has no power to prohibit a citizen from bearing arms in any portion of the state of Idaho, whether within or without the corporate limits of cities, towns, and villages. The legislature may, as expressly provided in our state constitution, regulate the exercise of this right, but may not prohibit it. A statute prohibiting the carrying of concealed deadly weapons would be a proper exercise of the police power of the state. But the statute in question does not prohibit the carrying of weapons concealed, which is of itself a pernicious practice, but prohibits the carrying of them in any manner in cities, towns, and villages. We are compelled to hold this statute void.[52]

The two theories, civic republicanism and classical liberalism, are not necessarily two discrete boxes, with state cases falling neatly into one or the other. One reason for the doctrinal overlap is that the federal Second Amendment implicitly contains both theories, with civic republicanism in the subordinate clause ("a well-regulated militia"), and classical liberalism in the main clause ("the right of the people").[53] Thus, it should not be surprising that decisions would often use both theories. In Cockrum v. State,[54] the Texas Supreme Court explained why both the Second Amendment and the similar guarantee of the Texas Constitution[55] limited the authority of the state government to regulate the carrying of arms:

The object of the first clause [of the Second Amendment] cited, has reference to the perpetuation of free government, and is based on (p.1191)the idea, that the people cannot be effectually oppressed and enslaved, who are not first disarmed. The clause cited in [the Texas] bill of rights, has the same broad object in relation to the government, and in addition thereto, secures a personal right to the citizen. The right of a citizen to bear arms, in the lawful defence of himself or the State, is absolute. He does not derive it from the state government, but directly from the sovereign convention of the people that framed the state government. It is one of the "high powers" delegated directly to the citizen, and "is excepted out of the general powers of government." A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the law-making power.[56]

Likewise, a 1900 Ohio Supreme Court decision explained the Ohio right in terms of both political liberty and personal defense.[57]

B. What Arms Are Protected?

As Part II will discuss, the Oregon courts are the only state courts in recent decades to have developed a substantial body of case law regarding what types of weapons are the "arms" which the state constitution guarantees the right to possess and carry. The few other state court decisions on the subject suggest that a ban on semi-automatic firearms might be constitutionally problematic.[58] In some cases, courts offered the conclusion that a particular firearm was protected without great theoretical elaboration. For example, in a 1984 case,[59] the Washington Supreme court determined that a murderer's ownership of a Colt CAR-15 semiautomatic rifle (an "assault weapon" under current formulations) could not be used as a death penalty enhancement because to do so would unnecessarily "chill" or penalize the assertion of the constitutional right to bear arms.[60] The court found that the defendant's right to bear arms was directly implicated, and to hold otherwise would violate the Washington Constitution's mandate that "the right of the (p.1192)individual citizen to bear arms in defense of himself, or the state, shall not be impaired ...."[61] With similarly spare analysis, the Missouri Court of Appeals found "pistols and ammunition clips" to be protected because "every citizen has the right to keep and bear arms in defense of his home, person and property."[62]

A historical decision in a West Virginia case explained that a previous version of the state constitution had protected militia-type weapons, because "arms" included "the weapons of warfare to be used by the militia, such as swords, guns, rifles, and muskets--arms to be used in defending the State and civil liberty ...."[63] This militia-weapons test, commonly known as the "civilized warfare" test,[64] appears to have been adopted by the United States Supreme Court in the 1939 decision United States v. Miller.[65] Miller allowed an individual who was not a National Guard member to raise a right to bear arms claim, but held that only arms which were suitable for use in a militia were protected by the Second Amendment.[66]

In contrast, a Florida case found semiautomatic firearms to be protected, but not by inquiring into their suitability for militia use.[67] Instead, the court based its holding on a determination that such firearms were commonly used for protection by law-abiding people (a classical liberal formulation).

We, therefore, hold that the statute does not prohibit the ownership, custody and possession of weapons not concealed upon the person, which, although designed to shoot more than one shot semi-automatically, are commonly kept and used by law-abiding people for hunting purposes or for the protection of their persons and property, such as semi-automatic shotguns, semiautomatic pistols and rifles.[68]

A North Carolina decision[69] pointedly rejected the "civilized warfare" test (an implementation of the civic republicanism theory), even while affirming civic republicanism as the theoretical foundation of the right to arms:(p.1193)

To him [the ordinary private citizen] the rifle, the musket, the shotgun, and the pistol are about the only arms which he could be expected to "bear," and his right to do this is that which is guaranteed by the Constitution. To deprive him of bearing any of these arms is to infringe upon the right guaranteed to him by the Constitution.

It would be mockery to say that the Constitution intended to guarantee him the right to practice dropping bombs from a flying machine, to operate a cannon throwing missiles perhaps for a hundred miles or more, or to practice in the use of deadly gases .... The intention was to embrace the "arms," an acquaintance with whose use was necessary for their protection against the usurpation of illegal power--such as rifles, muskets, shotguns, swords, and pistols.[70]

With this historical case law background in mind, let us now turn to Oregon, where the courts have gone far beyond their twentieth-century peers in developing and applying historical tests which use both the civic republican and the classical liberal theories.

II. Historical Tests and the Right to Arms

A. Oregon Case Law in the 1980s

In the 1980s, the Oregon courts repeatedly struck down laws regulating the possession and carrying of a variety of weapons based on Article I, Section 27 of the Oregon Constitution, which provides that "the people shall have the right to bear arms for the defence of themselves, and the State."[71] The courts did so by developing a jurisprudence which looked at the historical evolution of weapons technology.

The first case was the 1980 decision State v. Kessler,[72] in which the Oregon Supreme Court declared void an Oregon statute[73] that prohibited "possession of a slugging weapon"--in this case, a billy club--in the defendant's home.[74] The court traced the ancestry of article I, section 27 back to the Indiana Constitution of 1816,[75] and from there to the state constitutions of Kentucky (1799)[76] and Ohio (1802),[77] thence backward through the Second Amendment and ultimately to the 1689 English Bill of Rights.[78] The court (p.1194)also cited the Michigan case of People v. Brown[79] for the proposition that concern about the dangers of standing armies was a major motivation behind the right to keep and bear arms, but that the right also reflected a personal self-defense requirement.[80]

The dispute about which arms are protected represents one of the significant differences between the classical liberalism and civic republicanism theories. For this reason, the court discussed which arms the Oregon Constitution protects, and concluded that

the term "arms" as used by the drafters of the constitutions probably was intended to include those weapons used by settlers for both personal and military defense. The term "arms" was not limited to firearms, but included several handcarried weapons commonly used for defense. The term "arms" would not have included cannon or other heavy ordnance not kept by militiamen or private citizens.[81]

Up to this point, the Oregon Supreme Court fell squarely in the classical liberal and civic republicanism traditions of judicial interpretation of the right to keep and bear arms. The court then drew a line between constitutionally protected arms and unprotected weapons:

The development of powerful explosives in the mid-nineteenth century, combined with the development of mass-produced metal parts, made possible the automatic weapons, explosives, and chemicals of modern warfare .... These advanced weapons of modern warfare have never been intended for personal possession and protection. When the constitutional drafters referred to an individual's "right to bear arms," the arms used by the militia and for personal protection were basically the same weapons. Modern weapons used exclusively by the military are not "arms" which are commonly possessed by individuals for defense, therefore, the term "arms" in the constitution does not include such weapons.[82]

Because the Oregon Constitution's provision included "defense of themselves,"[83] the court concluded that defensive arms, even though "unlikely to be used as a militia weapon," would include any weapon commonly used for personal defense.[84] However, the court also clearly stated that "automatic weapons" and "modern weapons used exclusively by the military are not 'arms'" protected by the Oregon Constitution.[85](p.1195)

We do not wish to criticize the Kessler decision for not taking the right to arms seriously. Kessler is a careful decision that works hard to protect the rights of people who wish to own firearms, while drawing a workable test that clearly excludes modern military weapons from ordinary civilian possession. However, as a historical matter, the court may have been wrong to imply that the drafters of the 1859 Constitution could not imagine the automatic weapons developed as a result of the mid-nineteenth century's industrial advances.[86] In fact, the mid-century technological advances did not lead to unanticipated developments in small arms. Instead, this era perfected concepts that were already well-known or under development. As early as 1663, Palmer presented a paper to the Royal Society describing the operating principle of the modern gas-operated semiautomatic firearm. Similarly, James Puckle's "A Portable Gun or Machine called a Defence," patented in May 1718, bears many similarities to the Gatling gun, the first of the practical machine guns.[87] The Puckle gun was ridiculed at the time as an impractical design, and called a scheme for separating investors from their money. But it demonstrates that the concept of machine guns existed, even if the metal working technology of the day was not capable of making the weapon.[88]

The court also erred in asserting that "advanced weapons of modern warfare" such as "automatic weapons," "have never been intended for personal possession and protection."[89] Machine guns were originally designed for military purposes. Nevertheless, from the beginning they had a civilian market: "As early as 1863 H. J. Raymond, the owner of the New York Times, had bought three Gatling guns to protect his offices against feared attacks by mobs of people protesting against the Conscription Act of March of that year, of which the Times had come out in support."[90]

Company goon squads used machine guns in suppressing strikes throughout the period between the Civil War and the 1930s--a disreputable use, but lawful under the laws of the day. The Thompson submachine gun provides the best example of the complex relationship between private and public ownership. Since the anticipated government contracts did not materialize, the "Tommy" guns were successfully marketed to private citizens for self-defense--especially in New York City, where the Sullivan Law had made it difficult to legally buy handguns.[91] Even today, private ownership of automatic (p.1196)weapons in the United States, while heavily regulated and highly taxed,[92] remains legal in most states.

The year after the Kessler decision, the Oregon Supreme Court decided in State v. Blocker that while the state legislature could prohibit the carrying of a concealed billy club, the statute in question[93] had prohibited possession of a billy club anywhere--and had made no distinction between concealed carry and open carry.[94] The court did acknowledge that some types of regulation of the bearing of arms were constitutional, but:

On the other hand, ORS 166.510, with which we are here concerned, is not, nor is it apparently intended to be, a restriction on the manner of possession or use of certain weapons. The statute is written as a total proscription of the mere possession of certain weapons, and that mere possession, insofar as a billy is concerned, is constitutionally protected.[95]

The legislature could prohibit carrying arms with criminal intent; it could prohibit carrying concealed arms; but unless some form of carry was protected, the statute would violate the constitutional protection of the right to bear arms for self-defense.[96]

In State v. Delgado, the Oregon Supreme Court faced a precursor to the "assault weapon" issue, a case involving switchblade knives.[97] The Kessler decision had recognized that "hand-carried weapons commonly used by individuals for personal defense" were constitutionally protected.[98] In Delgado, the state argued that switchblades were not commonly used for defense, and therefore fell outside the protection of the Oregon Constitution.[99]

The Oregon Supreme Court rejected the prosecution's evidence that switchblade knives are "almost exclusively the weapon of the thug and delinquent,"[100] calling the material "no more than impressionistic observations on (p.1197)the criminal use of switch-blades."[101] The court also dismissed the distinction between "offensive" and "defensive" arms:

More importantly, however, we are unpersuaded by the distinction which the state urges of "offensive" and "defensive" weapons. All hand-held weapons necessarily share both characteristics. A kitchen knife can as easily be raised in attack as in defense. The spring mechanism does not, instantly and irrevocably, convert the jackknife into an "offensive" weapon. Similarly, the clasp feature of the common jackknife does not mean that it is incapable of aggressive and violent purposes. It is not the design of the knife but the use to which it is put that determines its "offensive" or "defensive" character.[102]

The court then elaborated on the historical test that had first been announced in Kessler:

The appropriate inquiry in this case at bar is whether a kind of weapon, as modified by its modern design and function, is of the sort commonly used by individuals for personal defense during either the revolutionary and post-revolutionary era, or in 1859 when Oregon's constitution was adopted. In particular, it must be determined whether the drafters would have intended the word "arms" to include the switch-blade knife as a weapon commonly used by individuals for self defense.[103]

After a setting forth a history of pocket knives, fighting knives, sword-canes, and Bowie knives, the court found that the switch-blade knife was of the same "sort" as the knives in common use in 1859:

We are unconvinced by the state's argument that the switch-blade is so "substantially different from its historical antecedent" (the jackknife) that it could not have been within the contemplation of the constitutional drafters. They must have been aware that technological changes were occurring in weaponry as in tools generally. The format and efficiency of weaponry was proceeding apace. This was the period of development of the Gatling gun, breach loading rifles, metallic cartridges and repeating rifles. The addition of a spring to open the blade of a jackknife is hardly a more astonishing innovation than those just mentioned ....[104]

By acknowledging that "repeating rifles" were under development when Oregon adopted its 1859 Constitution, the court strongly implied that repeating rifles were constitutionally protected, a point which will be important when we examine the "assault weapon" decision.(p.1198)

While the Oregon Court of Appeals had been reversed in Kessler[105] and Delgado,[106] subsequent decisions of the intermediate court appeared to fall in line with the state supreme court's approach. In Barnett v. State, the court of appeals recognized the blackjack as an "arm" protected under the Oregon Constitution.[107] In State v. Smoot, the court of appeals upheld a conviction for concealed carry of a switchblade knife, since the statute in question restricted only the manner of carrying this constitutionally protected arm.[108] The court observed that "[a] person may possess and carry a switchblade as long as it is not concealed."[109]

Each of the Oregon decisions involved a weapon that has an unsavory image: a billy club, a switch-blade knife, and a blackjack. Yet the Oregon courts recognized that while these weapons were sometimes used by criminals, they could also be used for lawful defense. The next decision, however, showed that the Oregon Court of Appeals found certain weapons more unsavory than a switch-blade knife.

B. Oregon's Historical Test Applied to Semiautomatics

In 1990, Multnomah County (where Portland is located) passed Ordinance 646, a mild "assault weapon" regulatory law.[110] It prohibited possession for sale at the Exposition Center, a public facility where gun shows were often held. It also required "assault weapons" in a public place "to be unloaded, locked in a gun case and, if in a vehicle, placed in an inaccessible portion of the vehicle when being transported."[111] Oregon State Shooting Ass'n v. Multnomah County was filed seeking declaratory judgment against the county ordinance, as well as against a city ordinance charging a fee for background checks on gun purchasers.[112] Much of the decision relates to the question of whether state firearms laws preempted local regulation, and is uninteresting from the standpoint of what arms are constitutionally protected.[113]

The Oregon Supreme Court's Kessler decision acknowledged both the classical liberalism theory ("weapons used by settlers for ... personal ... (p.1199)defense") and civic republicanism theory ("military defense")[114] of the right to keep and bear arms. Kessler protects both militia weapons and personal defense weapons. The later decisions (Blocker, Delgado, Barnett, and Smoot) involved weapons that were not military weapons, and consequently those cases did not discuss the civic republicanism theory. Yet the Oregon Court of Appeals, in deciding Oregon State Shooting Ass'n, ignored the civic republicanism theory of the right to keep and bear arms. Kessler does not protect modern weapons of warfare, defined as "automatic weapons" and those "used exclusively by the military;" however, it does protect the sort of weapons used for militia purposes in 1859.[115] Ignoring the Kessler decision's test for which kinds of military arms were protected, the Oregon State Shooting Ass'n court looked exclusively to Delgado's test.[116] But of course Delgado had involved only the "personal protection" prong of Kessler, since Kessler's militia prong plainly did not protect switchblade knives, the weapon at issue. The court of appeals might as well have cited a decision stating that both commercial speech and political speech were protected, and then applied only a test for commercial speech from a later case.

In Oregon State Shooting Ass'n, the court found that, under the Delgado personal defense test, a weapon must satisfy three criteria: (1) although the weapon may subsequently have been modified, it must be "of the sort" in existence in the mid-nineteenth century; (2) the weapon must have been in common use; and (3) it must have been used for personal defense.[117] Let us now examine each of those criteria, as applied to semiautomatic firearms by the court of appeals.

1. "Of the sort"

The first of these criteria is nebulous, as the majority on the court of appeals observed.[118] The court of appeals held that the banned semiautomatic weapons were not of the same "form" as mid-nineteenth century weapons.[119] The court based its holding on an incorrect statement of fact, and a statement of "fact" that was merely an opinion. The incorrect statement of fact was that "the technology for automatic weapons did not exist until the twentieth century ...."[120] The opinion masquerading as fact was "the technology by which automatic weapons operate precludes a finding that a semiautomatic weapon is a 'counterpart' of a mid-nineteenth century repeating rifle."[121]

The court of appeals was simply wrong concerning the twentieth-century birth of automatic weapons. If we define "automatic firearm" in its narrowest (p.1200)sense, an "automatic" is a firearm in which, as long as the trigger is depressed, will reload and fire more rounds until the magazine (which contains the ammunition) is exhausted. The shooter does not need to press the trigger over and over. Rather, he need squeeze it only once, and until he releases, bullets will be loaded and fired automatically. Hiram Maxim demonstrated the first successful automatic weapon in 1884.[122]

More importantly, weapons of the same "sort"--as measured by their ability to fire bullets rapidly--were in use or under development at the time Oregon adopted its 1859 Constitution. While functional automatic weapons were not invented until 1884, functional machine guns had come decades earlier. Although the terms "machine gun" and "automatic" are sometimes used interchangeably, they are not identical. An automatic gun is a subset of machine guns. A "machine gun" is a firearm in which rounds are loaded and fired by the operation of machinery--even if human action is required to operate the machine.

As noted above, prototypes of machine guns were centuries old, although mass production of such weapons had proved to be beyond the skills of the time.[123] The practical machine gun era began in France in 1851, with the production of the Montigny Mitrailleuse, a multibarreled battery gun that fired several hundred rounds a minute. Its commercial production demonstrates that machine guns were not only a recognized concept, but operable devices when the Oregon Constitution was adopted. A major advance in machine gun technology came in 1861, when the Union Army bought small quantities of the Ager Gun, a crank-operated machine gun. Unlike most previous machine-gun models, which had needed as many barrels as there were rounds to fire, the Ager fired all of its rounds through a single barrel. The gun, also known as the Ager Coffee Mill, enjoyed only limited success, because the barrel would overheat.[124] But in 1862, Richard Gatling received patents for his "Gatling gun." The Gatling gun used six rotating barrels, thereby allowing very rapid fire while keeping the barrels from overheating. In contrast to the automatic weapons developed two decades later, the Gatling gun did not use the energy from the gun-powder explosion to perform the work of reloading and firing the gun. Instead, the Gatling gun was powered by a hand crank. Thus, the Gatling gun was not an automatic firearm, but it was a machine gun.[125] Gatling guns were used in small quantities during the Civil War, and sold heavily overseas in the 1860s and 1870s.

The court of appeals was therefore plainly wrong in its factual assertion about the development of firearms. If the case before the court of appeals had involved automatic weapons, the error would have been harmless, since Kessler had already stated that automatic weapons did not fall within the (p.1201)scope of the right to arms. If the question before the court of appeals was whether to regulate automatic weapons, based on the Kessler decision, the error about when automatic weapons were developed would be relatively minor, since Kessler stated that automatic weapons were not protected. The problem came when the court of appeals attempted to reason backward from the fact that automatics are not protected to prove that semiautomatics are not protected.

First, the court of appeals reiterated the trial court's claims that the named "assault weapons" "can be readily converted back into the fully automatic military configuration."[126] This factual finding was plainly incorrect, since federal law already regulates as an automatic any firearm which can be "readily converted" to automatic. As the United States Code states:

The term "machine-gun" means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts ... from which a machine-gun can be assembled if such parts are in the possession or under the control of a person.[127]

In other words, by long-standing federal law, if a gun can be readily converted into an automatic, it is an automatic. In 1982, the Bureau of Alcohol, Tobacco and Firearms ("BATF") used the above-quoted statute to classify as an automatic a readily-convertible semi-automatic.[128] The gun in question was the open-bolt MAC-10, which could be converted to automatic by simply inserting a paper clip in a particular place. The BATF ruled that any subsequently-manufactured MAC-10 would be classified as a machine gun. Out of deference to the reliance interests of consumers, the BATF did not retroactively classify already-sold open-bolt MAC-10s as machine guns. After the BATF ruling, the MAC-10 manufacturer abandoned the open-bolt design, and began producing other guns which were, according to the BATF's analysis, not readily convertible to automatic.

The BATF decision would have been a solid basis for the court of appeals to find that the Oregon right to arms does not protect pre-1982 MAC-10s. But instead, the court of appeals used the BATF ruling about the MAC-10 to assert that all guns affected by the ordinance were readily convertible.[129] This reasoning is implausible. If an agency has the job of separating the sheep from the goats, examines an entire herd of animals, and removes only a single sheep, the agency's action is evidence that the other animals are not sheep.(p.1202)

In State v. Delgado, the Oregon Supreme Court implied, in passing, that the Oregon Constitution protected nineteenth-century repeating rifles and their twentieth-century counterparts.[130] Thus, if semiautomatic firearms were counterparts of nineteenth-century repeating rifles, they would be protected by the right to arms. The court of appeals held that a semiautomatic weapon could not be "a 'counterpart' of a mid-nineteenth century repeating rifle"[131] because the operating mechanism for automatic and semiautomatic weapons did not exist in 1859.

To determine the meaning of "counterpart," the court of appeals stated that "counterpart" meant "to seem like a duplicate."[132] For something to be a duplicate would mean that the Constitution protected only exact replicas of 1859 firearms. "To seem like a duplicate" implies only firearms which could fool consumers into believing that the guns were 1859 replicas would be protected. If that is what the court of appeals meant, the court was rejecting the controlling rule of the state supreme court, which has already found that weapons (like switchblade knives) which are neither duplicates nor seem like duplicates of 1859 weapons are constitutionally protected.

Reading the court of appeal's "seems like a duplicate" language more generously, the court might be saying, "if it quacks like a duck and tastes like a duck, it should be treated as a duck. Even if it is a goose." If so, the court of appeals would have been stating some kind of functionality test: if a gun functions the same as an 1859 gun, then it would be protected.

Functionally, a semiautomatic rifle is not so different from the Volcanic (later Henry) rifle that was under development just before and after adoption of the 1859 Oregon Constitution. Patents were issued in 1849 for the predecessor to the Volcanic rifle, which in turn, achieved massive commercial success as the Henry, introduced in 1861.[133] Like a semiautomatic rifle, the Henry could be loaded and fired repeatedly, without reloading. Like a semiautomatic and every other common gun (and unlike an automatic or a machine gun), the Henry fired only one round per trigger press. To fire another round, the shooter would have to press the trigger again. One of the most comprehensive histories of repeating firearms clearly recognized the lineal relationship between the guns like the Henry and modern rifles: "These were the beginning of the long line of military repeating shoulder arms that has stretched toward us through the box magazine, bolt action, clip loading, and finally the automatic types of the present day ...."[134] Around 1860, the centuries-long prototype period of rapid-fire weapons was giving way to a period of mass production and refinement.[135]

The court of appeals opined that the 1859 Constitutional Convention would have found it "astonishing" that some of the "assault weapons" were (p.1203)capable of firing "20 rounds of ammunition [with] an effective range of 440 to 600 yards."[136] If so, the Convention's members had that opportunity for astonishment within two years after Oregon adopted the 1859 Constitution. Henry rifle advertising claimed that the rifle could fire sixty shots a minute.[137] The company boasted not only of the rifle's firepower, but of its ability to penetrate wood, and to kill at long ranges: "The penetration at 100 yards is 8 inches; at 400 yards 5 inches; and it carries with force sufficient to kill at 1,000 yards. A resolute man, armed with one of these Rifles, particularly if on horseback, CANNOT BE CAPTURED."[138] Even accounting for the exaggerations of advertising, the capabilities of the Henry rifle are similar to those of modern "assault weapons," and thus an accurate analysis of history suggests that modern semiautomatics may be a counterpart of the Henry rifle.

One ostensible difference between the banned "assault weapons" and weapons under development in the 1850s is the detachable magazine. Many of the weapons covered by the Multnomah County ordinance use detachable magazines, allowing rapid reloading. Although there were no detachable magazine firearms in the 1850s, the Colt revolver's cylinder was removable, allowing for relatively rapid reloading.[139] While not as fast as a modern detachable magazine weapon, the Colt revolver demonstrates that the functionality of repeating, rapidly reloadable firearms was known in 1859. Thus, one may argue that modern magazines are merely a refinement of the rapid reloading technology of the revolver. In any case, neither the Portland law nor the court of appeals referred to the detachable magazine as the distinction dividing "assault weapons" from those not regulated.[140]

2. Common Use

The second test listed by the court of appeals concerns "common use."[141] The Colt revolver was in common use throughout the West by the time Oregon adopted its 1859 Constitution. The Colt revolver combined two of the functions, repeating and rapid reloading, that are common to the weapons regulated by the Multnomah ordinance. The technological advantage of the Colt revolver over existing weapons was dramatic; one might even argue that they were the "assault weapons" of their time:(p.1204)

Unheard-of fire power was delivered by the new arms .... In fact, it is probable that since the late 1850's there has never been ... such a disparity in fire power between any two armed forces as there was between the groups armed with the Colt revolver and their opponents armed in the prevailing way of the time.[142]

No serious person could argue that the Colt revolvers were not commonly used. Instead, the court of appeals ignored the Colt's place in history, and focused on the Volcanic rifle.[143] The Volcanic was the direct predecessor of the Henry, which became a major commercial success in 1861. The court of appeals insisted that because the Volcanic itself was not commercially successful, there were no counterparts to "assault weapons" in "common use" in Oregon in 1859.[144]

3. Personal Defense

Finally, the third criterion used by the court of appeals in applying Delgado's three-part test was whether the weapon was used for personal defense.[145]

The Kessler decision made this distinction between "advanced weapons of modern warfare" and the weapons of personal self-defense.[146] In Kessler, the Oregon Supreme Court made it clear that weapons "used exclusively by the military" are not "arms" protected by the Oregon Constitution.[147] But what weapons are "used exclusively by the military"? The fact that Multnomah County found it necessary to regulate "assault weapons" suggests that there were a significant number of non-military owners of such weapons. Indeed, none of the semiautomatic firearms regulated by Multnomah County is used by any military force anywhere in the world, because the firearms are semiautomatic, and modern militaries use automatics. Semiautomatic firearms, which constitute about half of the current supply of handguns and a large fraction of the supply of rifles and shotguns, are frequently used for self-defense.[148]

C. Colorado History

In contrast to the Oregon cases, right to arms jurisprudence in Colorado has never looked to conditions surrounding the creation of the state constitution. Nor have the courts stated that evidence of original intent is irrelevant. The Colorado Statehood Constitution of 1876 included the arms guarantee as it still exists today.[149] The record of the constitutional convention includes (p.1205)votes on motions and amendments, but little reporting of debates (other than a debate over government assistance to parochial schools).[150] The only change made by the state convention to the original proposal was that the original proposal would have restricted the guarantee to "citizens," but the constitution broadened it to include every "person."[151] As in other Rocky Mountain states, the right to arms was considered fundamental and non-controversial:

The agreed-upon axioms of fundamental rights as guaranteed in the Constitution and the territorial organic acts stimulated little debate. The conventions accepted the free exercise of religion, speech, assembly, press, and petition. Delegates generally included the right to keep and bear arms although the militia often received a separate article .... A liberal construction and a complete enumeration of rights were prevalent features of the Rocky Mountain bills of rights.[152]

The Colorado arms guarantee was taken from the Missouri Constitution of 1875.[153] The chairman of the Bill of Rights committee explained in the Missouri constitutional convention:

This provision goes on and declares, that the right of every citizen to bear arms in support of his house, his person, and his property, when these are unlawfully threatened, shall never be questioned, and that he shall also have the right to bear arms when he is summoned legally or under authority of law to aid the civil processes or to defend the State.[154]

Moreover, the framers of the Missouri Constitution felt that the state legislature would need authorization to regulate the carrying of concealed weapons, since a Kentucky state court had held that "a provision in the Constitution declaring that the right of any citizen to bear arms shall not be questioned, prohibited the Legislature from preventing the wearing of concealed weapons."[155] Since explicit authorization was necessary to regulate the bearing of concealed weapons, obviously no legislative power existed to prohibit the keeping of arms. As to the scope of protected arms, a Missouri delegate explained the federal Second Amendment in part as a right to own and carry militia arms:(p.1206)

How is this to be construed? Simply a right of the citizen of a state to carry a pistol, sabre or musket? ... The right belongs to every state, not only that its citizens shall always be free to own arms & to carry arms, but also to put those citizens thus armed & equipped in an organization called militia.[156]

As the Colorado Supreme Court had noted in 1989, "The framers looked to other states as models for almost all of our constitutional provisions."[157] By 1876, the courts of several states had held that the right to keep arms protected possession of militia-type firearms.[158] Hornbook law in 1876 was set forth by Pomeroy's An Introduction to the Constitutional Law of the United States:

It may be remarked that whatever construction is given to these clauses, [the federal Bill of Rights] will also apply to the same or similar provisions in the state constitutions.

1. The right of the people to keep and bear arms. The object of this clause is to secure a well-armed militia .... But a militia would be useless unless the citizens were enabled to exercise themselves in the use of warlike weapons. To preserve this privilege, and to secure to the people the ability to oppose themselves in military force against the usurpations of government, as well as against enemies from without, that government is forbidden by any law or proceeding to invade or destroy the right to keep and bear arms.[159]

The Colorado framers and the people in 1876 were familiar with the latest repeating firearms and the continuing technological revolution in arms. For instance, the book Draft of a Constitution Published under the Direction of a Committee of Citizens of Colorado included an advertisement on its last page for the sale of "all kinds of latest improved breech loading guns, rifles, pistols, Colts and Smith & Wesson's revolvers, Sharp's, Wesson's, Winchester and Remington rifles ...."[160] The Volcanic Rifle, marketed as early as 1856, held twenty-five to thirty rounds. The Winchester Model 1866 (a successor to the Henry) was advertised in 1867 as firing "at a rate of one hundred and (p.1207)twenty shots per minute," and was recommended both for Army use and "for a home or sporting arm."[161]

Thus, the issue that was at least arguably a close call with regard to the Oregon Constitution of 1859 was well-settled by the time of the Colorado Constitution of 1876. Rapid fire, powerful firearms, suitable for both military and civilian use, were ubiquitous, and were commonly sold to civilians. Since the framers of the Colorado Constitution thought it necessary to grant specific authorization for regulation of concealed carry, it is implausible that the framers contemplated a legislative body having the authority to ban the type of rapid-fire military/civilian rifles which were common at the time the constitution was written.

Further evidence about original intent is supplied by the most important jurist in early Colorado law--E.T. Wells--a highly respected justice of the territorial and the state supreme court, a delegate to the constitutional convention, author of the leading nineteenth-century treatise on Colorado law, and a president of the Colorado Bar Association. In the Colorado State Supreme Court Library is a book owned by Wells titled The Constitution of the State of Colorado Adopted in Convention, March 14, 1876; Also the Address of the Convention to the People of Colorado.[162] Handwritten notes on the constitution appear on bluelined note paper before the text begins. Item 68 is: "The provision that the right to bear arms shall be [not called?] in question refers only to military arms: not dirks, bowie knives, etc." Along with this, Justice Wells cited a case from Texas, English v. State.[163] English v. State held that the Texas Constitution "protects only the right to 'keep' such 'arms' as are used for purposes of war."[164] In addition to this civic republicanism standard, the English court stated:

The word "arms" in the connection we find it in the constitution of the United States, refers to the arms of a militiaman or soldier, and the word is used in its military sense. The arms of the (p.1208)infantry soldier are the musket and bayonet; of cavalry and dragoons, the sabre, holster pistols and carbine ....[165]

All of this history makes it hard to believe that, under the original intent of the Colorado Constitution, semiautomatic firearms can be outlawed simply by dubbing them "military" and "rapid-fire." Obviously a demonstration could have been proffered (which may or may not have been factually persuasive) that modern semiautomatics are actually so much more powerful than the Henry's and Winchester-type rifles of the 1870s that the modern guns could not be within the contemplation of the framers. No such demonstration was attempted. While the U.S. Supreme Court has stated that proof that the framers of the Constitution would have found a particular law offensive will suffice to declare the law unconstitutional,[166] other courts have not been so deferential to original intent. For example, a court may view original intent as only one factor among several to be considered. Or a court may simply declare that it does not care what the original intent of the Constitution was. The Colorado Supreme Court, when faced with overwhelming, uncontested evidence of original intent, could have done the same thing. But the court did not do so. Instead, it simply ignored the entire issue of original intent as if it had never been raised.[167]

D. Evolving Technology

The Oregon Court of Appeals, in suggesting that the state constitution protects only guns which "seem like duplicates" of 1859 guns, seemed to reject the idea that constitutional rights evolve along with the technology to exercise them.

It is true that the authors of the Second Amendment and of the Colorado, Ohio, and Oregon constitutions never specifically intended to protect the right to own semi-automatics (since such guns did not exist), just as they never intended to protect the right to talk privately on a telephone or to broadcast news on a television (since telephones and televisions did not exist either). To assert that constitutional protections only extend to the technology in existence in 1791 (or 1859) would be to claim that the First Amendment only protects the right to write with quill pens and not with computers, and that the Fourth Amendment only protects the right to freedom from unreasonable searches in log cabins and not in homes made from high-tech synthetics. Does "freedom of the press" in the Constitution's First Amendment, and its state counterparts, apply only to printing presses "of the sort" in use in 1789? Are printing technologies that rely on lead type protected, while xerographic processes are not? Is a pamphlet distributed on floppy diskette or through electronic mail unprotected? Should the Supreme Court (p.1209)hold that presses capable of printing thousands of pages of libels per hour are not protected?

The Constitution does not protect particular physical objects, such as quill pens, muskets, or log cabins. Instead, the Constitution defines a relationship between individuals and the government that applies to every new technology. For example, in United States v. Katz,[168] the Court applied the privacy principle underlying the Fourth Amendment to prohibit warrantless eavesdropping on telephone calls made from a public phone booth--even though telephones had not been invented at the time of the Fourth Amendment.[169] Likewise, the principle underlying freedom of the press--that an unfettered press is an important check on secretive and abusive governments--remains the same whether a publisher uses a Franklin press to produce a hundred copies of a pamphlet, or laser printers to produce a hundred thousand.

In 1791, it was easy to start a newspaper. But today, starting a major paper requires large financial resources. The changed conditions provided a reason to uphold a law guaranteeing a right of reply to persons who were attacked in a newspaper. But the Supreme Court had no trouble rejecting changed conditions as a reason for retreating from the historical understanding of the First Amendment.[170]

It is true that an individual who misuses a semiautomatic today can shoot more people than could an individual misusing a musket 200 years ago.[171] Yet if greater harm were sufficient cause to invalidate a right, there would be little left to the Bill of Rights. Since the Constitution was adopted, virtually all of the harms that flow from constitutional rights have grown more severe. Today, if an irresponsible reporter betrays vital national secrets, the information may be in the enemy's headquarters in a few minutes, and may be used to kill American soldiers and allies a few minutes later. Such harm was not possible in an age when information traveled from America to Europe by sailing ship. Correspondingly, a libelous television program can ruin a person's reputation throughout the nation, a feat no single (p.1210)newspaper could have accomplished. Likewise, criminal enterprises have always existed, but the proliferation of communications and transportation technologies such as telephones and automobiles makes possible the existence of criminal organizations of vastly greater scale--and harm--than before.

In short, the proposition that the (arguably) greater dangers of semiautomatics justify a ban on modern firearms technology proves too much, since it allows a ban on many other modern objects used to exercise constitutional rights in harmful ways.

Virtually every freedom guaranteed in the Bill of Rights causes some damage to society. The authors of the Constitution knew that legislatures were inclined to focus too narrowly on short term harms: to think only about society's loss of security from criminals not caught because of search restrictions, and to forget the security gained by privacy and freedom from arbitrary searches. That is why the framers created a Bill of Rights--to put a check on the tendency of legislatures to erode essential rights for short-term gains.

Persons who find the above argument unpersuasive are not without a remedy. If the constitutional right to bear arms has become inappropriate for modern society because the people are so dangerous and the government is so trustworthy, then a constitutional amendment to abolish or limit the right may be proposed. But, it is not appropriate for courts to flout an existing constitutional guarantee, even if they personally think it is unimportant.[172] As Justice Frankfurter answered when the Supreme Court's self-incrimination decisions were assailed as medieval technicalism inconsistent with modern government's need to detect criminals and subversives: "If it be thought that the privilege is outmoded in the conditions of this modern age, then the thing to do is to take it out of the Constitution, not to whittle it down by the subtle encroachments of judicial opinion."[173]

Recognizing that the right to arms is not limited to technology in existence when the particular arms guarantee was written does not mean that appropriate laws may not deal with new technologies. For example, although sound trucks did not exist when the First Amendment was written, they have been held to be within the scope of the First Amendment, while subject to reasonable time, place, and manner regulation.[174](p.1211)

Accepting the evolution of firearms technology does not necessarily mean accepting the parade of horribles which typically ends with the question "what if everyone owned a nuclear weapon?" The right to arms is typically phrased in terms that refer to carrying the weapon (i.e. "keep and bear"). This suggests that the guarantee protects only arms which one can carry in the hands, and not tanks or jet fighters.

If we want to examine historical conditions in more detail, we can see that the personal arms which existed at the time of the Second Amendment (and the Colorado, Ohio, and Oregon constitutions) were all hand-carried weapons which could be precisely aimed at a particular target. Such weapons included firearms, edged weapons, and bows. In contrast to weapons which can be skillfully directed to single targets, weapons such as grenades or other explosives cannot be directed at a single target, but can kill everyone in the area. The historical reasoning would support constitutional protection for firearms accessories which make firearms even more accurate, such as scopes and laser sights, even though scope technology was not commercially applied to early firearms, and laser technology was not even contemplated. Likewise, should the weapon itself fire a precisely-directed laser, the laser gun itself would be protected. In contrast, a new weapon which fired projectiles indiscriminately (such as a device which fired dozens of arrows at once, at random angles) would not be protected, even though the projectile itself (an arrow) clearly is within the historical intent of the right to arms. In sum, as Indiana Supreme Court Chief Justice Emmert wrote:

Nor can it be maintained that the right to bear arms only protects the use of muskets, muzzle-loading rifles, shotguns and pistols, because they were the only ones used by the Colonists at the time. It might as well be argued that only a house of the architectural vintage of the Revolution would be protected against a present unreasonable search and seizure. Modern guns suitable for hunting and defense are within the protection of our Bill of Rights just the same as the owner of a modern ranch house type home is protected against unlawful searches.[175]

Finally, we should point out that the Oregon Court of Appeals could have upheld the Portland law with a much narrower, simpler rationale. In doing so, the court could have avoided making the radical, rights-eviscerating assertion that the Oregon Constitution protects only duplicates of the exact arms technology that existed in 1859.[176] Indeed, this is the approach of the Oregon dissent.[177](p.1212)

The Oregon State Shooting Ass'n concurring and dissenting opinion stated that the majority opinion "is an example of judicial manipulation of the constitution to meet a perceived localized social need."[178] "The listed weapons are the 'sort of' weapons commonly used for personal defense in 1859. They are rifles, pistols and shotguns."[179] The majority opinion "will come as a great shock to the many gun owners in Oregon who have possessed semi-automatic rifles and pistols for decades."[180] However, the ordinance did not unreasonably interfere with the right to bear arms because it is not "a complete ban on the possession of the listed firearms in public places"[181] and "does not interfere with a citizen's defense capacity in their homes or other private places."[182]

The authors of this article would not have upheld the Multnomah County law under any rationale, because we believe that the law did not have a close enough connection to public safety (in terms of the guns at issue being commonly used in crime, and the gun restrictions having any real effect on crime), and because we believe that the Portland restrictions were more onerous than the Oregon dissenters did. Nevertheless, the Oregon dissent represents a judicial approach which respects the right to keep and bear arms.

III. A Fundamental Right?

The "assault weapon" cases also implicated the issue of whether the right to arms is fundamental. This issue never really arose in Oregon, since the focus was on the supreme court's historical tests.[183] In Ohio, the court disposed of the issue quickly, noting that the right to arms was listed in the Ohio Bill of Rights along with other rights, all of them fundamental, and hence the right to arms was fundamental.[184] In the Colorado decision Robertson v. City of Denver,[185] the issue proved to be more complex. The complexity arose from a difference among the members of the Robertson court concerning the need to decide whether the right to keep and bear arms in Colorado was fundamental in order to resolve the case.[186]

The argument in favor of the right being considered fundamental ran as follows: all specific rights in the Colorado Bill of Rights are fundamental, (p.1213)since the article containing the Bill of Rights contains a prefatory clause declaring that these rights are "the principles upon which our government is founded . ..."[187]

The Colorado Constitution states the right to arms in forceful terms which are stronger than words used to delineate some other rights in Colorado Constitution:[188] "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."[189]

Prior to the "assault weapon" case, the Colorado Supreme Court had reviewed two cases involving restrictions on the right to arms by law-abiding persons. The first case, People v. Nakamura,[190] invalidated a state law prohibiting aliens from possessing a shotgun, rifle, or pistol:

[The state] cannot disarm any class of persons or deprive them of the right guaranteed under section 13, article 2 of the Constitution, to bear arms in defense of home, person, and property. The guaranty thus extended is meaningless if any person is denied the right to possess arms for such protection ....

[I]n so far as it denies the right of the unnaturalized foreign-born resident to keep and bear arms that may be used in defense of person or property, [the law] contravenes the constitutional guaranty and therefore is void. "The police power of a state cannot transcend the fundamental law, and cannot be exercised in such manner as to work a practical abrogation of its provisions."[191]

The Nakamura majority rejected the dissenting opinion's argument that a trial court may determine whether a specific firearm is possessed for the purpose of defense of home, person, or property.[192] When Nakamura was (p.1214)decided in 1936, the court was aware of the wide availability of semiautomatic firearms,[193] a fact which made the court's refusal to inquire as to whether a particular type of firearm was being possessed for defense of "home, person, and property" all the more significant for whether a legislative body could make a blanket declaration that certain types of semiautomatic firearms could not be possessed for defense. The Colorado Supreme Court never discussed this implication of Nakamura in Robertson.[194]

The major gun law case in Colorado was City of Lakewood v. Pillow,[195] a unanimous 1972 decision which invalidated a local ordinance which prohibited the possession of a revolver, pistol, shotgun or rifle, except within one's domicile, one's business, or at a target range, unless licensed by the city. Finding the ordinance to be "unconstitutionally overbroad," the court explained:

An analysis of the foregoing ordinance reveals 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 powers be reasonably classified as unlawful and thus, subject to criminal sanctions. As an example, we note 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.... Several of these activities are constitutionally protected. Colo. Const. art. II, § 13. Depending 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.

A governmental purpose to control or prevent certain activities, which may be constitutionally subject to state or municipal regulation under the police power, may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. Even though the governmental purpose may be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.[196](p.1215)

From the plaintiffs' viewpoint, Lakewood's observation that the restrictive gun law impermissibly served to "broadly stifle fundamental personal liberties" removed any doubt about whether the right to arms was fundamental.[197] In cases decided in later years, the Colorado Supreme Court continued to cite Lakewood and its "fundamental personal liberties" language.[198]

As a final argument, the plaintiffs pointed to U.S. Supreme Court language emphasizing that the courts have no authority to declare that some Bill of Rights freedoms "are in some way less 'fundamental' than" others: "Each establishes a norm of conduct which the Federal Government is bound to honor--to no greater or lesser extent than any other inscribed in the Constitution.... Moreover, we know of no principled basis on which to create a hierarchy of constitutional values ...."[199]

The City of Denver responded to the plaintiffs' and the Attorney General's fundamental rights argument. First, Denver asserted that not all Constitutional rights are fundamental.[200] Plaintiffs responded that the only rights ever declared non-fundamental were those not contained in the Bill of Rights.[201] Defendants suggested that the right to bear arms "is not essential to individual liberty."[202]

Defendants also argued that the supreme court in Lakewood had misapplied U.S. Supreme Court precedent on the First Amendment by using First Amendment overbreadth doctrine to analyze a gun restriction.[203] In an amicus brief, the Denver District Attorney stated that "it is important for this (p.1216)Court to limit [Lakewood v.] Pillow" and to provide "a contemporary construction" of that case.[204]

Defendants also pointed to several post-Lakewood cases in the 1970s where the supreme court had used the word "reasonable" in upholding restrictions on the possession of arms by convicted felons and drunks.[205] Plaintiffs argued that while restrictions on felons and drunks might be evaluated on a "reasonableness" standard, the lower standard had not been applied to law-abiding, responsible gun owners.[206](p.1217)

Denver also pointed to decisions stating the right to arms is not "absolute."[207] The plaintiffs conceded this but pointed out that being non-absolute is not the same as being non-fundamental.[208]

Although courts of sister states are not definitive interpreters of Colorado law, Lakewood had been prominently quoted by the courts of other states to invalidate firearms prohibitions, most notably for its statement that the right to arms is "fundamental."[209]

What did the Colorado Supreme Court do with the fundamental rights issue? The court could have followed Lakewood and its progeny and again stated that the right to arms was fundamental. Or the court could have followed the Denver District Attorney's suggestion and revisited the Lakewood decision. Or the court could have followed Denver's advice and ruled that, regardless of Lakewood's holding, subsequent decisions have construed the right to arms as non-fundamental. The court did none of these things.

In a concurring opinion in Robertson v. City of Denver, Justice Vollack (subsequently promoted to Chief Justice) stated that he considered the right to arms non-fundamental because it was, in his view, not an important part of (p.1218)liberty in contemporary society.[210] At least Justice Vollack announced what he was doing: lowering the right to arms to a level of rational basis review because he did not like it.[211]

In contrast, the majority opinion asserted that the Colorado Supreme Court had never decided whether the right to arms was fundamental--as if the court's repeated reference to "fundamental personal liberties" in Lakewood and its progeny had never been written. Indeed the court carefully avoided quoting the "fundamental personal liberties" language. Having sidestepped the very issue that all litigants treated as the heart of the case, the court then went on to apply rational basis review to the ordinance in question--effectively treating the right to arms as non-fundamental, but without having the honesty to say so.

IV. Standard of Review

In Arnold v. City of Cleveland,[212] history was no issue. The parties framed the issue in terms of fundamental rights and the Ohio Supreme Court settled that question at the outset, by declaring that the right to arms under the Ohio Constitution was fundamental.[213] In almost every other state, an infringement on a fundamental right is subjected to the strict scrutiny test. The Ohio Court, however, held that restrictions on fundamental rights are subject only to a reasonableness test.[214] Notably, the Ohio holding was not limited to arms rights cases, so any right under the Ohio Constitution will henceforth be protected only by reasonableness review. Section A of this part examines how the Ohio court chose a reasonableness test. Section B of this part discusses the standard of review in Colorado, while sections C and D argue that the Ohio, Oregon, and Colorado courts could (and should) have declared the ordinances unconstitutional, without even needing to consider a standard of review.

A. Ohio's Standard of Review

The result in Arnold was almost foreordained by the first paragraph:

In determining the constitutionality of an ordinance, we are mindful of the fundamental principle requiring courts to presume the constitutionality of lawfully enacted legislation. Univ. Hts. v. O'Leary, 429 N.E.2d 148, 152 (1981); and Hilton v. Toledo, 405 N.E.2d 1047, 1049 (1980). Further, the legislation being challenged will not be invalidated unless the challenger establishes that it is (p.1219)unconstitutional beyond a reasonable doubt. Id. See also Hale v. Columbus, 578 N.E.2d 881, 883 (1990).[215]

We will now turn to each of the three cases that formed the foundation for the Arnold standard of review; the cases are important not just to Arnold, but to how the Ohio court erred on all constitutional issues.

1. City of University Heights v. O'Leary[216]

O'Leary involved a challenge to municipal ordinances which prohibited individuals from purchasing, owning, possessing, or transporting handguns without an identification card.[217] The citizen charged with violating these ordinances was a private detective carrying several unloaded firearms in cases locked in the trunk of his automobile[218] in compliance with the state regulations for transporting firearms.[219] The portion of the decision cited in Arnold states:

A duly enacted municipal ordinance is presumed constitutional; the burden of establishing the unconstitutionality of an ordinance is upon the one challenging its validity. East Cleveland v. Palmer (1974), 40 Ohio App. 2d 10, 317 N.E.2d 246. Appellee has failed to sustain this burden. Sections 626.04(a) and 626.09(a) are not violative of due process. They are not vague. It is clear what is required: a firearm owner's identification card issued by either a non-resident's home municipality, or by the city of University Heights. The method for acquiring a card is clearly set forth in Chapter 626.[220]

In O'Leary the trial court and intermediate appellate court both ruled that the University Heights ordinances were unconstitutional because of overbreadth, vagueness, and unenforceability.[221] The appellate court additionally ruled the ordinances violative of due process because they penalized innocent conduct.[222] The Ohio Supreme Court reversed after very little discussion of Ohio law or the case itself. Its decision centered on a discussion of three federal cases and one from the District of Columbia: Lambert v. California,[223] United States v. Mancuso,[224] United States v. Freed,[225] and McIntosh v. Washington.[226]

In Lambert v. California the Supreme Court ruled unconstitutional a Los Angeles municipal ordinance which required convicted felons to register (p.1220)with the Chief of Police shortly after their arrival in the city.[227] The Court was persuaded in part by the passive nature of the defendant's activity.[228] Lambert's activity, remaining in Los Angeles, otherwise would be considered harmless and an exercise of her freedom of association and travel, both protected by the First Amendment. Her conduct would not ordinarily lead one to inquire about the lawfulness of the conduct. Additionally, the court found that registration of convicted felons is done primarily for the convenience of law enforcement agencies.[229]

In United States v. Mancuso[230] the U.S. Court of Appeals for the Second Circuit reversed the conviction of a defendant for violating 18 U.S.C. Section 1407, requiring convicted drug offenders to register with customs officials before and after leaving the country.[231] The Second Circuit relied on Lambert because of the passive nature of the defendant's conduct, a crime of omission.[232] Like the defendant in Lambert, Mancuso was exercising his freedom of association and travel. Both the district court and the Second Circuit considered Mancuso's lack of knowledge about the registration requirement in making their decisions.[233] The Second Circuit determined that knowledge of the registration requirement was required:

Since the district court specifically found that there was 'no knowledge' of the statute, we hold that Mancuso did not violate 18 U.S.C. 1407 .... On practical, purposive grounds, it is difficult to understand how elimination of the requirement of knowledge would have furthered the Congressional aim to make detection of illegal narcotics importation easier.... When there is no knowledge of the law's provisions, and no reasonable probability that knowledge might be obtained, no useful end is served by prosecuting the "violators."[234]

By imposing a knowledge requirement before penalizing a felon for exercising the right to travel, Mancuso seems to militate in favor of a knowledge requirement before penalizing a non-felon exercising the right to transport a firearm.

United States v. Freed[235] limited Lambert and Mancuso's passive activity defense. Defendant Freed was prosecuted for possession of unregistered (p.1221)hand grenades, in violation of the National Firearms Act.[236] Enacted in 1934, the Act restricts the possession or transfer of unregistered machine guns, short-barreled rifles or shotguns, and "destructive devices," including hand grenades.[237] Writing for the Court, Justice Douglas distinguished Lambert, using the rationale of Mancuso: "This is a regulatory measure in the interest of the public safety, which may well be premised on the theory that one would hardly be surprised to learn that possession of hand grenades is not an innocent act. They are highly dangerous offensive weapons ...."[238]

With the aforesaid cases forming the background, the Ohio Supreme Court in O'Leary mirrored the analysis of McIntosh v. Washington,[239] in which the District of Columbia Court of Appeals upheld the firearms registration requirement enacted by the District of Columbia in 1976. Both courts relied on Freed's "dangerous or deleterious devices" rationale. The conclusion of both the Ohio Supreme Court in O'Leary and the District of Columbia Court of Appeals in McIntosh was based on the premise that firearms are dangerous or deleterious devices.[240] The problem with this line of reasoning is that ownership and use of firearms--unlike ownership of hand grenades or heroin--is a fundamental right, as confirmed by the Ohio Supreme Court in Arnold.[241]

Traditionally, the items held to be "dangerous or deleterious devices" have not been items for which Congress wants to promote the regulated use.[242] Rather, as the Third Circuit noted in a similar case, "[Congress's] purpose was to prohibit this conduct, not to encourage registration prior to engaging in it."[243] So how did O'Leary find the innocent possession of unloaded firearms to be "dangerous or deleterious"?

The core of the O'Leary decision rests on a three-part test derived from the Lambert factors:

First, mere passive conduct is not involved here. To violate the law, one must acquire possession of a firearm. United States v. Crow (C.A. 9, 1971), 439 F.2d 1193, 1196, vacated on other grounds, 404 U.S. 1009, 92 S. Ct. 687, 30 L.Ed.2d 657 (1972); State v. Drummonds (1975), 43 Ohio App. 2d 187, 188-189, 334 N.E.2d 538. Second, the (p.1222)regulated conduct here, possession of a firearm, is one which by its nature suggests the possibility of governmental regulation. United States v. Freed, supra; United States v. Weiler, supra. Third, the gun registration ordinance involved here is not designed solely for the convenience of law enforcement agencies. The purpose of the ordinance is to protect the citizens of University Heights from violence arising from handguns and other firearms by keeping firearms out of the hands of unfit persons, that is, those ineligible to receive a Restricted Weapons Owner's Identification Card. See Mosher v. Dayton (1976), 48 Ohio St. 2d 243, 358 N.E.2d 540; State v. Drummonds, supra; Photos v. Toledo (1969), 19 Ohio Misc. 147, 250 N.E.2d 916.[244]

The first proposition, that acquiring a gun is not passive, was clearly true. The third proposition, that the gun registration ordinance was not solely for the convenience of the government, was at least arguably true.[245] The second proposition, however, revealed the Ohio court's hostility to the right to keep and bear arms. As noted above, a case involving grenades and other unusual destructive devices (not covered by the right to arms) is no precedent for ordinary firearms being considered "dangerous or deleterious."[246] The other cases relied on by the Ohio court, United States v. Crow,[247] State v. Drummonds,[248] and United States v. Weiler,[249] all involved convicted felons. Crow was convicted of murder ten years before his firearms offense.[250] Drummonds was convicted of stabbing with intent to kill or wound before he was charged with the later firearms offense.[251] A court citing these cases for the result that gun owners are presumed to know they may need to register their weapons with any locality they pass through is equating all gun owners with convicted murderers.

The O'Leary decision was written before Arnold announced that the right to arms was fundamental in Ohio. Given that announcement, it was incongruous for Arnold to rely on O'Leary, which is based on the proposition that the owning of firearms is "dangerous or deleterious."[252] In early 1994, the United States Supreme Court announced a decision which made (p.1223)O'Leary and Arnold all the more untenable.[253] A gun owner possessed a semiautomatic Colt rifle which sometimes malfunctioned by firing two shots at once.[254] The two-shot malfunction made the gun (by federal definition) a "machine gun," since one trigger press would sometimes fire two bullets.[255] The gun owner was prosecuted for possessing an unregistered machine gun.[256] The government conceded the defendant's lack of knowledge, but argued that as a possessor of a semiautomatic rifle, he should have been on notice that he owned an object which might be subject to regulation.[257] In Staples v. United States, the Court held that ownership of a semiautomatic firearm was not the type of activity that should put one on notice that one may be subject to regulation.[258]

Having equated gun owners with convicted murderers and guns with grenades, O'Leary relied upon City of East Cleveland v. Palmer[259] to establish its standard of review for municipal ordinances.[260] Palmer was a challenge to a $75 parking ticket for violation of a municipal ordinance prohibiting parking along the city streets for more than five hours at night.[261] Parking on the street at night is hardly a fundamental right, but the Ohio Supreme Court seems to equate gun control measures with parking violations in using Palmer as its standard of review.

2. Hilton v. City of Toledo[262]

In announcing its standard of review, the Arnold court also relied on Hilton, a case involving a challenge to a municipal ordinance prohibiting certain advertising signs.[263] The ordinance prohibited flashing portable advertising signs, and limited use of any portable sign to a total of 15 days in one location;[264] however, it allowed the use of permanent electric signs.[265] In approving this ordinance as a valid exercise of the municipal police power to (p.1224)regulate commercial activity,[266] the Ohio Supreme Court applied the following standard of review:

An enactment of the legislative body of a municipality is entitled to a presumption of constitutionality. The presumption may be rebutted by showing that the ordinance lacks a real or substantial relationship to the public health, safety, morals or general welfare, or that it is unreasonable or arbitrary .... Furthermore, it is incumbent upon the party alleging unconstitutionality to bear the burden of proof, and to establish his assertion beyond a reasonable doubt.[267]

This passage from Hilton is a source of the standard of review used in Arnold.[268] Conspicuously absent from the Arnold test is the second sentence from Hilton, which explains how the presumption of constitutionality may be rebutted.[269] The full test for a review of a municipal ordinance, as announced in Hilton, is substantially similar to the test employed by the court in Cincinnati v. Correll,[270] another case cited by the Arnold court.[271] More of this comparison will be made later, but it suffices to say that the Arnold court edited the Correll test to remove its full effect.[272] Both tests require that the challenged ordinance must have a "real or substantial relationship" to the public health and welfare.

Hilton's test for review is derived from several Ohio cases, which tested the constitutionality of municipal ordinances, dating back to 1918: City of Dayton v. S.S. Kresge Co.,[273] Alsenas v. City of Brecksville,[274] State v. Renalist, (p.1225)Inc.,[275] State ex rel. Ohio Hair Products Co. v. Rendigs,[276] City of East Cleveland v. Palmer,[277] and City of Cincinnati v. Criterion Advertising Company.[278] All cases cited, except Renalist, were constitutional challenges to municipal ordinances. The challenged ordinances limited commercial conduct or practices. In most cases, no freedom of speech issue was even raised. To the extent that the right to speech did appear, it was in the context of commercial speech which (whether rightly or wrongly) is entitled to significantly less judicial protection than "core" First Amendment speech.[279]

3. Hale v. City of Columbus[280]

Arnold cited Hale v. City of Columbus[281] for the proposition that a constitutional challenge to a municipal ordinance must meet a burden of proof "beyond a reasonable doubt" in order to prove unconstitutionality.[282] Once (p.1226)again, as shown by the edited test from Hilton, the court has engaged in selective quotation to achieve its desired end. When the full test is considered, the minimum rationality standard applied in Arnold appears incomplete. The full paragraph from Hale reads as follows:

Legislative acts enjoy a strong presumption of constitutionality and any challenge must establish beyond a reasonable doubt that the enactment is unconstitutional .... The person challenging the legislation must show evidence that the legislation lacks the requisite nexus to its stated purpose.... Thus, the issue in the facts before this court is, whether the ordinance bears a real and substantial relation to a proper subject of municipal police power under Section 3, Article XVIII of the Ohio Constitution.[283]

None of the cases cited in Hale to develop the standard of review involved constitutionally protected activity. Instead, the cases involved a public interest group's complaint that the legislature had not controlled utility advertising strictly enough,[284] a complaint that the legislature should not have given money to a veterans' group,[285] a challenge to an ordinance requiring the use of rubber tires on city streets,[286] and a challenge to a law banning pinball machines.[287](p.1227)

4. Arnold's Balancing Test

The Arnold court quoted a passage from Cincinnati v. Correll:[288]

Laws or ordinances passed by virtue of the police power which limit or abrogate constitutionally guaranteed rights must not be arbitrary, discriminatory, capricious or unreasonable and must bear a real and substantial relation to the object sought to be obtained, namely, the health, safety, morals or general welfare of the public.[289]

In quoting this passage, the Arnold court left out the paragraph from Correll which states: "The Courts of this country have been extremely zealous in preventing the constitutional rights of citizens being frittered away by regulations passed by virtue of the police power."[290]

"Therefore," the unzealous Ohio Supreme Court announced, "the test is one of reasonableness."[291] But, of course, "reasonableness" was only one part of the test which the Arnold court itself quoted. What about whether there is "a real and substantial relation to the object sought to be obtained?"[292] It should not be asking too much for a court that announces a test on one page to actually use the test on the next page.

After examining the Arnold court's misapplication of municipal cases involving commercial law to a fundamental rights case, the reader may wonder why the Ohio court did not follow precedents which required a strict scrutiny standard of review for infringements of state constitutional rights. The answer is that in Ohio, there were no such cases. The Ohio dissent, which argued for a strict scrutiny standard, could cite not cite any Ohio precedents.[293] Instead, it cited cases from other states, including the City of Lakewood v. Pillow decision from Colorado, a case consistently interpreted, until the 1994 Colorado Supreme Court decision, to mean that infringements on the state right to arms of law-abiding citizens should be subjected to rigorous judicial scrutiny.[294](p.1228)

B. Narrow Tailoring and Overbreadth

As noted above, the Arnold court quoted a two-part test for its low-level review of the Cleveland ordinance, but applied only the first part of the test.[295] Similarly, in Lakewood, the Colorado Supreme Court, in announcing that it could rely on tests from prior cases without needing to decide if the right to arms was fundamental, used only a single component of the tests in the prior cases: whether the ordinance was within "the police power."[296] The Colorado court carefully ignored language from its earlier cases which dictated that a law could not be within the police power if it was "overbroad" or not "narrowly tailored."[297] Relying on Lakewood, Colorado courts had repeatedly used the overbreadth doctrine to strike down laws, even when fundamental rights were not involved.[298] Additionally, courts from other states had cited Lakewood while applying the overbreadth analysis to gun restrictions.[299] Yet, in Robertson, the supreme court ruled the trial court was wrong, as a matter of law, to have applied overbreadth analysis to the Denver gun ban.[300] However, prohibiting lawful acquisition of a constitutionally-protected object simply because some criminals might misuse it had already been declared unconstitutional.[301]

A requirement for narrow tailoring had also been articulated in Lakewood.[302] Instead of implementing a blanket gun ban, Denver could have more vigorously enforced existing laws involving criminal misuse of firearms, or passed a licensing law designed to allow law-abiding citizens to obtain semi-automatic firearms, while preventing criminals from obtaining the weapons. Again, the district court's use of narrow tailoring analysis was (p.1229)ruled erroneous,[303] even though the district court had merely been following the Colorado Supreme Court's 1972 Lakewood decision.[304]

C. Bans as Illegitimate Per Se

Ohio Justice Hoffman argued in dissent that "a stricter standard must be utilized when the legislation places restrictions upon fundamental rights, particularly where the legislation prescribes an outright prohibition of possession as opposed to mere regulation of possession."[305] We would go further still than Justice Hoffman. We would argue that the entire debate over standard of review should have been superfluous, for a gun prohibition applied to law-abiding citizens could never be constitutional--even if it could pass strict scrutiny.

In cases implicating the First Amendment (entitled to no more, and no less protection than the Second Amendment), it is well-established that no amount of demonstrated harm may justify banning speech.[306] In a due process case involving vagrants, an earlier Colorado Supreme Court had affirmed that no law enforcement necessity could justify an infringement of rights.[307]

It is true that a gun prohibition ordinance may be an attempt to serve the compelling state interest in reducing violence. But also compelling is the interest in suppressing Nazi speech, for what Nazi speech led to in Germany, it might lead to in America. In addition, there is a well-developed compelling state interest in censorship of television based on numerous studies showing that prolonged exposure of children to television leads to increased homicide and other violent crime.[308] Another compelling state interest could be asserted (p.1230)in altering the racial balance of a student body or increasing the number of lawyers of a particular racial or ethnic group.

Yet courts will invalidate such laws, "not as insubstantial but as facially invalid."[309] No compelling state interest can support the banning of writings or movies because they might legitimize rape or adultery, because "the First Amendment's basic guarantee is of freedom to advocate ideas."[310]

D. Explicitly Stated Anti-constitutional Legislative Purpose

Suppose that a restrictive municipal zoning ordinance declared that its purpose was: "1. To reduce traffic congestion; 2. To reduce fire hazards associated with excessive density; and 3. To prevent racial minorities from living in the city." While the first two purposes of the ordinance are generally considered legitimate zoning purposes, the third purpose (racial discrimination) is plainly illegitimate. The existence of the illegitimate motive would be sufficient (even if the ordinance were otherwise flawless) for the ordinance to be declared unconstitutional.[311]

While illegitimate motivations usually must be ferreted out through litigation, the Portland,[312] Cleveland,[313] and Denver[314] city council majorities (p.1231)believed so deeply in their illegitimate motives that they placed them in black and white at the beginning of the statutes. If the right to arms were being treated like the right to freedom of speech or the right to be free of state-sponsored racial discrimination, the Portland, Cleveland, and Denver ordinances would have been instantly struck down on the basis of illegitimate motivation, without need for further inquiry.

The Cleveland City Council asserted that the guns it was banning were made for "anti-personnel" purposes, while the guns which it was not banning "are primarily designed and intended for hunting, target practice, or other legitimate sports or recreational activities."[315] Likewise, "assault weapons" were banned because the Denver City Council found they were "designed primarily for military or antipersonnel use,"[316] and were regulated in Portland because their anti-personnel purpose outweighed "any function as a legitimate sports or recreational firearm."[317] The Ohio, Oregon and Colorado constitutions explicitly guarantee the right to bear arms for personal protection, and for defense of the state--two firearms uses which are "non-sporting" (p.1232)and "anti-personnel."[318] Although the city councils had, in effect, openly declared their illegitimate purpose (restricting of guns used for constitutionally protected anti-personnel purposes), neither the Oregon, Ohio nor Colorado courts considered for a moment that an explicitly stated, anti-constitutional purpose might invalidate the ordinance.[319]

The Colorado Constitution, article II, section 3 states: "All persons have certain natural, essential and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; of ... protecting property; and of seeking and obtaining their safety." The Denver Ordinance allows persons who owned "assault weapons" before the effective date of the Ordinance to retain their guns by registering them with the police.[320] But these "grandfathered" registrants were forbidden to use their registered guns for self-defense, even against a deadly attack in their own home. The lower court declared the self-defense prohibition unconstitutional; while requiring the registration of certain guns might be permissible, forbidding the use of a lawfully owned gun for protection was not.[321]

On appeal, even the Center to Prevent Handgun Violence (the legal arm of the lobby which helped create the whole "assault weapon" prohibition issue) in its amicus brief did not attempt to justify a ban on use of a registered firearm in lawful self-defense; the Center argued instead that the ordinance had been misinterpreted.[322]

Yet the Colorado Supreme Court, after ruling that "assault weapons" (as broadly defined by the City Council) could be banned, also concluded that the Council could ban the use of lawfully registered, grandfathered guns in lawful self-defense.[323] While Denver had offered various reasons for wanting (p.1233)to control the "proliferation" of "assault weapons," the city attorney during the course of the case offered no reason for, and did not attempt to defend, the ban on use of lawfully owned guns for protection. A court which upholds a gun law which not even the gun prohibition lobby and its allies will defend is, it might be suggested, not much concerned about protecting the right to arms.

V. Fact-Finding

In Ohio, the Arnold court found that a fundamental interest was at stake, and then applied a "reasonableness" test to the infringing ordinance.[324] In Colorado, the Robertson court acted as if the fundamental rights issue were undecided, and then proceeded to apply a reasonableness test.[325] Even if we assume that infringements on rights contained in the Bill of Rights should be subject only to a test of "reasonableness," the premise of any "test" is that some things will pass the test, and others will fail. But as interpreted by the Colorado and Ohio courts, the "reasonableness" test is foreordained never to find unreasonable any infringement or prohibition on the right to arms.

The Ohio case came before the supreme court following Cleveland's successful motion to dismiss, a motion which precluded any discovery.[326] The Colorado case had arisen out of cross motions for summary judgement, following discovery.[327] In either case, the trial court was required (and the appellate courts were required to make sure that the trial courts did so) to give every benefit of doubt to the non-moving party, as to which facts would be proven at trial.[328] The Arnold appeal, besides involving constitutional issues, also raised the propriety of the trial court's sua sponte conversion of the motion to dismiss into a motion for summary judgement, and then granting the motion before any discovery could be had.[329] The Ohio Supreme Court found any procedural error to be irrelevant, since, "we believe that appellants can prove no set of facts entitling them to relief."[330]

The factual showing that the Cleveland plaintiffs wanted to make in the trial court was offered in part through extensive exhibits of legal and criminological scholarship, and governmental crime statistics, in appendices to the appellate motions.[331] The Denver plaintiffs and the Attorney General had the opportunity to make a much more extensive showing, with exhibits to the summary judgment motion. Thus, while the Cleveland litigants complained (p.1234)that the Cleveland government refused to obey public information laws requiring disclosure of the government's data about the (non-)use of "assault weapons" in Cleveland crime,[332] the Colorado litigants were able to discover Denver's data.

At a hearing before the Denver City Council, Police Chief Zavaras testified that "assault weapons are becoming the weapons of choice for drug traffickers and other criminals."[333] The City Council passed a gun ban which made the specific finding 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."[334] During discovery, the Colorado Attorney General and the private plaintiffs inventoried every single firearm in Denver police custody. The ordinance covered none of the 232 shotguns, nine of the 282 rifles (3.2%), and eight of the 1,248 handguns (0.6%) in the police inventory.[335] Of the fourteen banned guns in Denver police custody, one had been used in a crime of violence. Half had been seized from persons who were never charged with any offense.[336]

Consistent with the Denver data, the plaintiffs in both the Denver and Cleveland cases presented police data from many other cities to support the proposition that "assault weapons" were almost never used in crime.[337] The Ohio and Colorado majorities specifically found this evidence irrelevant.[338] (p.1235)In other words, the city governments could outlaw firearms which had not been crime problems and which, it could be proven,[339] posed no danger of becoming a crime problem. The city governments could outlaw something that might become a problem, whether or not credible evidence suggested that it might. In a free press analogy, Playboy and other non-obscene erotic literature could be outlawed because they might at some future point cause rape, even if it could be proven that they have never caused rape, and there is no evidence that they will do so in the future.[340]

Even if we presume that a government may ban unusually dangerous firearms, it remains to be proven whether the particular firearms banned are in fact unusually dangerous. Yet in upholding the grant of the motion to dismiss the plaintiffs' case, the Ohio Supreme Court foreclosed the plaintiffs from introducing any evidence as to whether the (very large) number of firearms banned by Cleveland were in fact more powerful, more likely to be used in crime, or more dangerous in any way at all. The Cleveland City Council had avowed its intent not to ban "sporting" firearms, but only "antipersonnel" ones.[341] Yet the Ohio majority saw no need for a factual hearing as to whether any one of the numerous guns banned by Cleveland could be proven, perhaps beyond a reasonable doubt, to be in fact a "sporting" gun rather than an "antipersonnel" one.[342]

In the first paragraph of the Arnold opinion, the majority announced that challengers to a municipal ordinance must prove "beyond a reasonable (p.1236)doubt" that the ordinance is unconstitutional.[343] Articulating a "reasonable doubt" standard of proof implies that proof can be made. But what kind of proof can be made when the government's assertions when enacting the ordinance are taken as the irrefutable last word, against which no evidence can matter?[344]

Thus, as the Ohio dissent complained:

Whether the weapons banned by the Cleveland ordinance are primarily antipersonnel or whether they are equally suitable for defensive or sporting purposes has yet to be demonstrated .... The mere declaration by Cleveland Council that it finds the primary purpose of assault weapons to be antipersonnel and any civilian application or use of those weapons is merely incidental to such primary antipersonnel purpose ... is, standing alone, insufficient to satisfy the government's burden when such legislation infringes upon a fundamental right .... The challenger must be given an opportunity to demonstrate otherwise.[345](p.1237)

The Colorado majority took the same approach as the Ohio majority. The Denver City Council had proclaimed that its motive in enacting the ordinance was fighting crime.[346] That proclamation was sufficient to prove to the court that the gun prohibition was within "the police power."

In Oregon, the majority had, in its finding that "assault weapons" are not protected by the Oregon right to arms, relied heavily on the finding that some semi-automatic "assault weapons" have evolved from military firearms.[347] Yet, as the dissent pointed out, the majority refused to "separately analyze those listed firearms that did not originate as military weapons."[348] Likewise, the majority worked hard to prove that semiautomatic technology was unimaginable to the authors of the 1859 Oregon Constitution; yet one of the guns which the majority discussed in a footnote (a shotgun) uses a revolver mechanism (invented in the 1840s, and widespread immediately thereafter) and is not a semiautomatic.[349] Yet the majority did not discuss how a theory about semi-automatic guns which are derivative of military guns could be applied to eliminate constitutional protection for a revolver-action gun which has no military design in its past.

"Facts are stubborn things," John Adams told the jury during the Boston Massacre trial.[350] "Facts are stupid things," President Reagan said in a malapropism.[351] "Facts are nothing at all," the Ohio and Colorado Supreme Court majorities have stated, when the rights of gun owners are involved.

Conclusion

Not every state court in recent years has treated gun owners as having no rights that local governments were bound to respect as long as guns were not completely prohibited. For example, the same year that Portland, Denver, and Cleveland passed "assault weapon" laws, Atlanta did as well. A lawsuit soon followed, and not long thereafter the court granted the plaintiffs' motion for a temporary restraining order.[352] In a brief ruling, the court held that the Atlanta prohibition conflicted with state law[353] (and in dicta said that the ban would also violate the state constitutional right to arms). The City of Atlanta did not appeal the decision.

"Nothing is unsayable" in constitutional language, suggested Sanford Levinson, as he compared the Death of Constitutionalism (the notion that the Constitution is a text with bounded meaning), which he called the most important development in modern legal theory, to the Death of God, the (p.1238)most important development in modern theological theory.[354] The three cases from Colorado, Ohio, and Oregon represent an apogee of the Death of Constitutionalism, for they are grounded in neither the text of the relevant state constitution, prior precedent in the relevant state court, the intent of the authors of the constitutions, nor on any factual or logical inquiry. To the contrary, the decisions are an application of Justice Powell's rueful observation that "Constitutional law is what the Court says it is."[355] Yet only Justice Vollack in Colorado was forthright enough to admit that the justices would, in effect, rip the right to bear arms out of the Constitution because they did not like it.

Yet even as professors of theology proclaimed "the death of God" and their views swept through the academy, most of the American populace appears to think reports of the death highly exaggerated.[356] Indeed the religions which most determinedly reject the academy's world view (such as Pentacostalism) are the ones that are experiencing the most rapid growth.[357]

Something similar is happening with regard to the death of Constitutionalism. The 1993-1994 Ohio, Oregon, and Colorado decisions occurred during the period when the right to bear arms was under the greatest attack in history. The national media confidently proclaimed that the once-mighty National Rifle Association was impotent. Congress enacted, and President Clinton enthusiastically signed, the Brady Bill[358] and then a federal "assault weapon" ban as they read polls which suggested that the controls were overwhelmingly supported by the public.

But something happened on the way to the death of the right to bear arms. The Brady Bill's requirement for local law enforcement to perform a mandatory background check has been held unconstitutional by some courts as a violation of the Tenth Amendment.[359]

Many gun owners, regardless of the courts' interpretation of the laws, apparently believe that the "assault weapon" bans are unconstitutional, and are behaving accordingly. While Cleveland and Denver mandated that existing owners of "assault weapons" register themselves and their guns with the police, only about one percent complied, a rate similar to compliance (p.1239)with other gun registration laws.[360] After Congress passed a national "assault weapon" ban in the summer of 1994, the gun-owner backlash against it was credited by President Clinton, and other commentators, as responsible for delivering the House of Representatives to the Republicans.[361]

In Ohio, Attorney General Fisher was defeated for re-election.[362] Four years before he had won a close victory, in part because many gun rights activists had no idea what he stood for. Four years later, they knew, and they worked very hard to deny him re-election.[363]

In Colorado, Democratic challenger Dick Freese made the "assault weapon" issue the centerpiece of his campaign against Attorney General Gale Norton.[364] His major television commercial showed an "assault rifle" menacingly pointed at the viewer, while informing viewers of Attorney General Norton's support for "assault weapons." Gale Norton won over sixty percent of the vote, the largest percentage received by any candidate for statewide office in Colorado in 1994.[365] The Oregon state legislature recently enacted legislation that preempts all local gun controls.[366] Having been told (p.1240)by the courts that the state constitutional right to keep and bear arms is unimportant,[367] many people are taking it seriously anyway.

The great irony of some courts acting as if gun owners have no rights which the courts are bound to respect is that the gun owners end up recognizing, correctly, that there is no judicial branch that will protect them from the excesses of the legislature. Thus, gun owners become much more intensely involved in the political process, and often succeed in shutting down any legislative attempt at gun control. Rutgers law professor Robert Cottrol explained how judicial inaction makes moderate gun control less obtainable:

One motivation for vigorous opposition to such measures as waiting period and background checks on the part of the NRA and others is the fear, buttressed by frank admissions on the part of many gun control advocates, that such steps are simply a back door towards prohibition. That fear is further fed by those, including many in the federal judiciary, who urge that the Second Amendment provides no protection against firearms prohibition.[368]

Imagine how different the political debate on gun control might be it we simply treated the Second Amendment the way we do other provisions of the Bill of Rights. There is no viable political movement lobbying against requirements for parade permits. Why? Because the courts have made it clear that First Amendment guarantees regarding free speech and freedom of assembly will be enforced. Another strong signal of the courts' intentions to enforce the guarantees of the Second Amendment could go a long way towards furthering the cause of reasonable regulation of firearms ownership.[369]

Perhaps one should not make too much of the three state court decisions shredding the state constitutional right to keep and bear arms. State courts have been striking down unconstitutional gun laws on state grounds from 1821 through the 1980s,[370] and the three cases discussed in article may simply represent a brief aberration in the early 1990s. But to the extent that state courts continue to disrespect the rights of the fifty percent of families who own firearms--to the extent that courts continue breaking the law in the name of the law--then courts will aggravate rather than relieve the current climate of polarization and mistrust of government.