(concurring) — I concur. I write separately to express my concern that unless courts explicitly require the State to prove a nexus between the defendant, the crime, and the gun under certain circumstances, we put at risk the constitutionally guaranteed right to bear arms.
¶45 “The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired . . . .” Const, art. I, § 24. This right is enshrined in both the United States and Washington State Constitutions. See also U.S. Const, amend. II. And, of course, “constitutionally protected behavior cannot be the basis of criminal punishment.” State v. Rupe, 101 Wn.2d 664, 704, 683 P.2d 571 (1984). But the use of a weapon in the commission of a crime is not a constitutionally protected activity. Cf. State v. Krantz, 24 Wn.2d 350, 353, 164 P.2d 453 (1945). In light of both principles, our legislature may criminalize or otherwise burden the right to bear arms only when it acts rationally within established constitutional guidelines, and judicial implementation of legislative action must be mindful of the constitutional restraints. See generally Rupe, 101 Wn.2d at 703-08.
¶46 The “Hard Time for Armed Crime Act of 1995” (Initiative 159), Laws of 1995, ch. 129, § 21, and other laws *152provide for mandatory enhanced prison sentences for crimes committed with weapons. See also RCW 9.94A.533. To harmonize the mandatory sentence enhancements under these acts with the constitutional right to bear arms, a plurality of this court concluded, among other things, that there must be a nexus between the weapon, the crime, and the defendant. State v. Schelin, 147 Wn.2d 562, 575-76, 55 P.3d 632 (2002). It is not enough that the defendant owns a weapon, or has one nearby; such weapons must be there to be used. Id.; cf. majority at 139.
¶47 But I note a distressing trend toward substantially relieving the State of its burden to prove such a nexus. Increasingly, it seems the nexus requirement is a closely held secret known only to appellate courts; the State and juries need not be bothered with it. Most jarringly, this court has recently held that the jury need not be instructed that there must be a nexus between the weapon, the crime, and the defendant. State v. Willis, 153 Wn.2d 366, 373-74, 103 P.3d 1213 (2005). This case could have given us an opportunity to reaffirm the State’s burden to show that the defendant was actually armed during the commission of a crime by showing not merely that a gun was present, but that there was a nexus between the gun, the crime, and the defendant. I do not believe it is enough for the State to prove that “the weapon [is] easily accessible and readily available for use, either for offensive or defensive purposes,” majority at 138. We should not be routinely determining whether there was a nexus (and thus whether the defendant was actually armed) on some species of harmless error review.
¶48 Merely because the weapon is theoretically accessible does not, in my view, create a nexus between the weapon, the defendant, and the crime. The sentencing enhancement does not apply just to violent crimes; it applies to nearly all felonies. RCW 9.94A.533(3).15 Is it reasonable to say that a defendant charged with the class C *153felony of false statement to the department of revenue, RCW 82.32.290(2)(a)(iii), is “armed” if she happens to have a gun within reach as she fills out the tax forms? Should a college student growing a single marijuana plant in his kitchen be subject to additional punishment merely because of proximity to a drawer full of kitchen knives? See RCW 9.94A.602 (defining any knife with a blade longer than three inches as a deadly weapon). Worse yet for him if a member of the family has a gun collection close by.16
¶49 I conclude that this court erred when it effectively relaxed the standard necessary to show that a defendant was actually armed in the course of a crime by implicitly approving of an incomplete jury instruction. See Willis, 153 Wn.2d at 373-74; cf. State v. Valdobinos, 122 Wn.2d 270, 282, 858 P.2d 199 (1993) (mere constructive possession insufficient). Our constitutions guarantee the right to bear arms. While this is subject to reasonable regulation, such regulation must be carefully designed not to burden the legitimate enjoyment of the right. In many contexts, the mere fact that a weapon was “readily available” or “easily accessible” casts a shadow over the right by subjecting citizens who are exercising their constitutional right to bear arms to a much higher sentence than citizens who do not exercise this right, notwithstanding whether or not the weapon was actually used in a crime in any meaningful way. See, e.g., State v. Sabala, 44 Wn. App. 444, 447-48, 723 P.2d 5 (1986). This impermissibly chills the right to bear arms. I would take this opportunity to reaffirm that the State must explicitly prove to the trier of fact that there was *154in fact a nexus between the weapon, the crime, and the defendant, and that the weapon was there to be used not merely there.
¶50 In this case, the majority has correctly ruled that a man with an unloaded pistol in a zippered backpack in an unreachable location in a vehicle is not meaningfully “armed” even under the expansive approach recently approved of by Washington courts. Majority at 138-139, 143. Accordingly, I concur with the majority in result.
J.M. Johnson, J., concurs with Chambers, J.
The statute exempts certain firearms offenses and does not address unranked felonies. RCW 9.94A.533(3)(f).
Our law makes a sharp distinction at sentencing between the possession of a firearm and the possession of other deadly weapons. Illustratively, possession of a single firearm will result in a five year enhancement for a class A felony and three years for a class B felony. RCW 9.94A.533(3)(a), (b). Such enhancements are mandatory, served while in total confinement, and consecutive to the sentence for the offense and to each other. 9.94A.533(3)(e). By contrast, a defendant armed with a nonfirearm deadly weapon, such as a knife, would receive an enhancement of two years for a class A felony and one year for a class B felony. RCW 9.94A.533(4)(a), (b). In either case, if the offender has the poor judgment to commit a second crime with a firearm or deadly weapon enhancement, the enhancements are doubled, further compounding how differently the two types of weapons are treated. RCW 9.94A.533(3)(d), (4)(d).