concurring in part and dissenting in part.
I concur that the Denver ordinance complies with § 18-12-105, C.R.8.2001, relating to transporting a weapon in a private automobile, but I conclude that the ordinance is unconstitutional because it is overbroad and infringes on a constitutionally protected right. Therefore, I dissent.
I have concluded that the ordinance is overbroad as it prohibits conduct that, in my view, is clearly protected by article II, seetion 18, of the Colorado Constitution. The primary enumerated affirmative defense to carrying a firearm openly on the person or in a vehicle is narrower than the constitutional ly protected purposes of protecting home, person, or property. That is, the firearm can be carried only to protect home, person, or property from "a direct and immediate threat thereto." Denver Rev. Mun.Code 38-118(a)(1) and (b)(1).
The Colorado Constitution recognizes certain natural and inalienable rights. Article II, section 8, of the Constitution provides:
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 aequir-ing, possessing and protecting property; and of seeking and obtaining their safety and happiness.
These rights include the right to defend and protect lives, liberties, and property. They are recognized, not granted, by the Constitution and have their origin in nature independent of any express provision of law. Colorado Anti-Discrimination Commission v. Case 151 Colo. 235, 380 P.2d 34 (1962)(right to purchase a home unfettered by discrimination is an unenumerated inalienable right). These "natural, essential and inalienable rights," are not absolute and are subject to the reasonable exercise of the police power. People v. Brown, 174 Colo. 513, 485 P.2d 500 (1971)(there is no constitutionally guaranteed right to drive on highways which cannot be limited).
Article II, section 18, of the Colorado Constitution states:
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.
While the provision speaks in absolute terms, the right to keep and bear arms is not Robertson v. City & a fundamental one. *761County of Denver, 874 P.2d 325 (Colo.1994)(tracing the history of Colorado cases discussing the nature of the right to bear arms). The right to keep and bear arms is also subject to reasonable regulation under the police power so long as the purpose of the possession is not constitutionally protected. People v. Ford, 198 Colo. 459, 568 P.2d 26 (1977); People v. Pflugbeil, 834 P.2d 848 (Colo.App.1992).
Thus, a statute criminalizing the possession of a firearm by persons convicted of certain felonies was upheld based on the demonstrated unfitness of such persons to be entrusted with dangerous instrumentalities, People v. Blue, 190 Colo. 95, 544 P.2d 385 (1975)(constitutionally protected purposes for possession were not asserted); an ordinance prohibiting the possession of assault weapons is constitutional, Robertson v. City & County of Denver, supra; a statute prohibiting possession of firearms by intoxicated persons is a valid exercise of the police power and is constitutional, People v. Nakamura, 99 Colo. 262, 62 P.2d 246 (1986); and a statute making the possession, use, or availability of a deadly weapon a sentence enhancer is constitutional, People v. Atencio, 878 P.2d 147 (Colo.App.1994). However, a statute prohibiting alien residents from owning or possessing firearms has been held unconstitutional because it denies them the constitutional right to keep and bear arms in defense of home, person, or property. People v. Nakamura, supra.
The Denver ordinance prohibits the possession of "dangerous or deadly weapons," a defined term considerably broader than the possession of "arms," which apparently is limited to firearms. "Dangerous or deadly weapons" include, but are not limited to, any pistol, revolver, rifle, shotgun, machine gun, air gun, gas operated gun, spring gun, sling shots, blackjacks, nunchaku, switchblade knives, gravity knives, and other implements.
Here, we are concerned with "arms," which is limited to pistols, revolvers, rifles, and shotguns the keeping and bearing of which is explicitly protected when carried on the person in an open and clearly visible manner, or in an automobile or other private means of conveyance for the purpose of protecting home, person or property.
In City of Lakewood v. Pillow, 180 Colo. 20, 501 P.2d 744 (1972), the city adopted an ordinance that criminalized the possession, carrying, or use of specified implements, including firearms, except in one's domicile. The supreme court invalidated the ordinance as unconstitutional because it prohibited protected activities. The court stated, in part:
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. Furthermore, it makes it unlawful for a person to possess a firearm in a vehicle or in a place of business for the purpose of self-defense. Several of these activities are constitutionally protected. Colo. Const. art. II, § 18. Depending upon the cireumstances, 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.
City of Lakewood v. Pillow, supra, 180 Colo. at 28, 501 P.2d at 745.
The Denver ordinance prohibits or criminalizes the mere carrying of firearms. It then accommodates those lawful purposes recognized by the supreme court in City of Lakewood v. Pillow, supra, and the additional restriction recently imposed by § 18-12-105, C.R.S.2001, relating to transporting a weapon in a private automobile, by means of affirmative defenses. That is, it is an affirmative defense to the criminal offense that defendant was: (1) in his or her domicile; (2) in his or her place of business; (8) carrying the weapon in defense of home, person, or property when there is a direct and immediate threat thereto; (4) hunting wild game or *762engaging in legitimate sporting use and transportation for those purposes; (5) a licensed dealer or collector transporting the weapon for sale or repair; (6) a member of the armed forces in performance of their duty; and (7) moving the weapon from one residence, but not business location, to another.
Denver thus perceives the list of protected conduct contained in City of Lakewood v. Pillow, supra, as exhaustive, notwithstanding the phrase "among others," used by the court. While the list of protected conduct includes possession of a weapon in a vehicle and place of business for self-defense, it does not expressly include the right to keep and bear arms in defense of home, person and property, which the supreme court in Pillow otherwise recognized and is explicit in the constitution.
At the outset it should be observed that the requirement that carrying a firearm be in response "to a direct and immediate threat" to home, person, or property has no counterpart in the constitution in either section 8 or section 13 of article II. The word "direct" connotes that the threat be "immediate; proximate; by the shortest course; without cireuity; operating by an immediate connection or relation, instead of operating through a medium; the opposite of indirect." Black's Low Dictionary 459 (6th ed. 1990). The word "immediate" means "[plresent; at once; without delay; not deferred by any interval of time" and "denotes that action must be taken either instantly or without any considerable loss of time." Black's Law Dictionary, supra, at 749.
The affirmative defense is, therefore, limited to those threats that are imminent, identified, and presumably communicated to the citizen, and are of the type and nature that might normally be reported to the authorities and with respect to which other precautions might be taken. The affirmative defense is not available to persons with a heightened, but generalized, concern for their own or other's safety as might be occasioned by being engaged in a controversial profession, activity, or event; holding controversial views, speaking out on controversial issues; transporting valuable property; having celebrity status or otherwise attracting excessive unwanted attention; entering a known high-crime area; making deliveries at night or in high crime areas; or being placed on high alert of a possible terrorist attack. The affirmative defense is also not available to persons who must confront a person, or group of persons, with respect to whom they have a good faith and justified fear of harm for which they cannot articulate any "direct and immediate threat."
In addition, the structure of the ordinance precludes law-abiding and peaceful citizens from having a firearm available in the event they are suddenly and unexpectedly confronted with a life-threatening situation requiring the lawful use of deadly force in self-defense. See § 18-1704, C.R.S.2001 (authorizing deadly physical force in self-defense, or in the defense of another, without retreat when there is a reasonable belief that a lesser degree of force would be inadequate).
These circumstances and others arise in the lives of law-abiding citizens, and, in my view, form a constitutionally protected basis for openly carrying a firearm on ones person or in a motor vehicle. Because I conclude these circumstances cannot be made subject to criminal sanctions and the ordinance does so, the ordinance is overbroad and therefore unconstitutional. I would reverse the trial court's holding to the contrary.
Some, perhaps many, believe that it is not appropriate for persons to bear arms in a highly urbanized environment or that our society has advanced to a stage where the right to bear arms is obsolete. Some believe that the possession of a firearm may precipitate crime or, at a minimum, may elevate an otherwise minor episode or circumstance into a catastrophic event. These beliefs may have statistical support or basis in fact. If that be the case, the solution, in my view, may be limited to amending or repealing article 2, section 18 of the Colorado Constitution.