17 July 2008

The Right To Bear Arms and Self-Defense In Colorado

Eugene Volokh notes an interesting case on the right to self-defense under historical Colorado law:

[A] 1913 Colorado decision relied on the constitutional status of the right to defend one’s home in rejecting a husband’s claimed right to enter another’s house to bring back his estranged wife. Bailey’s sister had fled her abusive husband and came to stay at Bailey’s house. The husband came to Bailey’s house; Bailey demanded that he not come in; the husband came in, and Bailey shot him. Bailey was convicted of murder, in a trial at which the court instructed the jury that a husband

"had a right to enter, in a lawful manner, the house ... of any person ... for the purpose of talking with and procuring his said wife to leave the said house, and had a right to use such reasonable force and persuasion as was necessary to induce her to ... come back to her home with him; and no person ... had a right to interfere with him in the exercise of such reasonable force or persuasion."

The Colorado Supreme Court reversed the conviction partly because this instruction “would destroy the moral, constitutional, statutory and common law right of defense of habitation.”

The rule of law articulated is probably still good law in Colorado, although the precedent is probably not directly applicable any longer. The argument would now be made from current statutory language and the cases interpreting that language. Colorado codified its criminal code decades after the 1913 case, following the general outline of the Model Penal Code (which among other things, discontinued criminal penalties for adultery), there has been further tinkering with the right to self-defense in the home by the legislature since then, and there has been a massive evolution in the law regarding both domestic violence and the nature of a husband's rights concerning his wife. Spouses are no longer immune to criminal prosecution for crimes committed against each other outside some very specific situations (e.g. statutory rape in the context of a legally recognized marriage).

The 1913 ruling followed the first wave of major reforms in the legal status of married women in the late 19th century in the state, and would have been a much harder case at the time than it is under existing law. Colorado became a state at the dawn of the progressive movement, a trend that was important it making it a leader in providing women's sufferage, and was either a leader or in the middle of the pack in enacting other protections for women's rights. This case also came on the heels of the repudiation of the fugitive slave law when the Union won the Civil War.

In contrast, in the terroritorial era in Colorado, husbands and wives would have been immune from both civil and criminal prosecutions for almost all acts other than murder perpetrated against a spouse, courts generally didn't have the authority to end a marriage by divorce (a power confined to legislatures), and married women were generally considered incapable of owning property or being parties in lawsuits.

Volokh cites the case for what it illuminates about the link between the right to self-defense, which was mostly implied and arose mostly under state law (the widespread federalization of crime didn't really begin until the New Deal), and the right to bear arms under federal and state constitutions.

Colorado's state Bill of Rights (Article II of the Colorado Constitution) differs in language from the Second Amendment. It states, at Section 13 (and has without amendment since August 1, 1876) that:

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

A growing discussion of the Second Amendment is asking if it also creates an affirmative right to self-defense, subject to reasonable government regulation, and the case for an implied right to self-defense is stronger under the state constitution, that specifically mentions defense of "home, person and property" as one of the contexts in which the state right to bear arms applies, than it is under the federal constitution, where the language and federal scope of the Second Amendment is muddier.

The Courts in Colorado have held that the state right to bear arms is not absolute, despite less language indicating such limitations in the text of the state constitution itself than in the Second Amendment. See, e.g., People v. Ford, 193 Colo. 459, 568 P.2d 26 (1977), People v. Garcia, 197 Colo. 550, 595 P.2d 228 (1979), Douglass v. Kelton, 199 Colo. 446, 610 P.2d 1067 (1980), and People v. flugbeil, 834 P.2d 843 (Colo. App. 1992). The Colorado right has instead been held to be subject to reasonable regulation under the police power which is not subject to scrict scrutiny by the courts and is not a fundamental right. Robertson v. City and County of Denver, 874 P.2d 325 (Colo. 1994).

The state right of convicted felons to bear arms is subject to reasonable legislative regulation and limitation, People v. Blue, 190 Colo. 95, 544 P.2d 385 (1975), but an assertion of a state constitutional right to bear arms may be considered in a prosecution for possession of weapons by a previous offedners if there is an evidentiary basis for doing so, People v. Ford, 193 Colo. 459, 568 P.2d 26 (1977), although not if there is no offer of proof to show a factual basis for asserting the right, People v. Barger, 732 P.2d 1225 (Colo. App. 1986).

A City of Lakewood municipal ordinance was held constitutionally invalid in the case, Lakewood v. Pillow, 180 Colo. 20, 501 P.2d 744 (1972).

Two other cases addressing the right to bear arms in Colorado, under the state constitution, were People v. Makamura, 99 Colo. 262, 62 P.2d 246 (1936) and People v. Taylor, 190 Colo. 144, 544 P.2d 392 (1975).

The Second Amendment constrains only the federal government and does not appply to laws or policies of state governments and their subordinate local governments, because the right is not "incorporated" as part of the legal impact of the 14th Amendment. This is due to current U.S. Supreme Court precedent, which is a binding statement of federal constitutional law upon all lower U.S. courts (although, in practice, state supreme courts honor this principle less often than federal courts do). This is true even after Heller, which recognized that the Second Amendment creates an individual right to bear arms for the purpose of self-defense, at least of one's home, with a handgun, subject to some level of regulation, . There is some indication that some members of the U.S. Supreme Court are interested in overruling that precedent, but lower courts are not at liberty to do so of their own accord until that day. Thus, the scope of any state constitutional right to bear arms is highly relevant at this time to the constitutional issues involved in gun control.

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