DISTRICT COURT, DENVER COUNTY, COLORADO

Case No. 90 CV 603

REPLY BRIEF OF STATE OF COLORADO

LAWRENCE M. ROBERTSON, JR., M.D.;

SHARON DEATHERAGE;

JEFFREY HECHT; and

DAVID JEWELL d/b/a Scotties Guns & Militaria,

Plaintiffs,

and

STATE OF COLORADO ex rel. Gale A. Norton,

Plaintiff‑Intervenor,

v.

THE CITY AND COUNTY OF DENVER;

ARI ZAVARAS, Chief of Police of the City and County of Denver; and

MANUEL MARTINEZ, Manager of Safety and Ex‑Officio Sheriff of the

City and County of Denver,

Defendants.

TABLE OF CONTENTS

SUMMARY OF ARGUMENT................................................. 2

ARGUMENT................................................ 4
I. LACKING A RATIONAL BASIS, THE ORDINANCE IS VOID.4
A. The banned firearms do not have a higher rate of fire than other firearms, since all semiautomatics fire at the same rate ........................................... 5
B. The banned firearms do not have "a capacity to fire an inordinately large number of rounds without reloading," since ammunition capacity depends on a separate, detachable component ‑‑ the magazine .................................................. 8
C. The outlawing of firearms made for antipersonnel and military use is illegitimate, since these are precisely the firearms that the Constitution protects .................. 9
D. The banned firearms are rarely used in crime, as defendants' evidence demonstrates. 11
E. Defendants' post‑hoc efforts to find a rational basis for the ordinance are just as groundless as the ordinance's stated bases .................................... 21

II. THE GENERAL DEFINITION FOR "ASSAULT WEAPON" IS VOID FOR VAGUENESS, AS DEFENDANT'S BRIEF DEMONSTRATES. ......................... 25
A. Characteristics of "Assault Weapons." ............................. 25
1. "A Shorter Length than Recreational Firearms." .......... 26
2. Rate of fire ........................................... 29
3. "Military Features." ..................................... 29
B. Design history of pistols. ......................................... 31
C. Magazines that do not fit semiautomatics. ...........................32
D. Contradiction between the 1898 and the 1954 exemption. ............. 32

III. THE EXEMPTION FOR POLICE OFFICERS IS IRRATIONAL AND REPUGNANT TO THE CONSTITUTION. ............................................... 33

IV. THE CONDITIONS UNDER WHICH PERSONS MAY POSSESS REGISTERED FIREARMS ARE VAGUE OR IRRATIONALLY BURDENSOME .................. 35
A. Defendants have voluntarily corrected some of the vague or irrational provisions. 35
1. The permit that states "This is not a permit" is being corrected ........ 35
2. The codified ordinance is being corrected to include a necessary cross‑reference. 35
3. The ban on repair has been lifted. .......................... 36
B. The prohibition on moving a registered firearm to a new address is irrational. 37
C. The possible requirement that a person receive police permission before taking the gun hunting or target shooting is irrational .................................... 38
D. The ban on sales is vague ........................................ 39
E. The prohibition of use of registered firearms for self‑defense is irrational, and violates Article II, Section 3 of the Constitution ................................... 40

V. THE BAN ON FIREARMS BY TRADE NAME AND TRADEMARK VIOLATES EQUAL PROTECTION. BECAUSE MANY OF THE BANNED GUNS ARE NOT SEMIAUTOMATIC OR DO NOT EXIST, THE BAN IS ALSO VAGUE ............................ 41
A. Outlawing Products by Name rather than by Characteristic Violates Equal protection. 41
B. Defendants' Expert and Reference Manuals Confirm that Many of the Banned Semiautomatics are not Semiautomatic or Do Not Exist ............................ 46
1. Rifles .................................................. 47
2. Pistols ................................................ 57
3. Shotguns............................................... 59
4. Summary of issues regarding correct names. .................... 62
5. Further evidence of vagueness: the ordinance names only Chinese and Yugoslav Kalashnikovs, but defendants claim that all Kalashnikovs are illegal. 65
C. The Ban on Magazines which "May Be Modified" to hold 21 or more rounds is Vague. ..... 67

VI. THE ORDINANCE VIOLATES COLORADO'S CONSTITUTIONAL AUTHORITY TO MAINTAIN A MILITIA. ......................................... 68
A. The Constitution defines able‑bodied males aged 18‑45 as belonging to the Militia. 68
B. The AR‑15 Sporter and similar arms are militia weapons ............... 72
C. The militia is partly armed by Private Citizens' Arms ................... 73

CONCLUSION ............................................................. 76

DISTRICT COURT, DENVER COUNTY, COLORADO

Case No. 90 CV 603

REPLY BRIEF OF STATE OF COLORADO

LAWRENCE M. ROBERTSON, JR., M.D.;

SHARON DEATHERAGE;

JEFFREY HECHT; and

DAVID JEWELL d/b/a Scotties Guns & Militaria,

Plaintiffs,

and

STATE OF COLORADO ex rel. Gale A. Norton,

Plaintiff‑Intervenor,

v.

THE CITY AND COUNTY OF DENVER;

ARI ZAVARAS, Chief of Police of the City and County of Denver; and

MANUEL MARTINEZ, Manager of Safety and Ex‑Officio Sheriff of the

City and County of Denver,

Defendants.

This reply brief is filed by plaintiff‑intervenor the State of Colorado ex rel. Gale A. Norton ("Colorado") in support of its motion for summary judgment.

Colorado's so‑called "brief" is in fact quite lengthy. The length is due to the fact that defendants' prohibition on so‑called "assault weapons" is quite unconstitutional, and creates a host of problems which must be addressed. Colorado thanks the Court in advance for its attention to this brief, which places much more demands on the Court's limited time than does a normal brief.

Colorado incorporates by reference the plaintiffs' reply brief.

For the Court's convenience, a glossary of certain technical firearms terms is attached as Colorado exhibit 50.

SUMMARY OF ARGUMENT

The ordinance's "findings" about the rate of fire and ammunition capacity of the banned guns are erroneous, and defendants offer no credible evidence to rescue them. The ordinance's findings about use of the banned guns in crime are also incorrect, and defendants' rebuttal consists almost entirely of unsubstantiated assertions without factual support. Defendants' post hoc inventions of new rational bases for the ordinance are also contrary to all known fact.

The language regarding firearms of "a shorter length than recreational firearms" is vague; defendants' attempted explication renders it vaguer still and illustrates the elastic and inexact boundaries between legal and illegal guns. The language banning pistols based on their design history is also vague, and defendants' attempts to clarify it serve only to compound the vagueness.

Defendants make no attempt to defend the irrational and Constitutionally odious provision that all police officers may possess "assault weapons" even though the ordinance specifically finds "assault weapons" not to be suited to protection purposes.

Several of the vague or irrational requirements regarding licensed gun owners are being voluntarily corrected or repealed by defendants. Other vague and irrational provisions remain, namely the ban on moving a registered firearm to a new address, a possible requirement that the police be notified before the gun is transported for target shooting, and the ban on advertising a registered gun for sale. Defendants' argument that the above problems do not exist depends on misreading the ordinance.

Far worse, the prohibition on using a registered firearm for lawful self‑defense remains, and defendants neither justify nor deny the prohibition.

The ban on certain firearms by trade name and trademark violates equal protection. Defendants' contention that Colorado's equal protection argument is "a fraud on the court" is not well‑grounded.

A firearms expert and firearms books cited by defendants confirm that a number of the guns banned by name are not semiautomatic, or do not even exist. Regarding some other guns which Colorado had alleged not to be semiautomatic, defendants implicitly argue that proper and precise naming of the guns is not necessary. In defending the ordinance's naming of certain Kalashnikov rifles, defendants make sweeping and unsupportable claims about the scope of the ban, further illustrating the risks of arbitrary and capricious enforcement.

The militia of Colorado includes able‑bodied males aged 18‑45, who are, under the present militia system, authorized to arm themselves and train themselves with firearms like the Colt AR‑15 Sporter. Defendants' claim to the contrary is based on Constitutional language which does not exist, on the selective omission of a word from a statute, and on disregard of historical evidence.

ARGUMENT

I. LACKING A RATIONAL BASIS, THE ORDINANCE IS VOID.

Colorado in its summary judgment brief demonstrated that all of the findings of fact in section (a) of the ordinance were false. Lacking valid premises, the ordinance failed the rational basis test. A fortiori, defendants could not carry their burden at trial of proving that the ordinance, which involves the fundamental rights of bearing arms and self‑defense, is necessarily related to a compelling state interest and is narrowly tailored.

Regarding the rational basis test, defendants do not challenge the extensive authority cited by Colorado to demonstrate that the Court must take the rational basis test seriously. E.g., Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) (under rational basis test, Court examined each of city's reasons for denying a zoning permit, and found the reasons illegitimate, inconsistent, or insufficiently demonstrated).

Colorado does not suggest that this Court may substitute its policy judgments for those of the city council. Colorado does suggest that the Court must apply the rational basis test carefully, and examine whether the defendants' purported bases for the ordinance are illegitimate, inconsistent, or insufficiently demonstrated. The Court may not accept one of defendants' findings of fact if the finding is wrong. For example, in City of Colorado Springs v. Grueskin, a city imposed a number of safety restrictions on delivery of gasoline. There was no suggestion that the fundamental rights test should be used; and the city Fire Chief testified as to the safety advantages of the restrictions. Nevertheless, challengers of the ordinance provided expert testimony that convinced the trial court that the restrictions did not effectively promote public safety. The Supreme Court upheld the trial court, struck the ordinance notwithstanding the Fire Chief's arguments about safety, and reaffirmed the long‑standing test regarding the exercise of police powers: If a restriction upon the use of property is to be upheld as a valid exercise of the police power it must bear "a fair relation to the public health, safety, morals, or welfare," and have "a definite tendency to promote the same." In determining the validity of restraints upon freedom imposed by statute or ordinance, "The determination we are called upon to make is whether the ordinance has a real and substantial relation to the accomplishment of those objectives which form the basis of police regulation." 161 Colo. 281, 422 P.2d 384, 388 (1967).

A. The Banned Firearms do not have a Higher Rate of Fire than other Firearms, since all Semiautomatics Fire at the Same Rate.

The ordinance "finds" that so‑called "assault weapons" are capable of a rapid rate of fire" Section 38‑130(a). Colorado had introduced extensive evidence demonstrating that the banned guns fire no faster, and sometimes slower, than many non‑banned guns. All semiautomatics, banned or non‑banned, fire exactly as fast as one can squeeze the trigger. A conventional pump action shotgun, because it can fire 6 lethal pellets with one trigger squeeze, fires far faster than a banned Kalashnikov rifle (Colo. sum. j. br., at 19‑21). Defendants do not challenge Colorado's evidence, which included affidavits from police and U.S. Navy combat trainers, and videotapes demonstrating the rate of fire of various guns.

Instead, defendants' entire reply is: "The destructive nature of assault weapons due to their rapid fire, capacity to fire large numbers of rounds and muzzle velocity is well documented. See Video Tape titled "The Deadly Distinction," Hand Gun Control Inc. [sic, "Handgun Control, Inc."], attached hereto as Exhibit 'J'; New York Times, Feb. 21, 1989, attached hereto as exhibit 'K'; Affidavit of Dr. Roxanne Roberts, attached hereto as Exhibit 'L'." (Defs. rep. br., at 17).

The New York Times article contains no evidence on rate of fire other than the author's phrase "rapid‑fire assault rifles." Dr. Roberts, defendants' second source, says nothing at all about the rate of fire of semiautomatics. Defendants' only authority, then, for their claim that the banned guns fire more rapidly than other guns is the videotape from the gun prohibition lobby Handgun Control, Inc. The videotape's sole demonstration of the rate of fire issue is a segment displaying a lengthy sequence of firing from a semiautomatic Kalashnikov rifle, and three shots being fired from a (nonbanned) Remington rifle. The person shooting the Remington takes the time to aim and fire each shot from the shoulder, but he fires the Kalashnikov from the hip without aiming. The "demonstration" does not prove that Kalashnikovs fire faster than Remingtons, only that unaimed hip fire is faster than aimed shoulder fire. As one of Colorado's combat training experts pointed out, a person who fires without aiming will almost never hit anything (Phillips aff., at 2, Colo. ex. 29). (See also Johnson aff., at 3, Colo. ex. 51 [Defense Intelligence Agency expert in assault weapons classification.].)

The banned rifles, while not firing more rapidly than other guns, are easier to control and aim accurately at any given rate of fire. This is because the semiautomatic mechanism diverts some recoil energy away from the shooter, and uses the energy to reload the next cartridge. The banned rifles fire relatively low‑powered cartridges compared to hunting rounds, and therefore have less recoil. (The issue is discussed in Colorado's Summary Judgment Brief, at 21.) Features such as a pistol grip also allow a long gun to be controlled more accurately at a given rate of fire

Although the ability to fire accurately would seem to be a virtue, defendants disagree. Defendants had earlier insisted that so‑called "assault weapons" are designed to be "spray‑fired" (Defs. sum. j. br., at 17). Defendants now contend that the very features which make the gun easy to control and fire accurately (low recoil and a pistol grip) have the pernicious tendency to allow "the shooter to counteract the tendency of the weapon to rise as it is fired" (Defs. rep. br., at 31).

It is difficult to accept defendants' contention that a firearm's ability to fire more accurately makes it illegitimate. Public safety is enhanced if persons using guns for personal and civil defense can hit the target. Of what benefit to public safety is an ordinance that encourages citizens to use guns with high recoil that fire wildly, thereby endangering every person in the vicinity?

In sum, Colorado demonstrated that the "finding" that the so‑called "assault weapons" fire more rapidly than other guns was plainly wrong. Defendants have offered nothing to counter Colorado's proof, except to complain that the guns are too accurate. Hence, it is appropriate for this Court to find that "rate of fire" is not a rational basis for the instant ordinance.

B. The Banned Firearms do not have "a capacity to fire an inordinately large number of rounds without reloading," since Ammunition Capacity Depends on a Separate, Detachable Component ‑‑ the Magazine.

Colorado had explained that how much ammunition a firearm (banned or nonbanned) can hold depends on the magazine. The magazine is usually a separate, detachable, interchangeable part. Hence, any gun that can accept a detachable magazine (that is, almost every semiautomatic pistol, and most semiautomatic rifles), can accept a magazine of every size. Hence, it is irrational to ban some semiautomatics based on their ammunition capacity; a banned Uzi pistol's capacity to hold ammunition in its magazine is the same as nonbanned Colt pistol's capacity to hold ammunition. The magazine, not the gun, is the variable (Colo. sum. j. br., at 21‑22).

Defendants' only reply on the magazine issue is to assert "The weapons banned by the Ordinance have extraordinary fire power [sic] because of their rate of fire and their ability to accept high capacity magazines" (Defendant's Reply Brief at 19; emphasis in original). The reply fails to address the fact that the banned firearms are no more capable of accepting high capacity magazines than are nonbanned firearms. And as discussed supra, the banned firearms do not fire more rapidly than nonbanned firearms.

Defendants having not attempted to reply factually to Colorado's argument, it is appropriate for the Court to find that the banned firearms do not have larger ammunition capacity than other firearms, and that the ordinance's finding to the contrary is irrational.

C. The Outlawing of Firearms made for Antipersonnel and Military Use is Illegitimate, since these are Precisely the Firearms that the Constitution Protects.

The ordinance contains the finding that the banned firearms are "designed primarily for military or anti‑personnel [sic] use." Sect. 38‑130(a). Plaintiffs in their summary judgment brief, which Colorado adopted by incorporation, argued that the arms most protected by the Colorado Constitution are military firearms. Plaintiffs offered extensive historical citations in support of this proposition, including a Constitutional annotation by E.T. Wells (the first Justice elected to the Colorado Supreme Court, a highly respected Justice of the Territorial Court, and a delegate to the state Constitutional Convention). Defendants offer no refutation to plaintiffs' argument that military firearms are the firearms that the authors of the Constitution most intended to protect.

Instead, defendants reject the use of historical evidence, and, citing the case upholding a ban on possession of firearms while intoxicated, state that "the inclusion of allegedly common‑place behavior does not render the law over‑broad [sic]" (Defs. rep. br., at 13).

The obvious flaw in defendants' reasoning is that there is no evidence that the Colorado Constitution's right to bear arms guarantee was enacted with the specific intent of protecting possession of firearms while intoxicated. There is, however, the strongest possible evidence that the Constitution was specifically intended to protect possession of military firearms, and that the authors of Constitution were familiar with rapid‑fire, high‑capacity military firearms (see Plaintiffs memo. for sum. j., at 28‑38, incorporated by reference into Colorado's brief).

Defendants have offered no legal reason why this Court should reject the clear and explicit intent of the authors of the Colorado Constitution. Because military firearms are protected by the Constitution, it is appropriate for this Court to find that the ordinance's ban on such firearms is illegitimate, and hence irrational.

Besides being for "military" use, the banned weapons are also said to be made for "anti‑personnel [sic] use." Sect. 38‑130(a). Factually, this finding is correct, but illegitimate. Plaintiffs and Colorado both argued that only firearms designed for antipersonnel use could be protected by the Constitution, because only such firearms could be useful "in defense of home, person and property, or in aid of the civil power when thereto legally summoned." Colo. Const. art. II, sect. 13 (Colo. sum. j. br., at 22‑24; Plaintiffs sum. j. memo, at 19‑20). Defendants do not respond to this point. Because it is illegitimate to ban firearms primarily designed for antipersonnel uses, when in fact antipersonnel uses are precisely the ones protected by the Constitution, this Court should find that the ordinance's ban on firearms primarily designed for antipersonnel use is irrational.

D. The Banned Firearms are Rarely Used in Crime, as Defendants' Evidence Demonstrates.

Colorado's brief in support of summary judgment had argued that the banned firearms are rarely used in crime. Hence, the following "finding" in the ordinance was irrational: "[L]aw 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." Sect. 38‑130(a).

Colorado had pointed out that the homicide rate for civilians is not at any "record" high, and that the homicide rate of police officers is at a 10‑year low. Defendants do not challenge these facts.

Colorado also argued that the use of the banned firearms in crime in general was quite low. As evidence, Colorado offered the affidavits of two professional criminologists; the criminologists in turn cited voluminous statistical evidence regarding firearms seized from criminals and firearms used in crimes in many different American cities and states. The statistical evidence cited by Colorado's criminologists came entirely from official government sources. The evidence showed that so‑called "assault weapons" amounted to approximately 0.5% to 3.0% of all crime guns ‑‑ even in cities with the most intense drug and gang violence (Colo. sum. j. br., at 24‑26).

Defendants do not challenge the validity of any of the governmental statistical evidence offered by Colorado's criminologists. Instead, defendants attempt a counter‑offer of proof.

First of all, defendants offer affidavits from local police officers Patrick Sullivan and David Michaud, and from defendant Zavaras himself (Defs. rep. br., exs. B, C, and D). The affidavits contain no statistics and no hard evidence. They are nothing more than assertions, and no rational decision‑maker could find them more persuasive than uncontested governmental statistics. At most, the affidavits amount to anecdotal proof that the banned firearms are occasionally used in crime, a point that Colorado has itself stated.[1]

Defendants also show the court pictures of 15 "assault weapons" seized by the Denver police (Defs. rep. br., ex. A). Defendants do not state what percentage of seized weapons the "assault weapons" amount to, and do not list which crimes the weapons were seized in relation to. Indeed, it might well be that some of the seized "crime" guns pictured were seized pursuant to the instant ordinance.

Of the 232 shotguns currently held by the police, not a single one is one is covered by the ordinance.[2] Defendants showed the Court 6 "assault weapons" that are rifles or carbines. (Carbines are a type of small rifle.) These six "assault rifles" amount to 2.1% of the police inventory of 282 rifles. Also shown to the court were 8 handguns which defendants consider "assault weapons." (One of which was inoperable at the time it was seized.) These 8 weapons amount to less than 1 percent (0.6%) of the 1248 handguns in the police inventory. Altogether, the 14 weapons exhibited by defendants amount to less than 1 percent (0.8%) of the 1760 guns in the police inventory. Very plainly, the City Council's finding that "assault weapons" are a serious crime problem was ignorant and hysterical.

Other attempts at proof propounded by defendants are an affidavit from and a videotape narrated by Phillip McGuire, a former official with the Bureau of Alcohol, Tobacco and Firearms, currently on the payroll of the prohibition lobby Handgun Control, Inc. The McGuire affidavit and tape offer no statistical evidence showing that semiautomatics are commonly used in crime; to the contrary, the taped interviews with law enforcement officials indicate that automatics are the crime problem.[3] Mr. McGuire does assert in his affidavit, without any substantiation, that some criminals prefer "assault weapons." Standing alone, Mr. McGuire's unsupported assertions would be of little probative value. One of Mr. McGuire's supervisors from BATF has reviewed Mr. McGuire's affidavit, and concluded that the claims therein are false. (Robert E. Sanders affidavit, Colo. ex. 43).

Several "facts" in Mr. McGuire's affidavit cast his expertise into serious doubt. First, Mr. McGuire calls guns by the wrong name (Sanders aff., at 4, Colo. ex. 43). Next, his claims about the "best estimates" of the numbers of firearms in circulation are fallacious (Sanders aff., at 6, Colo. ex. 43). Mr. McGuire's complaint about "high velocity assault weapons" is technically inept. As Mr. McGuire's supervisor, Mr. Sanders, writes, "[S]tatus as an 'assault weapon' does not add velocity to a firearm. Assuming a constant barrel length, a 9mm cartridge has the same velocity for any firearm. Shorter barrels decrease velocity." (Defendants have strenuously argued that "assault weapons" are shorter than other guns.) (Sanders aff., at 6, Colo. ex. 43.) Lastly, Mr. McGuire touts the benefits of gun registration by claiming "mere possession of an unregistered firearm by a felon or a non‑felon is a prosecutable offense" (McGuire aff., at 4). Apparently Mr. McGuire is not aware of the Supreme Court decision holding that felons cannot be prosecuted for failing to register under laws such as Denver's, because such registration would amount to compelled self‑incrimination as to illegal possession of a weapon. Haynes v. United States, 390 U.S. 85 (1968). Cf. People v. Duleff, 183 Colo. 213, 515 P.2d 1239, 1241 (1973) (ruling that marijuana growers cannot be compelled to obtain a license, citing Haynes, and noting applicability of principle to firearms licensing). In light of Mr. McGuire's less than thorough understanding of firearms mechanics and law, his unsupported assertions about firearms use in crime should be viewed with caution.[4]

The McGuire affidavit contained no substantiation of any of its facts, and is therefore unreliable on its face. The Sanders affidavit further impeaches Mr. McGuire's wild claims, by demonstrating that Mr. McGuire's grasp of or veracity regarding technical and legal issues is rather weak, and by showing the Court that Mr. McGuire's unsupported claims about criminal use of "assault weapons" are rejected by Mr. McGuire's own supervisor.

Mr. McGuire's general credibility on issues affecting the right to bear arms should also be judged in light of the fact that when Mr. McGuire was Chief of Investigations for B.A.T.F., the United States Senate made the finding that "[E]nforcement tactics made possible by current firearms laws [which were later reformed over Mr. McGuire's strong opposition] are constitutionally, legally, and practically reprehensible.... [A]pproximately 75 percent of BATF gun prosecutions were aimed at ordinary citizens who had neither criminal intent nor knowledge, but were enticed by agents into unknowing technical violations."[5

In addition to supplying unsubstantiated conclusory assertions in affidavits, defendants support their argument by listing four murderers in all of the United States who used the banned firearms in 1989 (Defs. rep. br., at 17‑18). One of those four cases involved Eugene Thompson's crime spree in the suburbs south of Denver, which defendants state "strikes especially close to home" (Defs. rep. br., at 18). But as Colorado explicated in its summary judgment brief, Eugene Thompson did not use one of the banned weapons. He used a stolen, fully‑automatic MAC‑11, and fully automatic firearms are not covered by the ordinance (Colo. sum. j. br., at 90‑91; Denver Post article, Colo. ex. 39). That defendants persist in making the Eugene Thompson case a centerpiece of their argument ‑‑ even though defendants' ordinance does not cover Thompson's gun ‑‑ is telling evidence of the hollowness of defendants' position, and the appropriateness of summary judgment on behalf of Colorado.[6]

Defendants were asked in interrogatories for statistics relating to criminal misuse of the banned firearms in the Denver area. They were not able to supply any such statistics, and do not do so in their brief. Defendants' brief and some of its attached affidavits do complain about a rising "general level of violence on the streets," even though police statistics show that murder is down 20.3%, aggravated robbery down 18.2%, and simple robbery down 15.2% from 1988 to 1989 (Defs. rep. br., at 16; Defs. ex. G, at 19 [1989 police report]). Defendants point to "the rise in aggravated assaults in Denver" (Defs. rep. br., at 16). (The increase was 6.5% [Defs. rep. br., ex. G, at 19].) But defendants offer no evidence connecting such assaults to the banned firearms.

Having thus far offered only unsupported assertions with no hard data regarding guns, defendants at last make a stab at documented statistical evidence. They write: "On the national level, the use of automatic and semi‑automatic weapons is increasing, rising more than 78 percent in 1988 over 1987" (Defs. rep. br., at 16). This fact, while interesting if true, is of no relevance to the instant case, which involves a ban on semiautomatics only, and therefore requires evidence about semiautomatics only, not statements about semiautomatics lumped in with nonbanned guns.[7] One authority cited by defendants for their 78% figure is Dr. Paul Blackman, one of Colorado's criminologist experts. "Affidavit of Paul Blackman, Attorney General Exhibits at Tab 3, Attachment 3 at 48" (Defs. rep. br., at 16). In fact, Dr. Blackman says no such thing. "Attachment 3" of his affidavit is an excerpt from the American Journal of Criminal Law. The article contains no page 48. Footnote 48 of the article supports the statement: "Only 2.2% of the firearms confiscated in San Francisco were military‑style semiautomatics." Moreover, Dr. Blackman explains that the frequency with which the guns in question have increased as crime guns is less than the percentage by which the guns have increased as part of the gun stock (Blackman aff., paras. 9‑11, Colo. ex. 3).

Finally, defendants do make one essay at offering the kind of statistical evidence which might enable them to show at trial that the ordinance passes the rational basis test. Defendants cite a series of article written for the "Co Newspapers" [sic, "Cox"] that purport to show that "assault weapons" are used in disproportionate numbers of crimes. The Cox newspaper articles are based on two newspaper reporters' compilation of data from firearms traces by the Bureau of Alcohol, Tobacco and Firearms.

Colorado's criminologists had included in their affidavits and attachments data debunking the Cox assertions, and defendants do not address the criminologists' critique. See Affidavit of Dr. Paul Blackman, Colo. ex. 3, para. 11 (From 1986 to 1989/90, the number of military style semiautomatics rose 500%, but BATF traces of such guns rose only 100%, indicating that criminal use rose substantially slower than overall availability); Affidavit of Prof. Gary Kleck, Colo. ex. 26, attachment at 7‑9. (Five out of six trace requests involve illegal possession, rather than a violent crime; only 2% of armed violent crimes result in a trace. Cox results are inconsistent with police data, because in cities for which Cox specified data, the trace percent was far higher than the actual percentage of "assault weapons" seized from criminals.)

If the Cox articles were considered reliable, then they would prove that the ordinance is not narrowly tailored. Over 90% of the Cox "assault weapon" traces involved only 10 models of firearms (Defs. rep. br., ex. H, at 1 [May 21 story, col. 3]). Thus, defendants' ban on a whole host of other guns, including most centerfire semiautomatic rifles, is not narrowly tailored.

Even if the Cox newspapers study were considered credible enough to allow defendants to survive a summary judgment motion on the rational basis test, the lone piece of evidence ‑‑ written by two journalists with a very obvious axe to grind ‑‑ cannot allow the ordinance to survive summary judgment under the proper test, the fundamental rights test. Under the fundamental rights test, defendants bear the burden of proving the ordinance Constitutional. A pair of journalists by themselves cannot carry the burden of proof against overwhelming evidence of government statistics from Colorado and the rest of the nation.

And, even if defendants could prove that the banned firearms are a unique crime problem ‑‑ a fact that defendants have not come close to proving ‑‑ the fact that a Constitutionally protected activity causes crime provides no justification for banning it. See Arnold v. City and County of Denver, 171 Colo. 1, 464 P.2d 515, 517‑18 (1970) (striking anti‑loitering ordinance, even though city argued "forcefully and quite compellingly" that ordinance was necessary to crime control). "Grim as it may be, if effective law enforcement is dependent upon unconstitutional statutes, then the choice of the way ahead is for the people to act or fail to act under the amendatory processes of the Constitution." Id.

E. Defendants' post‑hoc efforts to find a rational basis for the ordinance are just as groundless as the ordinance's stated bases.

Searching for a rational basis for the ordinance, defendants offer two theories that were never presented to the City Council, and have never been argued until defendants' reply brief.[8] First, "The destructiveness of semi‑automatic weapons is easily increased through the conversion of such weapons into fully automatic weapons with kits available to the public" (Defs. rep. br., at 17). The Bureau of Alcohol, Tobacco and Firearms ‑‑ a source which defendants in other contexts use as their primary authority ‑‑ has determined that no semiautomatic covered by the federal import ban, nor any semiautomatic now on sale domestically, is "readily convertible." B.A.T.F. technical experts quoted in New York Times, Apr. 3, 1989, Colo. ex. 44; Kleck aff., Colo. ex. 26, attachment at 16‑17. The only examples of the so-called "fully automatic" conversion kits which defendants supply are advertisements for products that are no such thing.[9]

Defendants' other new theory is that the guns have high "muzzle velocity," which makes them more destructive (Defs. rep. br., at 17). The theory borders on the fatuous. The banned pistols are mostly in the .45 or 9mm calibres, and have the same velocity as any other pistol in that calibre. The banned rifles are mostly .308, 7.62 x 39mm, or .223 calibre. Therefore, they have equal or lesser velocity than standard hunting weapons; most hunting weapons fire a larger calibre, and are designed to kill large animals a long distance away, rather than to wound humans a short distance away. See Velocity, energy, and cartridge tables, Colo. ex. 38; Fackler statememt, Colo. ex. 47.

Defendants' unscientific theory is that high‑velocity weapons (which most of the banned guns are not) produce tissue destruction that is much more severe than do other firearms. Defendants' only sources for their theories about bullet wounds are a newspaper article (not usually considered a reliable source of medical research) and an affidavit from an emergency room physician. While the physician's concerns are no doubt sincere, the physician has published only three articles in her entire career, none of them dealing with wound ballistics. No court has ever certified her as an expert.

Defendants' assertions from people outside their field of expertise are refuted by persons who do understand wound ballistics. Even Handgun Control's own videotape rejects the science fiction velocity theory.[10] Dr. Martin Fackler is President of the International Wound Ballistics Association, and Director of the Wound Ballistics Laboratory at the Letterman Army Institute of Research, the world's only wound ballistics research center. His very lengthy c.v. of medical journal publications demonstrates that he is the world's foremost expert in wound ballistics; he has testified numerous times as an expert witness, often on behalf of the government (Colo. ex. 47). He rejects the "velocity" theories as misinformed or deliberate propaganda. After reviewing the autopsies of the children killed in Stockton, California, Dr. Fackler found "The magnitude of the tissue disruption reported from the fatal wounds inflicted by the AK‑47 bullets fired by Purdy was, in fact, no greater than that produced by many common handgun bullets." Dr. Fackler observed that of the 35 children shot by Purdy with the Kalashnikov, 30 survived. Had Purdy instead used a conventional hunting shotgun, over half the children likely would have died. The notion that "assault weapons" produce unusually destructive wounds lacks a scientific basis. See Fackler, Malinowski, Hoxie, and Jason, "Wounding Effects of the AK‑47 Rifle Used by Patrick Purdy in the Stockton, California, Schoolyard Shooting of January 17, 1989," T11 American Journal of Forensic Medicine and Pathology 185 (1990); Fackler, "Wounding Patterns of Military Rifle Bullets," International Defense Review, 59 (1989); Fackler, "Wound Ballistics: A Review of Common Misconceptions," 259 J. American Medical Assoc. 2730 (1988); all in Colo. ex. 47. See also Lindsey, "The Idolatry of Velocity, or Lies, Damned Lies, and Ballistics," 20 J. Trauma 1068 (1980).

In short, the City Council made several "findings" to support its firearms ban. Colorado in its summary judgment brief demonstrated that each one of those findings was clearly incorrect, and unsupported by any credible evidence. Although defendants have attempted post hoc to find a rational basis for the ordinance, defendants' new "rational bases" are rejected even by defendants' own experts. Defendants in their reply brief have offered no remotely credible defense of any of the "findings" that could allow a reasonable decision‑maker to conclude that any of the findings were true.

On no issue regarding the ordinance's bases have defendants come close to showing that they could carry their fundamental rights burden of proving that the ordinance is necessarily related to a compelling government interest and is narrowly tailored. Indeed, because every "fact" that defendants assert about the dangerousness of so‑called assault weapons is demonstrably not a fact, the ordinance cannot be related to any government interest. And because the ordinance is explicitly intended to outlaw antipersonnel firearms, its purpose is illegitimate. An ordinance based on false or illegitimate premises is irrational, and hence unconstitutional.

II. THE GENERAL DEFINITION FOR "ASSAULT WEAPON" IS VOID FOR VAGUENESS, AS DEFENDANT'S BRIEF DEMONSTRATES.

Colorado's brief for summary judgment argued that almost all parts of the general definition of "assault weapons" are void for vagueness. Defendants' arguments to the contrary in their reply brief simply demonstrate the ordinance's defectiveness.

A. Characteristics of "Assault Weapons."

First of all, defendants suggest that it does not matter if subsection 38‑130(b)(1)'s list of "assault weapon" characteristics is vague, because the subsection is of no legal effect, being just a general description of "assault weapons" that does not operate to ban any firearm (Defs. rep. br., at 29). If so, the description should logically have been placed in the "Legislative intent" subsection, rather than in the "Definitions" subsection. Moreover, subsection (b)(1) does have legal effect, since it will, at the least, be necessary to refer to the "assault weapon" characteristics in (b)(1) to determine which firearms are "patterned after" other "assault weapons" pursuant to sect. 38‑130(h)(4) and (h)(5).

1. "A Shorter Length than Recreational Firearms."

The ordinance asserts that "assault weapons" have "A shorter length than recreational firearms." Colorado argued that the ban on firearms of "a shorter length" was void for vagueness for the same reason that a law against loitering "about" school grounds was void: because no specific distance or length was specified, the law could not be interpreted "with any degree of certainty." People in the Interest of C.M., 630 P.2d 593, 595‑96 (Colo. 1981).

Defendants respond by offering a set of calculations based on the firearms pictured in Gun Digest. Defendants calculate that a "military" firearm has an average length of 37.67 inches, whereas a "sporting" firearm has an average length of 41.44 inches (Defs. rep. br., 29‑30).[11] The cut‑off in length between a "sporting" firearm and an "assault weapon" is therefore apparently somewhere between 37.67 and 41.44 inches, but defendants still do not specify where. And of course the vagueness of the ordinance must be judged on the language of the ordinance, and not upon defendants' attempt to amend a qualification regarding firearms length via their brief. Moreover, it is rather difficult to see what rational interest (or compelling interest), defendants have in banning rifles that are less than 4 inches, about 10%, shorter than unbanned "sporting" rifles.

Colorado had argued that the vagueness of the definition of "assault weapon" raised the possibility that the prohibition could be arbitrarily applied against many different firearms. In the argument about length, defendants illustrate the elastic approach to the prohibition that they intend to apply. "Autoloader" is another term for "semiautomatic." (When the trigger is squeezed, one shot is fired, and the next shot is automatically loaded, ready for the next trigger squeeze.) Defendants figure the length of "assault weapons" not by calculating the length of the guns specifically banned by the ordinance, but rather by calculating the length of every rifle listed in Gun Digest under the heading "Centerfire Rifles ‑‑ Military Style Autoloaders."[12] Defendants then announce that they consider the guns listed in that section of Gun Digest to perhaps be illegal "assault weapons." Defendants write: "Military style auto loaders, i.e., assault weapons, generally have shorter lengths than sporting weapons."[13] There are dozens of firearms listed in the section of Gun Digest used by defendants which are not even arguably banned under the trade name and trademark list in subsection 38‑130(h); defendants now apparently claim that these unlisted guns may fit the general characteristics of assault weapons. The new claim highlights not only the vagueness of the language of the ordinance, but the caprice and latitude which defendants give themselves in applying the ordinance.

In addition, defendants' assertion that their ban is permissible because it applies to only a very narrow set of firearms is belied by their reference of Gun Digest. The 1990 edition of Gun Digest book lists 56 semi‑automatic centerfire rifles, 46 in the "military style" category, and 10 in the "sporting" category. Gun Digest (1990), defs. rep. br., ex. R, at 305‑14. Of those 56 rifles, defendants interpret 33 as being directly outlawed by the ordinance. By defendants' new definition that all "military style autoloaders" are "assault weapons" (except for the M‑1 Garand, which defendants state is not included), only 11 of the 56 semi‑automatic rifles are not banned. Thus, defendants have directly outlawed 3/5 of centerfire semiautomatic rifles, and by their new expanded definition of "assault weapon" may have outlawed 4/5.

Defendants suggest that the Florida case of Rinzler v. Carson, 262 So. 2d 661 (Fla. 1972) stands for the proposition that a blanket prohibition on semiautomatics would be unconstitutional (Defs. rep. br., at 12). Although defendants argue that their ordinance is only a narrow ban on a few semiautomatics, in regards to rifles, defendants have come quite close to a comprehensive prohibition (Defs. rep. br., at 9 ["narrow restriction on a few firearms"]

2. Rate of fire.

Just as the ban on firearms that had an unspecified "shorter length" was vague, Colorado argued, so was the ban on firearms that has "a greater rate of fire than reasonably necessary for legitimate sports, recreational or protection activities." If a particular rate of fire made a gun illegitimate, Colorado argued, the ordinance should have specified the rate. Defendants do not respond to this argument.

3. "Military Features."

While the ordinance had listed one set of characteristics for "assault weapons," defendants in their brief for summary judgment listed a different set of characteristics. Colorado argued that the two different lists of characteristics created a problem of vagueness, since Denverites would not know if their guns were illegal based on the features listed in the ordinance, or based on the features listed in defendants' brief. Defendants respond by stating that the list of features in their brief elucidates the features of what the ordinance calls a "modification of an automatic firearm originally designed for military use" (Defs. rep. br., at 31).

Defendants do not address the argument of Colorado that the features such as a flash suppressor, which defendants consider the mark of an illegal firearm, make the firearm well‑suited for civil and personal defense. A flash suppressor reduces the "flash" from a rifle shot. Reduced flash decreases shooter's blindness ‑‑ the momentary blindness caused by the sudden flash of light. See Johnson aff., at 4, Colo. ex. 51 (U.S. government expert in assault weapon classification). Additionally, reduced flash means that a person shooting at an attacker at night will less markedly reveal his own position. The value of concealed night fire in civil defense is obvious; and the value of reducing shooter's blindness is both civil and self‑defense contexts is also clear.

Defendants do not address Colorado's argument that shorter firearms (either shorter by overall length, or because of a folding stock) are highly‑suited for defense because they are more maneuverable in a confined setting such as a home, and harder for an attacker to take away. Defendants do note that a shorter firearm is more concealable, and that "This type of regulation has been approved in the past as short rifles and shotguns are illegal for the same reason. See sect. 18‑12‑102, 8B C.R.S. (1986)" (Defs. rep. br., at 30). Actually, short‑barrelled rifles and shotguns are not illegal. They may be possessed as long as one has a license. Significantly, the instant case does not involve the licensing of firearms, but rather their prohibition.[14] There is no Colorado case upholding the prohibition (rather than the licensing) of any type of firearm; for defendants' ordinance is the first in the history of Colorado that has attempted to prohibit any type of firearm.

B. Design history of pistols.

Colorado in it summary judgment brief argued that citizens could not be expected to research the design history of their firearms, and the design history of the firearms that their gun was designed from. Hence, the ban on "All semiautomatic pistols that are modifications of rifles having the same make, caliber and action and no rear stock or modifications of automatic weapons originally designed to accept magazines with a capacity of twenty‑one (21) or more rounds" was vague. Sect. 38‑130(b)(1)c. Colorado further argued that even if a person could research the design history of her pistol, she would face the daunting task of determining whether her pistol had "the same" action as the pistol's ancestor rifle; the task would be particularly difficult since a rifle's action is often modified before being incorporated into a pistol. The gun‑owner would have to know what kind of action the rifle had, how the pistol action differed, and whether the difference was substantial enough so that the action was no longer "the same."

Defendants' reply is only to point out that one of the two pistols which they can identify as covered by this subsection "clearly has the appearance of a scaled down military rifle" (Defs. rep. br., at 12). Defendants' reply illustrates the chilling effect of the vague provisions of the ordinance. In order to avoid possessing pistols which have the difficult‑to‑discover characteristics defined in subsection c., persons will have to avoid all pistols which could be construed by defendants have having the appearance of a scaled down military rifle. There are approximately a dozen such pistols pictured in the 1991 Gun Digest and Denverites, to steer clear of defendants' interpretation of subsection c., will have to avoid them all.[15]

C. Magazines that do not fit semiautomatics.

Regarding the definition of illegal magazines, Colorado had pointed out that it was unclear whether magazines for the automatic "Lewis gun," which do not fit any semi‑automatic firearm, are banned. Defendants state that such magazine is not banned (Defs. rep. br., at 32‑33). Accordingly, defendants' counsel would do well formally to retract the statement he made at a public hearing where he stated that all magazines holding 21 or more rounds are illegal (Dec. 18, 1989 meeting tr., at 1‑6, Colo. ex. 22).

D. Contradiction between the 1898 and the 1954 exemption.

Colorado had pointed out that the exemption of "all weapons that were in production before 1898" and of "all semiautomatic weapons in production prior to 1954" was contradictory and raised the possibility of abusive enforcement. Defendants reply that the 1898 date "may be surplusage and of little or no effect" (Defs. rep. br., at 33). Defendants' statement does not address the problem that an officer could switch at will between the 1898 exemption on "all weapons" and the 1954 exemption of "all semiautomatic weapons," creating uncertainty for persons who own non‑semiautomatic weapons produced between 1898 and 1954. Indeed, by stating that the 1898 may be of "little" effect, defendants leave the community still wondering what the possible "little" effect of the contradictory dates might be.

III. THE EXEMPTION FOR POLICE OFFICERS IS IRRATIONAL AND REPUGNANT TO THE CONSTITUTION.

Colorado had argued in its summary judgment brief that defendant Denver police chief Zavaras had applied the ordinance rather loosely regarding his own police officers. The ordinance permits possession of unregistered "assault weapons" by "sworn members" of "federal, state or local government" agencies who are "acting within their official capacities." Sect. 38‑130(e)(1). Colorado had pointed out that defendant Zavaras had allowed all police officers to possess unregistered "assault weapons" without any proof that such possession was in an official capacity. Defendants reply that "Police officers are on duty 24 hours a day. It may be necessary for these officers to use their privately owned weapons in their duties" (Defs. rep. br., at 33).

Colorado did not and does not argue that the broad administrative exemption of private "assault weapons" of police officers clearly violates the ordinance. Rather, defendant Zavaras' generous and elastic interpretation of the police exemption, coupled with his severe and elastic interpretation of which guns are banned from ordinary citizens (as discussed elsewhere in Colorado's briefs), highlights the risk that the vague language of the ordinance will be applied capriciously.

Colorado had also argued that it was irrational for the ordinance to assert that the banned firearms have "a greater rate of fire or firing capacity than reasonably necessary ... for protection activities" and simultaneously to allow police to possess the firearms. Sect. 38‑130(b)(1). The only reason for police to possess firearms is for protection activities. It is irrational to ban firearms under the grounds that they are not suitable for protection, and to simultaneously allow the police to use them. Defendants do not respond to this argument.

Colorado had also argued that allowing the government but not the people to own weapons which are described as offensive, designed for mass murder, and not necessary for protection, is repugnant to the Constitutional rule of Article II, sect. 1 that the government is the servant of the people, and not their master. A society where the police have offensive weapons, and the people are disarmed, is a police state, not a free society. Defendants do not respond to this argument.

IV. THE CONDITIONS UNDER WHICH PERSONS MAY POSSESS REGISTERED FIREARMS ARE VAGUE OR IRRATIONALLY BURDENSOME.

A. Defendants have voluntarily corrected some of the vague or irrational provisions.

1. The permit that states "This is not a permit" is being corrected.

Colorado had pointed out that the provision allowing registered owners of "assault weapons" to continue to possess their arms was vague because the registration form which people were actually given stated "This is not a permit" (Colo. sum. j. br., at 60‑61). Defendants have announced that they will mail all registrants an actual permit (Defs. rep. br., at 34). Once the permit is mailed, the vagueness problem will be cured, and Colorado thanks defendants for making the correction.

2. The codified ordinance is being corrected to include a necessary cross‑reference

Colorado had pointed out that the provision regarding the conditions under which registrants may possess their "assault weapons" was vague because the codified version of the ordinance omits a necessary cross‑reference to the number of another ordinance (Colo. sum. j. br., at 61‑64). Defendants have announced that they will correct the codified version of the ordinance (Defs. rep. br., at 34). Thanks to the correction, the vagueness defect will be cured, at least for conduct occurring after the recodification. Colorado respectfully suggests that Defendants also correct the numerous typographic inconsistencies between the codified ordinance and the official copy. (None of the inconsistencies appear to be legally significant.) Colorado also wonders why defendants did not move to correct the ordinance shortly after December 12, 1990, when the omission of the cross‑reference was brought to their attention at a deposition.

3. The ban on repair has been lifted.

Colorado had argued that the ban on the repair of registered firearms was irrational (Colo. sum. j. br, at 64‑65). Defendants' counsel had told a public meeting of firearms dealers that he interpreted the ordinance as banning repair (Dec. 18, 1989 meeting tr., at 32, Colo. ex. 22). Defendants in their reply brief retract their interpretation that the ordinance outlaws repair (Defs. rep. br., at 37‑38).[16]

Since persons engaged in the business of firearms repair cannot reasonably be expected to monitor defendants' briefs, defendants would do well to mail a notice of retraction to Denver repair businesses.

While the above steps represent progress in reform of the vague or irrational provisions, a number of problems remain, as detailed infra.

B. The prohibition on moving a registered firearm to a new address is irrational.

Under the ordinance, persons may carry registered "assault weapons" if they are also "carrying a permit issued under subsection (f) for the purposes and under the conditions set forth in subsections (b)(2) to (b)(5), [of sect. 38‑118] Revised Municipal Code." Sect. 38‑130(e)(3). Subsections (b)(1) to (b)(6) of section 38‑118 list the conditions under which a person may carry a firearm without a permit. In other words, sect. 38‑130(e)(3) states that the reasons given in sect. 38‑130(b)(2) to (b)(5) are the purposes for which one can carry a registered "assault weapon."

Subsection (b)(6) was omitted from the list; that subsection allows a person to carry a firearm in order to move it from one residence to a new residence. Because (b)(6) was omitted from the list of reasons for which a person could carry a registered "assault weapon," Colorado argued that the registered firearm could not be moved to a new house, and that the prohibition on moving was irrational (Colo. sum. j. br., at 65‑66).

Defendants reply by contending that a separate subsection of the ordinance authorizes moving. Defendants quote subsection 38‑130(f)(2), which states: "The place of storage and possession shall not be changed without notification of the Department of the proposed change in location and when such weapon will be transported." Defendants argue that this section "specifically authorizes the movement of the weapon from one location to another for permanent storage" (Defs. rep. br., at 36).

Defendants' argument is at odds with the language of the ordinance. Subsection (f)(2) does not authorize anything; it requires persons who wish to change where the weapon is stored and possessed to notify the police in advance. The subsection does not list or add any reason for which transportation is authorized.

C. The possible requirement that a person receive police permission before taking the gun hunting or target shooting is irrational.

Subsection (f)(2) requires prior notification of a "proposed change" in where the registered firearm will be in "storage and possession." Accordingly, Colorado argued that the ordinance could be read to require police notification before changing the place of possession of a registered firearm, as by taking it to a shooting range for an afternoon (Colo. sum. j. br., at 70‑72).

Defendants do not disagree with Colorado's conclusion that such a requirement would be irrationally burdensome. Instead, defendants argue that such notification is not required. First, they contend that (f)(2) "specifically" refers to "permanent storage." (Defs. rep. br., at 36.) To the contrary, there is no limiting reference in (f)(2) to "permanent" storage.

Second, defendants point back to subsection (e)(3) of the ordinance, which, by cross‑reference to another ordinance, allows a registered firearm to be transported for hunting or target shooting (Defs. rep. br., at 35).[17] Yet defendants' citation to the other subsection of the ordinance is unpersuasive. The fact that one subsection allows transportation of a registered firearm to a target shooting range is not inconsistent with a different subsection's requirement that the police be notified before such transportation. Moreover, defendants' claim that the notification requirement only applies to changes in "permanent storage" of the gun fails to address the fact that the notification requirement applies to changes in "storage and possession." It would not be implausible to read the phrase "storage and possession," as defendants suggest, to apply only to possession in conjunction with storage. At the same time, it would not be implausible to reason that if the ordinance applied only to permanent storage, the ordinance would have said "permanent storage" rather than "storage and possession." This Court could cure the ambiguity by declaring "storage and possession" to refer only to permanent storage. Sect. 38‑130(f)(2).

D. The Ban on Sales is Vague.

The ordinance makes it "unlawful to sell or transfer possession of an assault weapon" within the City and County of Denver. ' 38‑130(g). Pointing to the dictionary definition of "sell," Colorado argued that the ordinance was vague in that it could be construed to ban merely advertising a registered firearm for sale in a Denver newspaper, even if the actual transfer of possession took place outside the city limits (Colo. sum. j. br., at 73‑74).

Defendants reply, "The use of the term 'sell' in conjunction with 'transfer of possession' establishes that the transaction controlled by this subsection does not relate to a mere offer to sell but only to the actual sale and transfer of possession" (Defs. rep. br., at 38).

But defendants misstate the ordinance; the word "sell" is not used in "conjunction" with "transfer possession." The word "sell" is used in disjunction with "transfer possession." That is to say, the ordinance makes it illegal to "sell or transfer possession." ' 38‑130(g) (emphasis added).

The above issues regarding moving a firearm to a new address, notification before target shooting, and advertising a firearm for sale all involve fairly technical analysis of the ordinance. Colorado does not suggest that defendants will prosecute every person who goes target shooting without permission. Rather, the ordinance as currently written allows a police officer or prosecutor who is feeling antagonistic to bring such a prosecution. By criminalizing so much legitimate conduct (moving a registered gun, target shooting without permission, or advertising a registered gun for sale), defendants have created the risk that some people engaged in legitimate conduct will be capriciously prosecuted, most likely because they have antagonized the authorities for some other reason.

E. The Prohibition of use of Registered Firearms for Self‑defense is Irrational, and Violates Article II, Section 3 of the Constitution.

The most serious Constitutional problem in the ordinance's regulation of registered owners does not involve vagueness. The ordinance criminalizes use of a lawfully‑registered firearm for lawful self‑defense.

Colorado in its summary judgment brief pointed out that the ordinance allows registered firearms to be used for the purposes set forth in "(b)(2) through (b)(5)" of another ordinance (sect. 38‑118). Conspicuous by omission from the list of legitimate uses is (b)(1) ‑‑ use of a firearm "In defense of home, person or property, when in such home there is a direct and immediate threat thereto." Colorado argued that the ban on defense violated Article II, ' 3 of the state Constitution, which declares "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..." Art. II, sect. 3. Colorado further argued that the deliberate omission of authorization to use a registered firearm for self‑defense belied defendants' assertions that they did not intend to interfere with the right of bearing arms for self‑defense (Colo. sum. j. br., at 67‑68). Defendants offer no reply in their brief.

V. THE BAN ON FIREARMS BY TRADE NAME AND TRADEMARK VIOLATES EQUAL PROTECTION. BECAUSE MANY OF THE BANNED GUNS ARE NOT SEMIAUTOMATIC OR DO NOT EXIST, THE BAN IS ALSO VAGUE.

A. Outlawing Products by Name rather than by Characteristic Violates Equal protection.

Colorado in its summary judgment brief had argued that even if a generic ban on "assault weapons" were Constitutional, a ban on specific guns by trade name and trademark was not. Singling out some gun manufacturers for a ban while leaving manufacturers of functionally identical firearms undisturbed was a violation of equal protection, Colorado argued (Colo. sum. j. br., at 78‑80). Colorado pointed out that the Ruger Mini‑14, a semiautomatic version of an automatic assault rifle, was not banned, even though it had been used to murder two FBI agents in a Florida shoot‑out (Colo. sum. j. br., at 78). Notably, Ruger is a powerful and large American manufacturer, while almost all of the guns banned are made by foreign companies, or by small and obscure American ones.[18] Colorado argued that the discrimination in favor of large American companies like Ruger, and against small or foreign companies, was unconstitutional.

In arguing that the classification of guns by name rather than by characteristic is lawful, defendants cite zoning cases affirming a city's discretion in line drawing. Defs. rep. br., at 27. Because those cases (unlike the instant one) involved no fundamental right, the rational basis test was used. Even under rational basis, defendants' use of names rather than characteristics cannot survive. For example, the city Belle Terre drew a line between unmarried households of two persons, and larger households. Village of Belle Terre v. Boraas, 416 U.S. 1, 8 (1974). The city in Zavala drew a line between married couples and unmarried couples. Zavala v. City and County of Denver, 759 P.2d 664 (Colo. 1988). Subsection (h) of the ordinance does not classify by rational distinctions such as household size or marital status; it classifies by name. Under defendants' zoning analogy, the instant ordinance is like a bill forbidding all persons named "Garcia, Madison, Carr, or Schlesinger," from living in a particular neighborhood.

In support of the claim that firearms manufacturers have the same right to equal protection as any other business, Colorado wrote:

Several decades ago, the legislature attempted similar discrimination by enacting a law forbidding the sale of merchandise, including guns, at less than the full retail price. The Colorado Supreme Court struck down the statute because the statute ‑‑ like the instant ordinance ‑‑ discriminated against legitimate commerce and violated the due process guarantee of the Constitution. Olin Mathieson Chemical Corp. v. Francis, 134 Colo. 160, 301 P.2d 139 (1956). The court noted that firearms manufacture and sales enjoyed the same protection from arbitrary discrimination as any other trade. "The right to carry on a legitimate business is a property right, and it cannot be taken away or abridged by an exercise of the police power.... Can it be said that the retail sale of Winchester arms or ammunition is different from the sale of milk, meat, bakery good [sic, goods], shoes and other everyday essentials? We think not." Id. at 145‑46. A city may no more outlaw firearms by trade name than it may outlaw milk or shoes by trade name.

(Colo. sum. j. br., at 79).

Defendants take great exception to Colorado's use of the Olin case. They note that the two sentences quoted by Colorado appear on different pages (as the pinpoint cite indicated), and claim that "connecting the first sentence with just an ellipsis to a second quote taken out of context is an attempt to commit a fraud upon the Court. The second sentence has little meaning to the issues here once it is placed in its appropriate context" (Defs. rep. br., at 28).

Colorado suggests that there was nothing fraudulent about the quotation, and that both the first and second parts of the quote mean just what they say. The first quote announces the general rule that the right to carry on a legitimate business cannot be taken away. What follows then (and was omitted by the ellipsis) is a two‑part test setting up an exception to the rule (discussed infra); a discussion of two cases upholding price‑fixing, which the Court distinguished; and discussion of United States Supreme Court cases about price‑fixing of gasoline and ice, and a Georgia case about price‑fixing of milk. The Court then concluded, with language quoted in Colorado's brief, "Can it be said that the retail sale of Winchester arms or ammunition is different from the sale of milk, meat, bakery goods, shoes and other everyday essentials? We think not." 301 P.2d 145‑46. While defendants apparently think that the first and second statements quoted by Colorado are unrelated, they are actually the starting point and conclusion of the Court's reasoning. After setting forth the appropriate test, the Court looked to other cases involving similar issues, found persuasive the cases barring price‑fixing of common household items such as milk, and then concluded that the rule barred price‑fixing of firearms because firearms were no different from milk and "other everyday essentials." Although defendants condemn "a fraud upon the Court," Colorado suggests that Olin stands for precisely the rule that Colorado first stated, that the firearms business enjoys the same protection from discrimination as any other business.

The general rule that the right to carry on a business is a property right that cannot be taken away (which Colorado quoted) was followed by a two‑part test for an exception (which Colorado did not quote). Defendants therefore accuse Colorado of "a misstatement of the law of the case" (Defs. rep. br., at 28). The exception for when the right to carry on a business may be infringed is: "first, that the interests of the public generally, as distinguished from those of a particular class, require such interference, and second, that the means are reasonably necessary to the accomplishment of the purpose and not unduly oppressive upon individuals." Olin, at 145, quoting Lawton v. Steele, 152 U.S. 133 (1894).

Having made so much of the exception to the rule, defendants simply assert that they meet the exception: "The Ordinance meets this standard. The public purpose of the Ordinance has been clearly shown and the means used are reasonably calculated to reach that goal. (See Part II, supra.)" (Defs. rep. br., at 28). But defendants' reply misses the whole point. Part II of their brief is a general argument about why a ban on "assault weapons" is Constitutional; that issue has nothing to do with the Olin equal protection argument. Assuming that a prohibition on "assault weapons" is in the public interest, defendants must show why banning guns by trade name (and not by characteristic) is in the public interest; and why discrimination in favor of large American "assault weapon" manufacturers such as Ruger serves "the interests of the public generally, as distinguished from those of a particular class." Olin, at 145. This is precisely the showing that defendants have never attempted to make. Accordingly, even if the ordinance in general were found Constitutional, subsection (h) must be stricken as violating the equal protection guarantee of Article II, sect. 25 of the Colorado Constitution.

B. Defendants' Expert and Reference Manuals Confirm that Many of the Banned Semiautomatics are Not Semiautomatic or Do Not Exist.

Colorado in its brief analyzed the 53 firearms banned by name. Many were found not to be semiautomatic or to have never existed. Colorado could find no evidence that several others did exist. One other gun banned was specifically exempted from the ban by subsection 38‑130(c)(1), and one other was exactly identical (except by name) to dozens of other models that were not banned (Colo. sum. j. br., at 75‑77, 81‑92).

Defendants by way of reply offer an affidavit from R.J. Barnes, a former official with the Bureau of Alcohol, Tobacco and Firearms (Defs. rep. br., ex. T). Mr. Barnes was a mid‑level enforcement official with B.A.T.F.; he held a relatively modest position of authority, and has never published any articles or written any manuals regarding his field of expertise. In contrast, Colorado's expert, Mr. Johnson, authored the official Defense Intelligence Agency reference manuals regarding identification of assault weapons.[19]

Defendants also point to a book by author Duncan Long, Assault Pistols, Rifles and Submachine Guns (1986) (Defs. rep. br., ex. U). Together, the Barnes affidavit and the Long book confirm that the ordinances misnames several of the semiautomatic firearms it purports to ban. Defendants assure the court "All of the listed weapons exist" (Defs. rep. br., at 38). In truth, defendants' new sources either agree or do not dispute that 3 of the banned guns are not semiautomatic, that 4 others do not exist, and that the ban on 1 other is irrational. Defendants' experts supply evidence not previously shown by defendants that some others of the named guns are actually existing semiautomatics.[20] Defendants challenge Colorado's arguments regarding the proper naming of 16 other guns.

The discussion below focuses only on firearms about which there is a problem in proper identification. Firearms which all parties agree are existing semiautomatics are not discussed. The letters preceding each name (e.g. "a. Norinco...") correspond to the subsection in the ordinance.

1. Rifles

a. Norinco, Mitchell and Poly Technologies Avtomat Kalashnikovs (all models).

Colorado in its summary judgment brief quoted the affidavit of the federal government's expert in assault weapon identification, Mr. Harold Johnson. Mr. Johnson stated "All 'avtomat [i.e. automatic] Kalashnikovs are machineguns... Semiautomatics with the cosmetic appearance of the above are known as 'AKS," 'AK47S,' and similar names" (Johnson aff., Colo. ex. 1, at 6 [parenthetical in original]). In other words, semiautomatic Kalashnikov rifles sometimes have a variant of the name "AK," whereas the phrase "Avtomat Kalashnikov" applies only to automatic firearms. What defendants apparently meant to do was outlaw semiautomatic Kalashnikovs ("AKS" etc.), but defendants in fact named only automatic Kalashnikovs ("Avtomat Kalashnikovs").

Defendants seem to attempt to evade their mistake by implying that they actually named the "AK" in their ordinance. Defendants write: "For example, the Ordinance bans 'all models of Avtomat Kalashnikovs' ('AK')" (Defs. rep. br., at 39). Defendants' addition notwithstanding, the ordinance refers only to "Avtomat Kalashniknovs" and nowhere mentions "AK."

Defendants also point to the Long book for proof that semiautomatic Kalashnikovs exist, a fact which Colorado has never disputed (Defs. rep. br., at 39). Defendants neglect to mention that in 10 pages of descriptions of all types of Kalashnikovs and Kalashnikov variants, the only gun that Long describes as an "Avtomat" Kalashnikov is the automatic Kalashnikov used by the Soviet military (Long, at 89, defs. rep. br., ex. U).[21]

c. Beretta AR‑70 (SC‑70).

Colorado's federal expert noted that the "AR‑70" is an automatic. The semiautomatic version is called an "AR‑70 Sporter" (Colo. sum. j. br., at 83).

Defendant's expert replies that the AR‑70 is a semiautomatic (Barnes aff., defs. rep. br., ex. U). Defendants' Duncan Long book distinguishes the automatic "AR‑70" from the semiautomatic "AR70/SPORT" (Long, at 64, defs. rep. br., ex. U). If the court finds defendants' expert to be more persuasive than both the federal government's expert in assault weapons classification and the assault weapons book cited by defendant as authoritative, then item c. names an existing semiautomatic rifle.

d. CETME G3.

Colorado's expert Mr. Johnson had stated that while CETME is a real Spanish company, and the G3 is a real German gun, there is no "CETME G3" (Colo. sum. j. br., at 83). Defendants point out, correctly, that the G3 was invented by CETME, and was licensed to a German company, which is the producer of G3s (Defs. rep. br., at 39‑40).

The fact is of no avail to defendants. CETME does not make the G3; Heckler and Koch, a German company does. CETME has never produced and sold to the public a gun called the "G3." Long, at 70‑71, 83‑87. (Discussion of CETME and Heckler & Koch rifles, "in 1954 the Germans purchased a license to manufacture the CETME in Germany; this modified rifle became the G3.") The name "G3" was added by the Germans, after they had modified the Spanish prototype; "G3" is short for "Gewehr 3," and "Gewehr" is German for rifle. I. Hogg, The Illustrated Firearms Encyclopedia 108, 182 (1978), Colo. ex. 49.

Defendants' expert states that the G3 "is still popularly referred to as the CETME" (Barnes aff., defs. rep. br., ex. T). This fact is similarly unavailing to defendants. Kodak photocopy machines are often popularly referred to as "Xerox" machines. But in legal terms, Kodak photocopiers are not "Xerox" machines (and would not be "Xerox" machines even if Xerox had sold its photocopying patents to Kodak).

e. Colt AR‑15 and CAR‑15.

Colorado's expert stated that the "AR‑15" and "CAR‑15" are both automatics (Johnson aff., at 6, Colo. ex. 1). Defendant responds by asserting that "The 1990 Gun Digest shows five models of semi‑automatic AR‑15's" (Defs. rep. br., at 39). This simply ignores the analysis which Colorado had already offered in its summary judgment brief; namely, that although there are semiautomatic variants of the AR‑15, they have names such as "AR‑15 A2 Sporter Rifle" or "AR‑15 A2 H‑Bar" (Colo. sum. j. br., at 84). The semiautomatic versions are never properly referred to as "AR‑15" or "CAR‑15," and defendants' own authorities agree. Defendants' expert Mr. Barnes describes the "AR‑15" and the "CAR‑15" as a "selective fire weapon" and "our standard military rifle." (All "selective fire" weapons can fire automatically or semiautomatically, by use of the selector switch.) Mr. Barnes adds that "Colt later produced a commercial semi‑automatic version of the M16 designated the AR‑15 Sporter" (Barnes aff., defs. rep. br., ex. T). Likewise, after a lengthy description of the design history of the automatic AR‑15, Duncan Long observes that "Domestically, Colt has marketed the semiautomatic AR‑15 Sporter Rifle" and the "AR‑15 Sporter Carbine" (Long, at 58, defs. rep. br., ex. U).

Finally, it should be noted that the Plaintiffs' brief for summary judgment included a thorough discussion of the AR‑15, pointing to United States Supreme Court, Seventh Circuit, Ninth Circuit, and federal district of Colorado cases ‑‑ as well as to a report of the U.S. House Committee on Armed Services and a book about the AR‑15 written by the Smithsonian Institution's firearms curator ‑‑ all of which referred to the AR‑15 as exclusively an automatic (Plaintiffs' memo. in support of sum. j., at 55‑58). Defendants do not refute any of these authorities.

f. Daewoo K‑1, K‑2, Max 1 and Max 2.

Colorado had stated that these firearms are fully automatic, not semiautomatic (Colo. sum. j. br., at 84). The Duncan Long book states that the Max 1 and Max 2 are semiautomatic versions of the automatic "K1A1" and "K1A2" (Long, at 72, defs. rep. br., ex. U).[22] To Colorado, it appears that the Max 1 and Max 2 are semiautomatic, and the K‑1 and K‑2 are not.

Colorado in its summary judgment brief had also noted that defendants consider the Daewoo "AR100 Auto Rifle" and "AR110C Auto Carbine" to be directly outlawed by the ban on the "K‑1, K‑2, Max 1 and Max 2." Colorado suggested that defendants had demonstrated the serious "danger of arbitrary and capricious enforcement" of the ordinance (Colo. sum. j. br., at 85). In the reply brief, defendants repeat their assertion that the "AR100" and "AR110C" are banned by subsection f. (Defs. rep. br., ex. X, at 1) (reference to "Page 307 of the 1990 Gun Digest" as containing pictures of the banned "Daewoo K‑1, K‑2, Max 1 and Max 2." None of those guns is listed on that page, but the AR100 and AR110C are. Colo. ex. 30, at 307.) Defendants do not explain how persons are supposed to know that the "AR100" is directly outlawed by the ban on "K‑1, K‑2, Max 1 and Max 2."

g. Fabrique Nationale (FN/FAL, FN/LAR and FNC.

Defendant's expert describes the FN/FAL as "a selective fire military weapon." He states that the LAR and FNC "are semiautomatic rifles incorporating many features fund [sic] in the FAL" (Barnes aff., defs. rep. br., ex. T). Duncan Long describes the FAL, the LAR, and the FNC as all being automatic. More precisely detailing what Mr. Barnes may be referring to in his affidavit, Long notes that the American company Springfield Armory "is importing FN LAR parts and assembling them on their own receivers. These rifles are offered in several styles under the trade name of SAR‑48." Most SAR‑48s, Long adds, are semiautomatic (Long, at 77‑82). (The SAR‑48 is separately banned by the ordinance.)

"FN" is Fabrique Nationale, a Belgian company. One of Fabrique Nationale's importers states that it "previously imported FN‑LAR and FNC parts and accessories. 'FN' means 'Fabrique Nationale,' and 'LAR' means 'Light Automatic Rifle.' The rifles commonly known as 'Fabrique Nationale FN/FAL, FN/LAR, and FNC' are fully automatics machineguns. These terms are not descriptive of semiautomatic rifles." Wood aff., at 3, Colo. ex. 54.

In short, every source, including defendants' own, agrees that the FN/FAL is an automatic. The status of the LAR and FNC is less clear, although both the federal expert in assault weapons, a Fabrique Nationale importer, and defendants' own reference manual consider these guns automatic.

i. Heckler & Koch H‑93.

Defendants' expert correctly notes "H‑93 appears to be a typographical error and should be HK‑93" (Barnes aff., defs. rep. br. ex. T). If defendants make the suggested correction by amendment, they will have named an existing semiautomatic rifle. As the ordinance is currently written, "H‑93" refers to nothing that exists. The attempt to ban the HK‑93 by calling it the H‑93 is no more legal than the ban on "3,4‑ methylenedioxymethamphetamine" under the misspelled name "3,4‑ methylenedioxyethamphetamine." See United States v. Caudle, 828 F.2d 1111 (5th Cir. 1987).

For the same reason, defendants' listing of real guns in conjunction with companies that have nothing to do with the guns is defective. For example, defendants could have outlawed the "Striker 12" shotgun (discussed infra). But by calling it the "Gilbert Equipment Company Striker 12," they named a non‑existent gun. The fact that firearms experts such as Mr. Barnes can discern what defendants might have written if defendants had written correctly is irrelevant. Drug dealers certainly were not confused by the government's mistaken addition of one letter to the proper chemical name for a drug. Nevertheless, unless the government names the banned substance correctly, the substance, be it drug or gun, is not banned.

j. MAC 10 and MAC 11.

Mr. Johnson had stated that the "MAC 10" and "MAC 11" are automatics and that cosmetically similar semiautomatics are called "M10" or "M11" (Johnson aff., at 7, Colo. ex. 1). Defendants' expert says the "MAC 10 and MAC 11" are "semi‑automatic carbines," but in describing the development of the guns, he contradicts his assertion. He states "The original firearm was the Military Armament Corp., (MAC) Model 10 and Model 11 submachinegun." In describing the semiautomatic versions, he calls them the "sM10" and "sM11," and the "M‑11" (Barnes aff., defs. rep. br., ex. T (parenthetical in original). For more on the proper names of these guns, see the discussion of the MAC 10 and MAC 11 pistols below.

l. SIG PE‑57.

Colorado had noted that the PE‑57 is not listed in Gun Digest (1991) and Modern Gun Values (books which cumulatively list nearly every non‑automatic firearm that has been produced in this century). The PE‑57 was unknown to Mr. Johnson, the federal government's expert in assault weapons classification (Johnson aff., Colo. ex. 1, at 86). Defendants in their interrogatories were unable to produce any evidence that the PE‑57 exists (Defs. ans. to interrogatories, at 5, Colo. ex. 2).

Defendants in their reply brief have brought forth no evidence of the existence of a semiautomatic rifle called the "PE‑57." Defendants' expert does not attempt to describe the PE‑57 (Barnes aff., defs. rep. br., ex. T). Defendants cite three reference books which they claim discuss the PE‑57, but none of them mention any such gun (Defs. rep. br., ex. X, at 2). The Duncan Long book discusses the SIG "SG57," which is an automatic, not a semiautomatic (Long, at 119, defs. rep. br., ex. U). Colorado suggests that the evidence conclusively demonstrates that the SIG "PE‑57" semiautomatic rifle exists nowhere in the world but in the pages of defendants' ordinance.

o. Steyr AUG.

Mr. Johnson had noted that the "Steyr AUG" is an automatic rifle, and that the cosmetically similar semiautomatic is the "Steyr AUG‑SA" (Johnson aff., at 7, Colo. ex. 1). Defendants' expert Mr. Barnes states that "Steyr AUG" is a "semi‑automatic version of an Austrian made military weapon. The original Steyr A.U.G. was a selective fire weapon capable of both semi‑automatic and fully automatic fire... The semi‑automatic version was designed for importation into the U.S. for commercial sales" (Barnes aff., defs. rep. br., ex. T). All of what Mr. Barnes writes is true, except that he omits the crucial fact relevant to the ordinance: Every one of the semiautomatic versions was, as Mr. Johnson explained, called a "Steyr AUG‑SA." The President of Steyr's exclusive U.S. importer has sworn that all semiautomatics imported from Steyr were called "Steyr AUG‑SA" and were stamped with that identifying name on the receiver. (Wood aff., at 2, Colo. ex. 54.) The Bureau of Alcohol, Tobacco and Firearms, in authorizing the import of the Steyr AUG‑SA, wrote regarding the semiautomatic: "from the beginning of the manufacturing process it is substantially different, with different components, from the automatic AUG rifle." BATF letter of Sept. 20, 1982, quoted in Wood aff., at 2, Colo. ex. 54.

u. Plainfield Machine Company Carbine

All parties have always agreed that Plainfield Machine Company carbine is a semiautomatic carbine identical to all other M‑1 carbines. Since all the other M‑1 carbines, except for Plainfield's, were first produced before 1954, they are exempt from the ban. Colorado in its summary judgment argued that there was no rational reason to ban the Plainfield Carbine alone (Colo. sum. j. br., at 87‑90). Defendants do not reply.

2. Pistols.

c. MAC 10 and MAC 11

Mr. Johnson had stated that "MAC 10" and "MAC 11" are full automatic pistols (Johnson aff., at 8, Colo. ex. 1). All of the evidence introduced by defendants confirms Mr. Johnson's statement. First of all, the gun advertisement introduced by defendants refers to the semiautomatic pistol and carbine (short rifle) versions of these guns as "M‑11," "M‑10," and "M‑9," and not as "MAC‑10" or "MAC‑11" (Defs. sum. j. br., ex. h). Secondly, the gun reference manual introduced by defendants carefully distinguishes the automatic "MAC 10" and "MAC 11" from the semiautomatic "SM10," "SAP M10," "M11", and "M10A1" (Long, at 21. Defs. rep. br., ex. U). Thirdly, defendants' expert Mr. Barnes follows the same distinction. He explains: The Military Armament Corporation (MAC) Model 10 and 11 were submachineguns. When the company went out of business RPB Industries took over and redesigned the Model 10 and 11 making them semi‑automatic sM10 and sM11 pistols ... A new Military Armament Corporation, as [sic, "at"] a different location redesigned the Model 10/2M10 and returned it to the market place as the M10A1S, a semi‑automatic postal [sic]. SWD under the Cobray trademark marketed a M11/9MM semi‑automatic pistol. These firearm are and were commonly referred to as MAC 10's and 11's. (Barnes aff., defs. rep. br., ex. T).

In other words, as Mr. Barnes confirms, the only guns that are properly called "MAC 10" and "MAC 11" are automatics, although common usage sometimes refers to related semiautomatics by those incorrect names. An incorrect usage, no matter how common, cannot change the proper legal meaning; no matter how many people call Kodak photocopiers "Xerox machines," it would be legally improper to ban Kodaks by calling them a "Xerox."

e. Mitchell Arms Spectre Auto

Mr. Johnson had stated that Mitchell Arms had never imported, sold, or manufactured a "Spectre Auto" (Johnson aff., at 8, ex. 1). Defendants' expert Mr. Barnes' calls the gun "A semiautomatic pistol designated Type P" (Barnes aff., defs. rep. br., ex. T). Mr. Barnes' description of the Spectre Auto is correct, but it omits the central fact that the gun has never been sold in any relation to the Mitchell Arms company. Mitchell aff., Colo. ex. 52 (President of Mitchell Arms). Defendants claim that the "Mitchell Arms Spectre Auto" is described in Jack Lewis's The Gun Digest Book of Assault

Weapons. Defs. rep. br., ex. X, at 3. The statement is false. The Gun Digest Book of Assault Weapons, defs. rep. br., ex. V; Jack Lewis aff., at 2, Colo. ex. 48.

g. Calico M‑900

Calico makes an "M‑900 carbine" (short rifle). Calico does not make an M‑900 pistol, as Colorado demonstrated at length in its summary judgment brief.

Defendants cite Jack Lewis's The Gun Digest Book of Assault Weapons as their only documentary source for the existence of the "M‑900" pistol (Defs. rep. br., ex. X, at 3). Jack Lewis explains: "My book does include a test report of the Calico 'M‑900 pistol/carbine.' The book had tested a prototype firearm developed by Calico. Although did Calico eventually did produce an M‑900 carbine, Calico never produced an M‑900 pistol. If my book implies anything to the contrary, the book is incorrect." (Lewis aff., at 2, Colo. ex. 48). Calico's President swears that his company has never produced an M‑900 pistol. Miller aff., Colo. ex. 53.

Defendants' expert Mr. Barnes does assert that there is an M‑900 pistol (Defs. rep. br., ex. T), but in light of the other evidence, the assertion is not credible.

Defendants have also claimed that the ban on the "M‑900" pistol actually applies to the "M‑900 series," and hence outlaws the Calico M‑950 pistol (Colo. sum. j. br., at 91). Defendants again demonstrate their propensity for re‑interpreting the law as they wish they might have written it, rather than as it actually exists.

Defendants' list of banned guns is copied, word for word, typo for typo, from the list of guns banned in California. The California Department of Justice has specifically stated that the Calico M‑950 is not covered by the California ban. Calif. Dept. of Justice letter, attachment to Miller aff., Colo. ex. 53.

3. Shotguns

b. Gilbert Equipment Company Striker 12

Colorado had stated that while there is a gun called the "Striker 12," it has nothing to do with the Gilbert Equipment Company (Johnson aff., at 8, Colo. ex. 1; Tony Van Aken aff., Colo. ex. 20 [officer of G.E.C.]). Defendants' expert provides an accurate description of the Striker 12, and never claims that the gun is associated with the Gilbert Equipment Company (Barnes aff., defs. rep. br., ex. T).

Defendants assert that Jack Lewis's The Gun Digest Book of Assault Weapons contains a description of the "Gilbert Equipment Company Striker 12" (Defs. rep. br., ex. X, at 4). Actually, while the book does describe the Striker 12, the book never maintains that the Gilbert Equipment Company has anything to do with it. The Gun Digest Book of Assault Weapons (2d ed.), ch. 22, defs. rep. br., ex. V; Lewis aff., at 3, Colo. ex. 48.

Colorado had also pointed out that the Striker 12 uses a revolving cylinder, and is hence exempt under subsection 38‑130(c)(1), which exempts "all revolving cylinder weapons" from the ban. Lewis, Id. (Striker 12 uses revolving cylinder).

Defendants do not reply to Colorado's argument.

c. Encom CM‑55

Colorado had stated that this firearm is neither a semiautomatic nor an automatic, but can fire only a single shot and must then be reloaded (Johnson aff., at 8, Colo. ex. 1). Defendants' expert agrees, and describes the gun as "A single barreled single shot shotgun with a vertical hand grip and a vented barrel jacket" (Barnes aff., defs. rep. br., ex. T).

Defendants had stated that their list of banned guns was copied from a list of guns banned in California (Defs. ans. to interrogatories, at 5, Colo. ex. 2). The California list in turn was created by using of a picture book of guns, and deciding from the pictures which ones were military "assault weapons." State of Florida, Commission on Assault Weapons, Report (May 18, 1990), summary of March 18, 1990 meeting, at 3 (Commission member stating that California "chose those weapons from a book of pictures"), Colo. ex. 46. Apparently the unusual hand grip and barrel jacket on the Encom CM‑55 gave it a threatening "military" appearance to the persons examining the California picture book.

But as the mistake regarding the Encom CM‑55 illustrates, a gun's appearance has little to do with its function. A gun like the Encom which seems to have threatening "look," may only be able to fire a single shot. A rifle with a military appearance [like most of those correctly named in subsection (h)(1)] may seem menacing with its black plastic. Appearances to the contrary, the banned guns do not fire faster than non‑banned guns, since all semiautomatics fire at the same rate. Appearances to the contrary, the banned firearms do not have a larger ammunition capacity than other guns. Ammunition capacity depends not on the gun, but on a separate, interchangeable, detachable item called the magazine (see Colo. sum. j. br., at 19‑22). Instead of making a careful inquiry into the actual characteristics of particular firearms, defendants have thoughtlessly copied someone else's interpretation of a picture book. To ban firearms on such a basis (even if the firearms were correctly named) is irrational, is not narrowly tailored, and could not possibly be said to further a compelling state interest.

4. Summary of issues regarding correct names.

Both Colorado and defendants have amply briefed the issue of whether the list of firearms in (h)(1), (h)(2), and (h)(3) is vague or irrational. The following facts have been demonstrated by Colorado, and defendants have either presented confirming evidence, or have not contested the issue: The "Daewoo K‑1" and "K‑2," and the Fabrique Nationale FN/FAL are not semiautomatic, but fully automatic. The Heckler and Koch "H‑93" does not exist, and is a flawed attempt to name the "HK‑93." The "SIG PE‑57" does not exist. The "Plainfield Machine Company Carbine" cannot be rationally distinguished from every other M‑1 carbine, none of which are banned. The Gilbert Equipment Company has never made a gun called the "Striker 12." The Striker 12 made by another company uses a revolving cylinder, and is hence exempted from the ban by ' 38‑130(c)(1). The Encom CM‑55 is not a semiautomatic, but rather a single shot shotgun.

Because there are no contested issues regarding these guns, it would be appropriate for the court to permanently enjoin enforcement of the provisions naming those weapons. Although the fact that defendants have in part named a list of non‑existent "semiautomatic assault weapons" may seem harmless error, as long as the guns are included in the ordinance, there will be a risk that defendants will "creatively," arbitrarily, and capriciously attempt to use the list to ban other firearms. (For example, defendants creatively claim that the ban on the "Daewoo K‑1, K‑2, Max 1 and Max 2" directly outlaws the Daewoo "AR100.")

Regarding the following issues, Colorado and defendants have disagreed:

Should the prohibition on "Norinco, Mitchell and Poly Technologies Avtomat Kalashnikovs (all models)" be construed to apply to semiautomatics?

Should the ban on the "Beretta AR‑70" be construed to apply to the semiautomatic AR‑70 Sporter?

Although there is no gun properly called the "CETME G3," should the ban on the "CETME G3" be construed to apply to the Heckler & Koch G3, since Heckler and Koch first produced the gun under a licensing agreement with CETME, and since some people call the Heckler & Koch G3 the "CETME G3"?

Although the "Colt AR‑15" and "Colt CAR‑15" are automatic firearms, should these phrases be construed to outlaw semiautomatic variants, such as the "Colt AR‑15 Sporter"?

Should the ban on the "Daewoo K‑1, K‑2, Max 1 and Max 2" be construed to include the Daewoo AR100 and AR110C?

Are the Fabrique Nationale FN/LAR and FNC always automatics, or are they sometimes semiautomatics?

The MAC 10 and MAC 11 carbines and pistols are agreed to be automatics. Semiautomatic variants of these guns are agreed to have other names, such as "M11." Does the fact that popular usage sometimes refers to the semiautomatic "M11" as a "MAC 11" make the "MAC 11" a semiautomatic?

Does "Steyr AUG" refer only to an automatic weapon, or does it also refer to the semiautomatic that is sold with the name "Steyr AUG‑SA"?

Colorado respectfully suggests that the answer to the all of the questions should be "no." In some cases, defendants have shown that their expert (a former mid‑level official with the federal Bureau of Alcohol, Tobacco and Firearms) and Colorado's expert (a former official with the Defense Intelligence Agency who wrote the U.S. government manual on classification of assault weapons) have a disagreement in the interpretation of certain terms ‑‑ such as whether "FN/FNC" is always automatic, or sometimes semiautomatic. In other cases, defendants have no credible argument ‑‑ such as whether the "AR100" is included in the list "K‑1, K‑2, Max 2 and Max 2." Even in the cases where defendants have demonstrated a credible dispute, summary judgment is appropriate for Colorado. The reason is that

The Supreme Court has adopted the rule of lenity as a tool of statutory construction... The rule requires that courts resolve ambiguities in a penal code in the defendant's favor... The rule of lenity is a corollary of the rule of statutory construction that requires penal statutes to be construed against the government... Colorado criminal statutes are to be strictly construed in favor of the accused.

People v. Lowe, 660 P.2d 1261, 1267‑68 (Colo. 1983) (citing, inter alia, United States v. Bass, 404 U.S. 336 (1971), which applied rule of lenity to federal Gun Control Act of 1968). Although the instant case does not involve a criminal prosecution, the ordinance imposes criminal penalties such as a mandatory jail term. Sect. 38‑130(j). Accordingly, judicial economy would suggest this court declare void any provisions which could not survive scrutiny under the rule of lenity in a prosecution.

5. Further Evidence of Vagueness: the Ordinance names only Chinese and Yugoslav Kalashnikovs, but Defendants claim that all Kalashnikovs are Illegal.

Colorado and defendants have both briefed the issue of whether subsections (h)(4) and (h)(5), which ban firearms similar to the ones listed in (h)(1), (h)(2), and (h)(3), are vague. There is no need to elaborate on the discussion of whether the language in (h)(4) and (h)(5) is vague. There is a need, however, to discuss a statement in defendants' reply brief which illustrates the risks of arbitrary and capricious application of the ordinance.

The ordinance's only reference to Kalashnikovs is a ban on "Norinco, Mitchell and Poly Technologies Avtomat Kalashnikovs (all models)." Sect. 38‑130(h)(1)a. As discussed above, defendants construe this phrase to apply to all semiautomatic Kalashnikovs by these manufacturers (even though the ordinance only names "Avtomat" [automatic] Kalashnikovs). At the most, then, subsection (h)(1)a might be construed to apply to semiautomatic Kalashnikovs made by Norinco, Mitchell and Poly Technologies. Yet defendants offer a far broader interpretation: "all semi‑automatic models of the AK's are prohibited by Denver. Various AK models are easily identifiable. See, 1990 Gun Digest, Exhibit 'R' at 309‑310; Long Reference Book, Exhibit 'U' at 89‑98" (Defs. rep. br., at 39).

The Norinco and Poly Technologies Kalashnikovs are made in China, and the Mitchell Kalashnikovs in Yugoslavia. Gun Digest (1990), at 309‑11, Colo. ex. 30. By defendants' interpretation, the ban on "Norinco, Mitchell and Poly Technologies" Kalashnikovs is taken to refer to all Kalashnikovs made anywhere in the world. Defendant cites pages "89‑98" of Duncan Long's book as illustrating the banned Kalashnikovs. The Long book includes not just Chinese and Yugoslav Kalashnikovs, but also Kalashnikovs from countries such as the USSR, Czechoslovakia, Egypt, Hungary, and South Africa. Semiautomatics from Egypt and Hungary have been imported into the United States. Johnson aff., at 5, Colo. ex. 51.

Until defendants filed their reply brief, owners of the Egyptian and Hungarian Kalashnikovs had no reason to think that their guns were illegal. None of these guns had any relation to "Norinco, Mitchell and Poly Technologies," so they would not appear to be outlawed by (h)(1)a. Because the guns were not made or sold by those three manufacturers, they would not be outlawed by (h)(4), which applies to guns nearly identical to the named guns which are made by the same manufacturer. The Egyptian and Hungarian guns are not produced under any "licensing agreement" with Norinco, Mitchell, or Poly Technologies. The Egyptian and Hungarian guns are not "redesigned from, renamed, renumbered or patterned after" the Chinese or Yugoslav guns. Rather, all of the guns, Chinese and other, are redesigned from and patterned after the original Soviet Kalashnikovs. Long, at 89‑98 (Chinese, Egyptian, Hungarian, and Yugoslav Kalashnikovs all developed directly from Soviet models); Johnson aff., at 5, Colo. ex. 51 (same). Thus, the Egyptian and Hungarian Kalashnikovs would not appear to be banned by subsection (h)(5), which bans guns based on whether the manufacturer has a licensing agreement with the manufacturer of a banned gun, and on whether the gun in question is "patterned after" a banned gun.

There appears to be no provision of the ordinance which outlaws the Egyptian, Hungarian, and Yugoslav semiautomatic Kalashnikovs. Yet defendants have announced that owners of such guns are subject to arrest and imprisonment. Defendants have again demonstrated that the ordinance ‑‑ which they wrote and which they are enforcing ‑‑ creates a tremendous danger of arbitrary and capricious enforcement, and should be struck down on due process grounds.

C. The Ban on Magazines which "May Be Modified" to hold 21 or more rounds is Vague.

The ordinance bans magazines (ammunition clips) which "will hold or may be modified to hold twenty‑one or more rounds." 'Sect/38‑130(i). Colorado argued that the magazine ban was vague insofar is it applied to magazines which "may be modified" to hold 21 or more rounds. Colorado argued that any of the following modifications could increase a magazine's ammunition capacity: shortening the follower, removing part of the spring leg(s), replacing a conventional spring with a constant force spring, or removing the baseplate. (The technical citation for magazine modifications is Chestnut affidavit, Colo. ex. 27.)

By way of reply, defendants state: "The Attorney General's changes clearly constitute a modification." Defendants cite the Black's Law Dictionary definition of "modification" for emphasis (Defs. rep. br., at 41). That is just the point. With a slight change in the size of a single internal component such as the follower, a magazine which holds 18‑20 rounds could be modified to hold 21 or more rounds. Thus, the ordinance apparently bans all magazines which hold 18‑20 rounds, because they can be modified to hold 21 rounds; but the ordinance in its vague way, never precisely says so.

VI. THE ORDINANCE VIOLATES COLORADO'S CONSTITUTIONAL AUTHORITY TO MAINTAIN A MILITIA.

Colorado had argued that the militia of the state is defined as all males aged 18‑45, that some militia members were expected to provide their own weapons, that some of the banned rifles are militia weapons, and that the ban on those rifles interferes with the State of Colorado's authority to maintain a militia.

A. The Constitution defines able‑bodied Males aged 18‑45 as Belonging to the Militia.

Defendants' first reply is that males aged 18‑45 are not actually militia members. Defendants write: "First, the Colo. Const., art. XVII, Section 1 refers to persons subject to service in the militia. Contrary to the Attorney General's assertions, this section does not state that all males between the ages of 18‑45 are members of the militia. The clear language of the constitution provides that such persons are only subject to being called to serve in the militia by the governor" (Defs. rep. br., at 41) (emphasis in original).

Although defendants speak insistently about the "clear language of the constitution," they never quote the Constitution, which states: "The militia of the state shall consist of all able‑bodied male residents of the state between the ages of eighteen and forty‑five years; except, such persons as may exempted by the laws of the United States, or of the state." Art. XVII, ' 1.[23]

Although the Constitution explicitly makes all able‑bodied males aged 18‑45 part of the militia, defendants next argue that the three male plaintiffs (all of them able‑bodied males aged 18‑45) are not part of militia because they are not part of the organized militia (the National Guard and the State Defense Force) and are not part of "the unorganized militia." Defendants accuse Colorado of having "improperly quoted" the statute defining the "unorganized militia," but defendants do not specify what was improper about the quotation, and the quotation exactly matches the statutory language (Defs. rep. br., at 42).[24]

Defendants' assertion that the three male plaintiffs do not belong to the unorganized militia is based on the selective omission of statutory language, an omission that leads to the nonsensical assertion that no‑one belongs to the unorganized militia.[25]

Finally, while the instant case involves the Colorado Constitution, and not its federal counterpart, the federal definition of the militia is entirely consistent with Colorado's. Although defendants apparently think that a militia only a uniformed body such as the National Guard, the United States Supreme Court has rejected this view. Interpreting the Constitutional meaning of "a well‑regulated militia," the Court explained that historical evidence "shows plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense... [W]hen called to service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." United States v. Miller, 307 U.S. 174, 179 (1939) (Court held that since defendant had presented no case, Court could find no evidence that a sawed‑off shotgun was of any use in a militia.) The present U.S. Code comports with the Constitution and with Supreme Court understanding. The Code declares: "The militia of the United States consists of all able‑bodied males at least 17 years of age and ... under 45 years of age." The Code distinguishes the "the organized militia, which consists of the National Guard and the Naval Militia" from "the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia." 10 U.S.C.S. sect. 311 (1985).

Defendants never contest Colorado's claim that if males aged 18‑45 are part of the present "unorganized militia" the ordinance interferes with their acquisition of and training in the use of militia arms. Defendants instead, building upon their theory that the "clear language of the constitution" provides that no‑one is a militia member until called into active service, claim that their ordinance "specifically exempts weapons of any sworn members of the state militia acting within their official capacity" (Defs. rep. br., at 43). Defendants seem to misunderstand the nature of militia service; there is no Constitutional or statutory requirement that persons called into active militia service swear any kind of oath. Indeed, defendants' rule that a person called to active militia duty be formally inducted by a ceremony swearing some kind of loyalty oath before being exempted from the ordinance is not only demeaning, but would interfere with the rapid militia deployment that would be necessary in an emergency.

In sum, the Colorado Constitution defines the militia as all able‑bodied males aged 18‑45. Despite defendants' arguments, the Colorado statutes governing the militia do not repeal the Constitutional definition. And the Colorado definition is consistent with the federal definition.

B. The AR‑15 Sporter and similar arms are militia weapons.

Colorado had argued in its brief that the Colt AR‑15 Sporter and similar semiautomatic firearms are militia equipment because they are similar to the automatic AR‑15 rifle used by the U.S. Army; because the U.S. Army sponsors Department of Civilian Marksmanship (D.C.M.) target competitions to encourage civil preparedness; and because the Constitution requires that the militia possess arms that "shall conform as nearly as nearly as practicable" to those possessed by the U.S. armed forces (Colo. sum. j. br., at 103‑06).

Defendants counter by claiming Colorado's contention that the gun ban "conflicts with the Civilian Marksmanship Program ... was expressly rejected in Fresno Rifle and Pistol Club, Inc., v. Van de Kamp, 746 F. Supp. 1415, 1426‑27 (E.D. Ca. 1990)" (Defs. rep. br., at 26). To the contrary, the Fresno case involved no express rejection. What the court said was, "Based on the Court's limited knowledge of firearms, it does not appear that any of the legislatively banned weapons in question here qualify as a weapon to be used in the national competition." In the instant case, this Court does have the information that the Fresno court apparently could not find: that the Colt semiautomatic rifle has been specifically approved for use in the D.C.M. matches, and that some D.C.M. events require use of a 30 round magazine. These facts are contained in the Code of Federal Regulations, in Department of the Army Regulations, and in a letter from the Department of the Army regarding the Colt semiautomatic rifle. The citations are contained in Colo. br. for sum. j., at 34‑35, n.8, and the relevant documents are included in Colorado's exhibits 12, 35, and 36.

C. The militia is partly armed by Private Citizens' Arms.

Finally, defendants suggest that militia members of all types are to be armed only with arms given them by the state, and not with their own private arms (Defs. rep. br., at 43). Defendants' only authority for their proposition is a bare citation to sect. 28‑4‑107, C.R.S. (1989). That statute merely provides that for the state defense force (a component of the organized militia), "the governor is authorized to requisition from the secretary of defense such arms and equipment as may be in the possession of and can be spared by the defense department" (emphasis added). As Colorado noted in its summary judgment brief, the statute does not mandate that the state defense receive only such arms "as can be spared by the defense department." Indeed, during World War II, the State Defense Force was partly armed with private guns donated by the American Legion (Colo. sum. j. br., at 108; Report of the Adjutant General, 1944, available in State Archives).

To demonstrate that the Constitutional system contemplates that the militia may sometimes be privately armed, Colorado had cited the Colorado statutes of 1866 and 1877, which provided that some parts of the militia were required to supply their own private arms (Colo. sum. j. br., at 109). Defendants' reply that "This language is no longer included in the statute" misses the point. Statutes enacted contemporaneously with a Constitution are considered important evidence of Constitutional intent, whether or not the statutes remain in force. See TWisconsin v. Pelican Insurance Co., 127 U.S. 265, 297 (1888), overruled in part on unrelated grounds, Milwaukee v. M. E. White Co., 296 U.S. 268 (1935) (An act "passed by the first Congress assembled under the Constitution, many of whose members had taken part in framing that instrument ... is contemporaneous and weighty evidence of its true meaning."); Marsh v. Chambers, 463 U.S. 783, 787‑90 (1983) (acts of First Congress elucidate meaning of First Amendment establishment clause). See also Bowsher v. Synar, 478 U.S. 714, 723‑24 (1986); Lynch v. Donnelly, 465 U.S. 668, 674 (1984) (Acts of First Congress entitled to "the greatest weight" in Constitutional interpretation); Boers v. Preston, 111 U.S. 252 (1884) (Judiciary Act of 1789 is of "great weight" in interpreting Article III); Uzzell v. Anderson, 38 Colo. 32, 89 P. 785, 787 (1906); TPeople ex rel. Stidger v. Horan, 34 Colo. 304, 86 P. 252, 254 (1905); City Council of Denver v. Board of Commissioners of Adams County, 33 Colo. 1, 77 P. 858, 861 (1904); Frost v. Pfeiffer, 26 Colo. 338, 349‑50 (1899) ("Contemporaneous legislative construction of the fundamental law, while not controlling upon the courts, yet in case of doubt or ambiguity is entitled to great weight...."); People ex rel. Livesay v. Wright, 6 Colo. 92, 97 (1881).

Colorado had also provided evidence from the Reports of the Adjutant General, beginning in the first days of statehood, and continuing until the most recent great military crisis faced by Colorado (World War II), that the militia has been armed in part by private citizens. See also Dowlut & Knoop, "State Constitutions and the Right to Bear Arms," 7 Okla. City. L. Rev. 177, 197‑98, 233‑35 (1982) (During World War II, Governors of Maryland and Virginia called to active militia duty private citizens bearing their own firearms). Defendants do not discuss the historical evidence, but simply assert "The state is to provide weapons to the militia when called to serve" (Defs. rep. br., at 43).

Colorado could if it chose stockpile hundreds of thousands of rifles for distribution to the unorganized militia in case of emergency, but there is no legal requirement that Colorado bear the whole expense of arming the militia, rather than following its current policy of relying on militia members to bring their own arms. Colorado's current policy is also more likely to promote effective militia use of arms, since militia members would bring to active service arms with which they are already familiar and practiced. Defendants' attempt to force on the State of Colorado the entire expense of arming every person in the militia is an interference with State authority of the most basic sort.

The militia article of the Colorado Constitution may perhaps seem arcane to defendants. Happily, there has been no need for the unorganized militia to take the field in this century. Yet defendants cannot prove that the militia will not one day be necessary in a time of great peril. All provisions of a Constitution must be enforced, and the State of Colorado comes to this Court not only to vindicate the right of the People of Colorado to defend themselves, but also the authority of the State of Colorado to have a militia composed of People who will defend the State in an emergency.

CONCLUSION

Comes now the Court to the end of a very lengthy "brief." Colorado thanks the Court for its patience in studying the voluminous briefs of Colorado and the other parties.

Some of the issues discussed in these briefs have been technical (e.g. whether the ordinance's ban on the automatic AR‑15 also applies to the semiautomatic AR‑15 Sporter). These issues are important because all laws, especially criminal laws, must be clear and comprehensible.

The basic issues in this case, however, is not whether certain guns are named correctly, or what the rules are regarding possession of registered guns. Rather, the central issue is the nature of our society.

Defendants claim that the right to bear arms is not fundamental. The right to bear arms is explicitly guaranteed in the Bill of Rights article of the Constitution. The Colorado Supreme Court has repeatedly declared the right to be "fundamental." The Constitution firmly insists that "the right of no person" to bear arms for personal and civil defense "shall be called in question." The related right to self‑defense in Article II, sect. 3 is declared to be "essential."

Yet defendants contend that the right to bear arms and the right to self defense can be infringed as long as the infringement passes the rational basis test. Defendants seem to view the rational basis test itself a formality that they can pass with unsubstantiated assertions.

The propositions advanced by defendants amount to Constitutional nullification. The Constitutional Convention and the People of Colorado explicitly placed certain fundamental freedoms ‑‑ including the right to bear arms ‑‑ in the Bill of Rights in order to protect them from the transient (and sometimes hysterical and ignorant) desires of legislators. To accept defendants' nullification ‑‑ to test infringements of the right to bear arms under the same standard as regulations of dogs‑at‑large ‑‑ would create a precedent that would imperil every right guaranteed in the Constitution.

Defendants never dispute plaintiffs' detailed demonstration (incorporated by Colorado) that high‑capacity rapid‑fire weapons were in common use and well known at the time the Colorado Constitution was adopted. Instead, defendants assert that "As technology advances, making weapons more deadly," defendants have the authority to impose prohibitions on "these military weapons" (Defs. rep. br., at 53). Defendants observe, correctly, that rapid‑fire, high‑capacity weapons (the kind in common use in 1876) can cause more damage than "single shot" weapons (which were obsolete before the Civil War).

Defendants' approach is contrary to the genius of the Constitution. No one at the state Constitutional Convention of 1876 ever talked on a telephone, yet the rule against unreasonable searches and seizures applies to telephone conversations (even though telephones have made organized crimes such as drug trafficking much more efficient than organized crime was in 1876). No one at the state Constitutional Convention ever watched television, yet the Constitutional freedom of the press protects television (even though a single irresponsible journalist can cause far quicker and more severe damage to reputation than could his counterpart a century ago ‑‑ as Gary Hart found out). Although unfamiliar with telephones and televisions, the delegates of the Constitutional Convention were familiar with high‑capacity, rapid‑fire military guns, and as Supreme Court Justice and Convention delegate E.T. Wells explained, those are precisely the guns that the delegates and the people who ratified the Constitution intended to protect. Defendants claim that they can stifle the future evolution of technology for the exercise of a Constitutional right ‑‑ and that they can roll back technology to decades before the Constitution was written, outlawing the technology that the Constitution was specifically intended to protect.

Under the Colorado Constitution, the State of Colorado is the primary political structure, and cities are subordinate. No city council may interfere with state policy. By outlawing the AR‑15 Sporter and similar firearms, defendants are crippling the State Militia. To defendants the Militia may seem unimportant, but the Constitutional Militia belongs to Colorado, and is not defendants' to discard.

Moreover, as plaintiffs detail and as Colorado adopts by incorporation, defendants are directly interfering with the General Assembly's long‑standing gun control policy. The general assembly has by many separate acts ‑‑ including statutes designed to address the particular issues of the firearms banned by Denver ‑‑ determined that the most effective way of preventing firearms crime is to punish severely gun criminals and to put criminals in the greatest fear possible of a powerfully armed citizenry.

In violation of Colorado's policy of promoting public safety through a well‑armed citizenry, defendants disparage self‑defense. The sponsor of the ordinance announced that she wished to outlaw guns that are "easy to use." The ordinance prohibits guns designed primarily for antipersonnel use ‑‑ as if the protection of home, person and property could be accomplished by some sort of imaginary gun not intended to harm people. Defendants do not deny the detailed demonstration by Colorado and by plaintiffs that the banned guns may in many situations be the most suitable for self‑defense. Defendants believe that since they have not outlawed other, inferior guns, it is alright to deny the right to possess the best guns for defense of home, person and property. In addition, the ordinance's ban on using a lawfully registered firearm for self defense speaks volumes about the illegitimate intent behind the ordinance, an intent which by itself provides more than enough reason for striking the ordinance.

The contempt in which defendants hold the right to self‑defense is underlined by their shocking argument that only a person actually threatened has standing to invoke the right to bear arms. That the Supreme Court, in Pillow and Nakamura, never required such a showing is apparently of no consequence to defendants, and neither is the practical consequence of their theory. Plaintiff Sharon Deatherage, a small woman who lives by herself in a rough part of town, witnessed a gang brawl on the street in front of her home. A police car drove up, quickly surveyed the chaos, and fled never to return. Yet defendant police chief Zavaras claims that Ms. Deatherage has no standing to invoke her right to bear arms. At what point will she have standing? When a gang of robbers and rapists breaks down her door? Will she have time then to buy a firearm and learn how to use it safely? Even then, will defendants allow her to choose the firearm that she can use most safely and effectively ‑‑ a short, low recoil, semiautomatic rifle ‑‑ or must she use an obsolete single‑shot weapon with too much recoil to control safely?

The People of Colorado have a right to live only under laws which are rational. The ordinance is the essence of irrationality. On the night that Eugene Thompson rampaged through the suburbs south of Denver, City Councilwoman Cathy Reynolds announced that she would sponsor an "assault weapon" ban. Yet the Denver ordinance has nothing to do with the automatic firearm that Eugene Thompson used. Indeed, the ordinance has nothing to do with real assault weapons, which by Defense Intelligence Agency definition are only automatics.

Instead, the ordinance begins with "findings" about so‑called "assault‑weapons" that are fallacious and irrational; the ordinance proceeds to outlaw a confused collection of guns ‑‑ many of them not even semiautomatic and some of which do not exist ‑‑ that defendants thoughtlessly copied from Californians' interpretation of a picture book. The ordinance outlaws guns that are too short, but does not say how short; guns that fire too quickly, but does not say how quickly; and guns that have the wrong design history or licensing agreements, although such characteristics are neither rational nor discernable by any normal citizen (or by most firearms experts). The Draconian restrictions on owners of registered guns have no legitimate purpose. Thirteen months after the suit was filed, and after two rounds of briefing, defendants still cannot supply a satisfactory explanation of what many of the ordinance's terms mean. Further, defendants' misstatements of the ordinance, of case law, and of reference materials, coupled with their elastic and elusive interpretations of the ordinance's language emphasize the dangers of arbitrary and capricious enforcement.

In judging the ordinance, the Court must answer basic questions about authority. Regarding the use of the banned guns in crime, which is more authoritative: official government crime statistics, or unsubstantiated assertions from police administrators ‑‑ most of which administrators have abused and illegally "enforced" the existing firearms laws?

The ordinance involves the question of trust ‑‑ or more precisely of mistrust. Defendants suggest that because Patrick Purdy ‑‑ a man with a record of violent felony arrests (plea bargained to misdemeanors) and a lengthy public record of severe mental illness and articulated threats to commit mass murder ‑‑ used one of the banned guns in a crime, it is proper to mistrust all the people of Denver and to bar them from owning similar guns. Colorado suggests that because defendants ‑‑ through their briefs and their actions ‑‑ have already demonstrated their intention to enforce the ordinance in a severe and unprincipled manner, it is proper to prevent such abuse by striking the vague ordinance.

The ordinance is about the role of government in a free society. Defendants' ordinance makes a specific finding that the banned guns are offensive weapons, with no legitimate role in protection activities. Yet defendants ‑‑ including defendant police chief Zavaras, who supervised drafting of the ordinance ‑‑ allow any police officer to possess these non‑defensive weapons. Defendants' view is that while any ordinary citizen is a potential mass murder who cannot be trusted, any police officer, being an agent of the government, can own any offensive weapon, no matter how destructive.

The ordinance's police privilege is irrational, but more essentially, it points to the ordinance's ultimate flaw. The violations of the right to bear arms, of the right to self‑defense, of the right to due process, and of the prohibition on ex post facto laws are all symptoms of the same misunderstanding of the very structure of Colorado's law. Defendants believe that the government "grants" the People a "limited" right to bear arms. To the contrary, the right to keep and bear arms, like other fundamental individual rights, existed long before the City of Denver or the State of Colorado were created. Governments do not give people rights. The People give government power in order to protect their preexisting rights. This is what the Colorado Supreme Court has affirmed. Colorado Anti‑Discrimination Commission v. Case, 151 Colo. 235, 389 P.2d 34, 40 (1963) ("Individual liberties and rights are inherent, and that such rights are not derived from the Constitution, but belong to the individual by natural endowment.") This is the premise on which the United States was created. The Declaration of Independence para. 2 (U.S. 1776) ("that all men are endowed by their Creator with certain unalienable rights ... That to secure these rights, governments are instituted among men..."). This is the basis on which the United States Supreme Court has construed the right to bear arms. United States v. Cruikshank, 92 U.S. 542, 551‑53 (1875) (right to bear arms and right peaceably to assemble were already in existence when Constitution was written, since they are "found wherever civilization exists."). And this is the foundation upon which all Colorado law rests: "All political power is vested in and derived from the people; all government, of right, originates from the people ... All persons have certain natural, essential and inalienable rights, among which may be reckoned the right of enjoying and defending their lives; of ... protecting property; and of seeking and obtaining their safety and happiness." Art. II, sects. 1, 3. If Colorado is still a society premised on the inherent rights of the People, and not the inherent authority of the police, then the ordinance must fall.

The Attorney General is the elected legal representative of the People of Colorado. The State of Colorado ex rel. Gale A. Norton and its client the People of Colorado do not ask this Court to make any policy judgment regarding the merits or demerits of guns or gun control. The role of the judiciary is far more important than mere policy judgments. To declare invalid an enactment which violates Constitutional rights "is of the very essence of judicial duty." Marbury v. Madison, 5 U.S. 137, 177‑78 (1803). The State of Colorado ex rel. Gale A. Norton asks only that this Court perform its duty to enforce the law: to protect the authority of the State of Colorado from local interference; to protect the People of Colorado from vague, irrational, and ex post facto laws; and to vindicate the right of the People to due process, to self‑defense, and to keep and bear arms. The State of Colorado ex rel. Gale A. Norton respectfully requests this Court uphold the Constitution of the State of Colorado, and declare ordinance 38‑130 unconstitutional.

GALE A. NORTON

Attorney General

TIMOTHY M. TYMKOVICH

Solicitor General

LOIS G. WITTE

Deputy Attorney General

DANIEL S. MILLER

First Assistant Attorney General

DAVID B. KOPEL

Assistant Attorney General

Natural Resources Section

Attorneys for State of Colorado

ex rel. Gale A. Norton

110 Sixteenth Street, 10th Floor

Denver, Colorado 80202

Telephone: 620‑4716

AG Alpha No. LW AG YNR

AG File No. DNR9100862.LR



[1]. Defendants supply an affidavit by David Michaud, an officer who has served with the Denver police department for 24 years. The Michaud affidavit includes only three specific examples of crime committed with any of the semiautomatic firearms covered by the ordinance. (One murder, and two cases of illegal possession [Defs. rep. br., ex. C].)

Defendants also supply a reprint of Congressional testimony by Arapahoe County Sheriff Patrick Sullivan. The testimony is included twice, as exhibits D and E to defendants' reply brief. Mr. Sullivan's listing of every crime he knows to have been committed in his jurisdiction with a semi‑automatic firearm covered by the Denver ordinance is: February 1984 (shooting at a police car); July 1984 (possession by a person who also possessed explosives); July 1985 (possession, no offense specified); September 1988 (seizure during a drug raid); December 1988 (seizure during a drug raid); unspecified date (seizure during a drug raid). In other words, in the 5 years from February 1984 to February 1989 (the date of Sheriff Sullivan's testimony), his office encountered 6 instances where one of the semi‑automatic firearms covered by the ordinance was used in a crime. (Sheriff Sullivan also lists some crimes committed with automatics, which are not covered by Denver Ordinance 38‑130.) From the occurrence of crimes of any type (only one involving actual discharge of a firearm) involving the banned weapons at the rate of 1.2 per year in his jurisdiction, Sheriff Sullivan announces, "The threat to public safety and the threat to the safety of our law enforcement officers is real and occurring with alarming frequency." (Defs. rep. br., ex. E, at 85).

But Sheriff Sullivan's own facts belie his claims about the "alarming frequency" of the misuse of the guns he calls "assault weapons." Indeed, if one criminal misuse (including possession) per year is considered "alarming frequency," then virtually every class of gun could be banned, since most types are guns are likely misused at least once a year in Arapahoe County. Far from bolstering defendants' position, the affidavits of Officer Michaud and Sheriff Sullivan support Colorado's motion for summary judgment, for they underscore Colorado's criminological evidence that the banned firearms are only rarely used in crime.

[2]. Defendants' pictures of "assault weapons" currently in the custody of Denver police did include one shotgun. Defs. rep. br., ex. A, at 2 ("Shotgun with collapsible stock"), photo "o." Because the Model 10 is not among the guns banned by name (or remotely similar to any of them), defendants apparently believe that the Model 10 "assault weapon" they have shown the Court is a "semiautomatic shotgun with a folding stock or a magazine capacity of more than six (6) rounds or both." ' 38‑130(b)(1)b. Actually, the Model 10 has a short "yoke" stock, not a folding stock; its magazine capacity (including one round in the firing chamber) is 5. Model 10 instruction manual, at 2, 4, Colo. ex. 56. Hence, the Model 10 is not covered by the ordinance.

[3]. The McGuire tape contains three interviews with law enforcement officials, none of which bolster defendants' claims. In one interview, an Oakland police officer says that his department seizes 15‑20 automatics and semiautomatics a month in connection with crimes ranging from murder to illegal possession. The officer does not specify how many of the guns are semiautomatic, or what percentage of seized guns they amount to. Another Oakland police officer complains about the prevalence of automatic firearms, and never discusses semiautomatics. Lastly, a Dr. Hermann, Director of the Institute of Forensic Sciences, states that in his area, the criminal weapon of choice is the automatic Uzi (Defs. rep. br., ex. J). Thus, nothing in the videotape provides any evidence regarding how frequently semiautomatic firearms of any type, including those banned by the ordinance, are used in crime. Indeed, the Oakland administrator and the Doctor of forensics both imply that semiautomatics are not the criminal weapon of choice.

[4]. Although Mr. McGuire asserts that "assault weapons" are the "weapon of choice" for violent criminals, criminals today prefer, as they always have, concealable firearms, particularly in urban environments. The criminal weapon of choice remains the handgun and the sawed‑off shotgun. "Assault weapons" are too big to conceal, and hence unsuitable for the criminal (Sanders aff., at 5, Colo. ex. 43). Mr. McGuire asserts that features such as barrel shrouds, flash suppressors and pistol grips make "assault weapons" attractive to criminals. In fact, such features increase the bulk of the gun, thereby making it less concealable and less useful to criminals. "[W]hen used on rifles, pistol grips are simply part of a design to prevent muzzle rise, thereby allowing better target shooting, hunting, and self defense use," Mr. Sanders writes. "Moreover, all pistols obviously have pistol grips. Thus, the attributes cited by Mr. McGuire are meaningless." (Sanders aff., at 5, Colo. ex. 5).

[5]. Senate Committee on the Judiciary, Subcommittee on the Constitution, The Right to Bear Arms, 97th Cong., 2d. Sess., S. Doc. No. 2807 (February 1982), at 20‑23 (unanimous report), Colo. ex. 42.

In 1982, Mr. McGuire was promoted to Associate Director, Law Enforcement, a position which he held until his retirement in 1988 (McGuire aff., defs. rep. br., ex. O). In 1986, Congress enacted the Firearm Owners Protection Act, which narrowed the definition of offenses under the Gun Control Act of 1968, and sharply curtailed the search and seizure authority of B.A.T.F. The preamble to the law reining in the enforcement activities under Mr. McGuire's supervision states:

The Congress finds that (1) the rights of citizens (A) to keep and bear arms under the second amendment to the United States Constitution (B) to security against illegal and unreasonable searches and seizures under the fourth amendment (C) against uncompensated taking of property, double jeopardy, and assurance of due process of law under the fifth amendment and (D) against unconstitutional exercise of authority under the ninth and tenth amendments; require additional legislation to correct existing firearms statutes and enforcement policies...

18 U.S.C.S. sect. 921 (1990 Supp.), at 149 (emphasis added).

[6]. One of defendants' other stories, about the New Jersey state trooper who was "mortally wounded" (Defs. rep. br., at 18) is complicated by the fact that the trooper survived. (Newark Star Ledger, October 31, 1989, Colo. ex. 58.)

[7]. The 78% figure comes from the Cox newspaper articles, discussed infra. As further authority for the 78% figure, defendants string cite several other exhibits. One authority claimed by defendants for the 78% figure is Drug Enforcement Agency Administrator John Lawn. Yet Mr. Lawn's article does not contain the 78% figure, and merely states that 17% of guns seized in drug raids are semiautomatics of any type, a percentage smaller than their proportion on the general firearms stock (Defs. rep. br., ex. I). ("Almost a third of the weapons seized were semiautomatic and fully automatic, with 16 percent of those in the fully automatic category.") For semiautomatics as a percent of the total gun stock, see Blackman aff., Colo. ex. 3.

[8]. Plaintiffs in their interrogatories asked defendants to supply all documents considered by the City Council and the sponsor in enacting the ordinance or that would elucidate the legislative intent. The only document supplied by defendants that has been in any way connected with the council's intent is the transcript of the public hearing.

[9]. Defendants' exhibit M is two pages of advertisements from a gun magazine. What the advertisements actually illustrate is defendants' credulousness. The advertisements depict trigger components which the Bureau of Alcohol, Tobacco and Firearms allows to be sold because they do not convert guns to full automatic fire. Letter from Jack Killorin, Chief, Public Affairs Branch, BATF to David B. Kopel (March 6, 1991), Colo. ex. 58. A careful reader of the advertisements would note that the ads promise the purchaser the "'feel'" of full automatic similar to what "your gun would fire if it were converted to full automatic." Lucky buyers of these trigger components may get a different "feel," but no more firepower from the devices. Unlucky buyers will purchase one of the "Hell‑fire" devices which not only provides no more firepower, but also, in the words of BATF, does "not work in any respect." Killorin letter; Edward M. Owen letter, April 10, 1990, both in Colo. ex. 58.

Defendants' other evidence about how "easily" the firearms are converted is several pages from Duncan Long's book The AR‑15/M‑16: A Practical Guide. Defs. rep. br., ex. N. As Long explains, any device which actually converts a semiautomatic to a true automatic can only be obtained by undergoing the same rigorous federal licensing as is required for buying an automatic outright. See also ATF Ruling 81‑4, Colo. ex. 57.

[10]. Handgun Control, Inc., videotape, (defs. rep. br., ex. J) (Interview with Dr. Hermann, Director of Institute for Forensic Sciences. The Uzi bullet is "slightly larger and slightly faster than the .38 special. It does not produce a large cavitory destructive wound through the body.")

[11]. Defendants arrive at the figure by omitting the shortest "sporting" firearm from their calculations.

[12]. Defendants thereby fail to respond to Colorado's argument that the banned pistols are actually larger and longer than most other pistols.

[13]. The abbreviation "i.e." is derived from the Latin "id est," and means "that is." Websters Ninth New Collegiate Dictionary 1379 (1986). Defendants' sentence, with the "i.e." spelled out, reads: "Military style auto loaders, that is, assault weapons, generally have shorter lengths than sporting weapons."

[14]. The licensing requirement for short‑barrelled rifles and shotguns has never been tested on Constitutional grounds in a Colorado court. Because the law parallels the federal National Firearms Act, which would remain in place regardless of what the Colorado Constitution required, a Constitutional challenge of the Colorado statute would achieve no practical result.

[15]. Pistols which could be argued to have the appearance of a scaled‑down military rifle include the AA Arms P95, the Browning Buck Mark Varmint, the Browning Buck Mark 5.5, the F.I.E. Spectre, the Goncz GA‑9, the L.A.R. Grizzly Win Mag, the Partisan Avenger, the Remington XP‑100 Silhouette, the Ruger Government Target, the Thompson/Center Super Contender, and the Wichita Silhouette. Gun Digest (1991), at 257‑72, 286‑88, defs. rep. br., ex. Q. Ironically, all of these pistols (like any pistol designed from a rifle) are much larger than other pistols ‑‑ even though defendants identify short length as being a distinguishing feature of "assault weapons."

[16]. Defendants explain that the statement about repair was made "in the heat of an antagonistic meeting with gun dealers and pawn shop owners" (Defs. rep. br., at 37‑38). One must wonder what other severe interpretations of the vague ordinance will be articulated by defendants when they are next antagonized by persons who insist too forcefully on their perceived rights.

[17]. Defendants mistakenly assert that Colorado believes a separate permit is required each time the gun is transported (Defs. rep. br., at 35). Colorado made no such statement; rather Colorado argued that separate notification was necessary (Colo. sum. j. br., at 70‑71 ("... must provide prior notification to the police.")).

[18]. The one major American manufacturer subjected to the ban is Colt's, which at the time the 1989 list was composed was crippled by a labor walk‑out (later resolved by the employees buying the company) and was in no position to exercise political clout.

[19]. Defendants do not cite Mr. Barnes and his affidavit for anything other than the names of guns. The affidavit does, however, discuss "assault weapons." Barnes aff., defs. rep. br., ex. T. Some of the less than wholly accurate claims by Mr. Barnes, which cast doubt on his expertise and credibility, are discussed in Johnson aff., at 1‑4, Colo. ex. 51 (Barnes misstatements regarding illegal conversions, handguards, muzzle threads for recoil control).

[20]. Defendants have now produced proof regarding the existence in a semiautomatic format of (h)(l)(b), (h)(1)h, (h)(1)p (Valmet M71S), (h)(1)t, and (h)(1)v.

[21]. Defendants' expert Mr. Barnes' description of the Kalashnikovs, like his description of some other guns, is generally correct, but not as fully precise as might be desired. Regarding the ordinance's item "a.", he writes: "These are modified, semi‑automatic versions of the Soviet 7.62 Avtomat Kalashnikov (common designation, AK, AK‑47 or AK‑47 Assault Rifles) which was a selective fire weapon capable of both semiautomatic and automatic fire. The original AK was the basic individual weapon of the Soviet Army. The 'AK' designations are also commonly used to describe these weapons which were primarily made for the U.S. market" (Barnes aff., defs. rep. br. ex. T).

While Mr. Barnes' statement is generally correct, it would have been more precise to add that when the phrase "AK" is used for a semiautomatic, there is always an additional letter, such as "AKS" or "AK‑47s." Likewise, it would have been more precise to note that "Avtomat Kalashnikovs" are capable of automatic fire. See 1990 Gun Digest, at 305‑13, defs. rep. br., ex. R). (No semiautomatic Kalashnikovs are called "Avtomat Kalashnikovs." No semiautomatic Kalashnikovs include the "AK" phrase by itself.)

[22]. Defendants' expert unhelpfully notes Daewoo makes two different versions of the "receiver" for its guns, and that one type of receiver is imported into the United States as being semiautomatic (Barnes aff., defs. rep. br. ex. T). Defendants' expert rather gingerly skirts the question of whether the named guns are semiautomatic or not.

[23]. Defendants are apparently confused by the boldface caption "Persons subject to service" which precedes section one in the Colorado Revised Statutes volume. The boldface is a reader's aid supplied by the publisher, and is not part of the "clear language of the Constitution." For example, the section of C.R.S. titled "Constitution of the United States of America of 1787" contains the boldface phrase "Right of arms" before the Second Amendment. Vol. 1A, C.R.S., at 19 (1980). The section in that same volume entitled "The Constitution of the United States of America, Literal Print" does not include the phrase "Right to arms" before the Second Amendment. Vol. 1A, C.R.S., at xx (1980).

Even if the actual Constitution included the boldface header, defendants' quibble about the difference between militia members and persons subject to militia service would be meaningless. See Webster's Third New International Dictionary 1433 (1976) ("militia" is "the whole body of able‑bodied male citizens declared by law as being subject to call to military service.")

[24]. Colorado had written in its brief: "Although the three male plaintiffs are not members of the organized militia, they do belong to the unorganized militia, which consists of 'all other members of the military.' Sect. 28‑3‑103(8)." The statute in question reads: "The unorganized militia shall consist of all other members of the military forces." Sect. 28‑3‑104, C.R.S. (1989).

[25]. Defendants begin by correctly noting that the "unorganized militia" is all members of the "military forces" who do not belong to the "organized militia." Defendants then, incorrectly, claims that the "military forces" include only the "organized militia." From this incorrect assertion, defendants come to the circular conclusion that plaintiffs do not belong to the unorganized militia, since the unorganized militia is members of the military forces who are not part of the organized militia, and all members of the military forces are part of the organized militia (Defs. rep. br., at 42‑43).

In fact, "The military forces of the state of Colorado shall be divided into two classes ‑‑ the organized militia and the unorganized militia." Sect. 28‑3‑104(6), C.R.S. (1989). "The organized militia shall consist of the following: (a) The federally recognized national guard; (b) The state defense force, which shall comprise all organized components of the militia, except the federally recognized national guard." ' 28‑3‑103(7), C.R.S. (1989). "The unorganized militia shall consist of all other members of the military forces." Sect. 28‑3‑103(8), C.R.S. (1989). In other words, the "organized militia" is the national guard and the state defense force; and the "unorganized militia" is everything else that is part of the "military forces."

Defendants claim that "'Military forces' are defined as 'the federally recognized national guard and any other organizations or components of the organized militia as may be created pursuant to federal or state law." Defs. rep. br., at 42, quoting ' 28‑3‑101(3), C.R.S. (1989). Defendants' quotation of the statute omits one crucial word: "'Military forces,' includes the federally recognized national guard..." Sect. 28‑3‑101(3), C.R.S. (1989) (emphasis added). Thus, the statute states that "'military forces' includes" the national guard and the rest of the organized militia. Defendants, by omitting the word "includes," attempt to give the impression that the "military forces" consist of only the national guard and the rest of the organized militia.

The result defendants suggest is not only inconsistent with the wording of the statute, but impossible. If the "military forces" consisted only of the national guard and the rest of the organized militia, why would the statute defining the "unorganized militia" refer to "all other members of the military forces"? Sect/ 28‑3‑104(8), C.R.S. (1989). By defendants' theory, there are no members of the "military forces" other than the components which belong to the "organized militia." Hence, the "unorganized militia" would consist of no‑one, since the set of "all other members of the military forces" other than members of the organized militia is an empty set.

It seems unlikely that the general assembly would whimsically define "military forces," "organized militia" and "unorganized militia," in a circular manner so that it was impossible for any person to belong to the "unorganized militia." Yet that is how defendants interpret the statute, in attempting to argue that able‑bodied adult males are not part of the state militia. As the maxim puts it, "Lex non patitur absurdum" (The law does not suffer an absurdity.)

Finally, while the instant case involves the Colorado Constitution, and not its federal counterpart, the federal definition of the militia is entirely consistent with Colorado's. Although defendants apparently think that a militia only a uniformed body such as the National Guard, the United States Supreme Court has rejected this view. Interpreting the Constitutional meaning of "a well‑regulated militia," the Court explained that historical evidence "shows plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense... [W]hen called to service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." United States v. Miller, 307 U.S. 174, 179 (1939) (Court held that since defendant had presented no case, Court could find no evidence that a sawed‑off shotgun was of any use in a militia.) The present U.S. Code comports with the Constitution and with Supreme Court understanding. The Code declares: "The militia of the United States consists of all able‑bodied males at least 17 years of age and ... under 45 years of age." The Code distinguishes the "the organized militia, which consists of the National Guard and the Naval Militia" from "the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia." 10 U.S.C.S. sect. 311 (1985).

 

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