Benjamin v. Bailey

• Decision Date: 25 July 1995
• Docket Number: No. 14968,14968
• Court: Connecticut Supreme Court
• Parties: DeForest H. BENJAMIN, Jr., et al. v. John M. BAILEY et al.

Page 1226

662 A.2d 1226

234 Conn. 455

DeForest H. BENJAMIN, Jr., et al. v. John M. BAILEY et al.

No. 14968.

Supreme Court of Connecticut.

Argued April 26, 1995.

Decided July 25, 1995.

Wesley W. Horton, with whom were Christy Scott, Gregory J. Miller, Mark K. Benenson and, on the brief, Michael S. Taylor, John A. Reed, Joseph M. Busher and Jennifer B. Cona, Legal Interns, for appellants-appellees (plaintiffs).

Richard Blumenthal, Atty. Gen., with whom were Robert F. Vacchelli, Ronald E. Naves, Jr., and Gregory T. D'Auria, Asst. Attys. Gen., and Harry D. Weller, Asst. State's Atty., for appellees-appellants (defendants).

Serge G. Mihaly and Robert Dowlut, pro hac vice, filed a brief for the Firearms Civil Rights Legal Defense Fund as amicus curiae.

David W. Cooney, Douglas Hammond, Dennis A. Henigan, pro hac vice, and Mark D. Polston, pro hac vice, filed a brief for The Center To Prevent Handgun Violence et al. as amici curiae.

Before PETERS, C.J., and BORDEN, BERDON, KATZ and PALMER, JJ.

PETERS, Chief Justice.

The principal question in this appeal is whether the statutes banning the sale, transfer or possession of assault weapons, General Statutes §§ 53-202a through 53-202k, ¹ violate the right to bear arms guaranteed by article first, § 15, of the state constitution. ² In November, 1993, the plaintiffs, DeForest H. Benjamin, Jr., Robert A. Suprenant, Bertcelis E. Morales, Michelle R. Palmer, Bradford B. Palmer, Frank D'Andrea, Bruce E. Kaufman and Navegar, Inc., doing business as Intratec, a foreign corporation, initiated this declaratory judgment action ³ against John M. Bailey, chief state's attorney, Frank Maco, state's attorney for Litchfield, and Nicholas Cioffi, the commissioner of public safety. Following a trial to the court, the court determined that the statutory ban on assault weapons does not violate the state constitutional right to bear arms, the state constitutional right to equal protection of the laws or the state constitutional prohibition of bills of attainder. The court, however, believing a narrowing construction to be necessary to prevent the statutes from being vague in violation of the constitutional right to due process, excised certain words from the statutory enumeration of proscribed weapons. The plaintiffs appealed and the defendants cross appealed from the trial court's ruling directly to this court pursuant to General Statutes § 51-199(b)(2). We agree with the trial court that the ban on assault weapons is constitutionally permissible. We disagree with the trial court that certain components of the legislation are unconstitutionally vague for purposes of this declaratory judgment action. Accordingly, we affirm in part, reverse in part and remand with direction to render judgment in favor of the defendants.

The trial court found the following facts. Although assault weapons do not comprise the majority of the weapons that are seized by law enforcement officials, the number of assault weapons being seized is rising steadily. Assault weapons "have appeared more frequently as a risk factor to police officers on the street, and to innocent victims in densely-populated areas." In this regard, the court noted the testimony of Chief Thomas Sweeney of the Bridgeport police department, who described two separate crime scenes at which a total of seventy-six spent rounds from assault weapons had been found. Sweeney also testified to situations in which assault weapons had been used against police officers, and another in which an apparently unintended victim had been killed by a bullet fired from an assault weapon. Similarly, the court noted the testimony of Major John Bardelli of the state police, who testified concerning the investigation into the murder of a state trooper killed by a burglar using a type of assault weapon proscribed by the statutory ban.

In relation to the specific legislation at issue, the trial court determined that "there are many firearms [that] fit the general designation of 'assault weapons,' and [that] are virtually identical to the banned weapons, but [that] do not appear on the list [of proscribed weapons]." Copies of the firearms listed in General Statutes § 53-202a may be found in this country and abroad. The court further found that it is regular practice in the firearms industry to market weapons by changing their numerical designation, name and accessories. The trial court, however, discredited evidence presented by the plaintiffs' expert witnesses, who had testified that certain firearms listed in § 53-202a could not be readily identified and that the weapons banned by the statute were appropriate for self-defense. Other facts will be related as necessary.

On the basis of these factual findings, the trial court addressed the plaintiffs' claims in three separate analytic categories. First, the court concluded that the ban on assault weapons represents a reasonable exercise of the state's police power. As a result, the court determined, the legislation does not unconstitutionally infringe the right to bear arms, principles of due process or equal protection of the laws. Second, applying the tripartite test enunciated in Nixon v. Administrator of General Services, 433 U.S. 425, 473-84, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977), the court determined that the legislation is not an unconstitutional bill of attainder. Third, the court determined that the term "type," used in three places in the portion of § 53-202a that lists the proscribed weapons, ⁴ has no generally ascertainable meaning in the firearms industry that would be readily understood by members of the general public possessing ordinary intelligence. The court thereafter determined from the legislative history that the designation of the Avtomat Kalashnikov AK-47 (AK-47) weapon and the MAC-10, MAC-11 and MAC-11 Carbine weapons had independent meaning in the absence of the word "type," but that the designation of the Auto-Ordnance Thompson weapon had no such independent meaning without the word "type" and therefore could not be narrowed as a matter of statutory construction. Accordingly, to save the legislation from unconstitutional vagueness, the court deleted the word "type" following AK-47 and MAC-10, MAC-11 and MAC-11 Carbine and the phrase "Auto-Ordnance Thompson type" from the list of proscribed weapons.

On appeal, the plaintiffs challenge the trial court's rulings with respect to the right to bear arms, the right to equal protection of the laws and the prohibition of bills of attainder. The plaintiffs also assert that the trial court improperly determined that the statute listing the proscribed weapons was not vague as a whole or, in the alternative, that the court improperly determined that the vague portions of the statute could be severed in order to prevent the entire statute from being invalidated. The defendants, on the other hand, maintain that, with the exception of the vagueness issue, the trial court's judgment should be affirmed. With respect to vagueness, the defendants assert that the trial court improperly determined that certain portions of the statute fail to meet the standard applicable to a facial vagueness challenge. We agree with the defendants on each issue. ⁵

I

We first consider the propriety of the statutory ban on assault weapons under article first, § 15, of the state constitution. Although, in our prior opinions, we have referred to this provision in passing, we have not previously had occasion to explore thoroughly the contours of the state constitutional right to bear arms. See Superintendent of Police v. Freedom of Information Commission, 222 Conn. 621, 629-30, 609 A.2d 998 (1992); State v. Bailey, 209 Conn. 322, 346, 551 A.2d 1206 (1988); State v. Anonymous, 179 Conn. 516, 519-21, 427 A.2d 403 (1980); see also State v. Banta, 15 Conn.App. 161, 184, 544 A.2d 1226, cert. denied, 209 Conn. 815, 550 A.2d 1086 (1988).

The plaintiffs contend that the statutory ban on assault weapons should be declared unconstitutional because it fails to satisfy "strict scrutiny." The plaintiffs' contention involves a three step analysis. First, relying on language from Horton v. Meskill, 172 Conn. 615, 640-42, 376 A.2d 359 (1977) (Horton I ) (state financing system for public education violates state constitutional right to equal protection), the plaintiffs assert that because the right to bear arms is one of the rights articulated in article first of the state constitution, that right must be deemed "fundamental." Second, because the right at issue is "fundamental," the plaintiffs maintain, citing Daly v. DelPonte, 225 Conn. 499, 513, 624 A.2d 876 (1993) (classification by physical disability unconstitutional), that any infringement on the right must be subjected to strict scrutiny analysis. Finally, applying the strict scrutiny test, the plaintiffs argue that the statutory ban on assault weapons is not narrowly tailored to effectuate a compelling government interest.

By phrasing their arguments in this manner, however, the plaintiffs have glossed over the crucial first step in the constitutional analysis. Application of a particular standard of judicial scrutiny presupposes the existence of an injury to a constitutionally protected interest. Only after the injury has been identified can analysis proceed to the inquiry of "whether a [sufficient] governmental interest justifies the infliction of that injury." Adarand Constructors, Inc. v. Pena, --- U.S. ----, ----, 115 S.Ct. 2097, 2114, 132 L.Ed.2d 158 (1995).

Questions concerning the level of judicial scrutiny to be applied in a constitutional challenge, therefore, presuppose a judicial determination that a constitutionally protected interest has been infringed.

Our case law demonstrates the importance of specific identification of the constitutional right that is at issue. In Campbell v. Board of Education, 193 Conn. 93, 475 A.2d 289 (1984), for example, we addressed a challenge to a school board policy that,...