State v. LaChapelle

• Decision Date: 16 February 1990
• Docket Number: No. 89-246,89-246
• Citation: 451 N.W.2d 689,234 Neb. 458
• Parties: STATE of Nebraska, Appellee, v. Roger C. LaCHAPELLE, Appellant.
• Court: Nebraska Supreme Court

Page 689

451 N.W.2d 689

234 Neb. 458

STATE of Nebraska, Appellee, v. Roger C. LaCHAPELLE, Appellant.

No. 89-246.

Supreme Court of Nebraska.

Feb. 16, 1990.

Syllabus by the Court

1. Constitutional Law: Statutes: Proof. One claiming that a statute is unconstitutional has the burden to show that the questioned statute is unconstitutional.

2. Constitutional Law: Statutes: Proof. Unconstitutionality of a statute must be clearly demonstrated before a court can declare the statute unconstitutional.

3. Constitutional Law: Statutes. Neb.Rev.Stat. § 28-1203(1) (Reissue 1989) is not vitiated by the "Right to Bear Arms" amendment of 1988, is a valid exercise of the State's police power in reasonable regulation of certain firearms, and does not contravene Neb. Const. art. I, § 1.

Thomas M. Kenney, Douglas County Public Defender, and Timothy P. Burns, Omaha, for appellant.

Robert M. Spire, Atty. Gen., and Donald A. Kohtz, Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

SHANAHAN, Justice.

In its information, filed in the district court for Douglas County, the State charged Roger C. LaChapelle with possession of a short shotgun in violation of Neb.Rev.Stat. § 28-1203(1) (Reissue 1989): "Any person or persons who shall transport or possess any machine gun, short rifle, or short shotgun commits a Class IV felony." LaChapelle filed a motion to dismiss the information, asserting that § 28-1203(1) was unconstitutional on account of the "Right to Bear Arms" amendment to article I, § 1, of the Nebraska Constitution, which amendment originated by the initiative process, was adopted at the general election on November 8, 1988, and provides:

All persons are by nature free and independent, and have certain inherent and inalienable rights; among these are life, liberty, the pursuit of happiness, and the right to keep and bear arms for security or defense of self, family, home, and others, and for lawful common defense, hunting, recreational use, and all other lawful purposes, and such rights shall not be denied or infringed by the state or any subdivision thereof. To secure these rights, and the protection of property, governments are instituted among people, deriving their just powers from the consent of the governed.

The district court, having found § 28-1203(1) to be constitutional in relation to the Right to Bear Arms amendment overruled LaChapelle's dismissal motion. In a bench trial, evidence established that LaChapelle used a shotgun, which had a barrel length less than 18 inches, to threaten a woman. The district court found LaChapelle guilty of the crime charged, for which LaChapelle was sentenced to imprisonment.

In his sole assignment of error, LaChapelle claims that the district court erred in overruling his dismissal motion, which challenged the constitutionality of § 28-1203(1) in reference to the Right to Bear Arms amendment to the Nebraska Constitution.

Neb.Rev.Stat. § 28-1201 (Reissue 1989) contains the definitions of "machine gun," "short rifle," and "short shotgun" for the purposes of § 28-1203(1). A machine gun is "any firearm, whatever its size and usual designation, that shoots automatically more than one shot, without manual reloading, by a single function of the trigger." § 28-1201(4). A short rifle is "a rifle having a barrel less than sixteen inches long or an overall length of less than twenty-six inches." § 28-1201(5). A short shotgun is "a shotgun having a barrel or barrels less than eighteen inches long or an overall length of less than twenty-six inches." § 28-1201(6).

"One claiming that a statute is unconstitutional has the burden to show that the questioned statute is unconstitutional." State ex rel. Spire v. Northwestern Bell Tel. Co., 233 Neb. 262, 265, 445 N.W.2d 284, 288 (1989). See, also, State v. Comeau, 233 Neb. 907, 448 N.W.2d 595 (1989); Weiner v. State ex rel. Real Estate Comm., 217 Neb. 372, 348 N.W.2d 879 (1984). Unconstitutionality of a statute must be clearly demonstrated before a court can declare the statute unconstitutional. State v. Copple, 224 Neb. 672, 401 N.W.2d 141 (1987).

State v. Comeau, supra, presented this court with the question whether the Right to Bear Arms amendment precludes Nebraska statutes "regulating the possession of firearms." Id. at 909, 448 N.W.2d at 596. The statutes involved in Comeau were Neb.Rev.Stat. § 28-1206 (Reissue 1989), which prohibits a felon's possession of a firearm with a barrel less than 18 inches in length, and Neb.Rev.Stat. § 28-1207 (Reissue 1989), which prohibits possession of a firearm with the manufacturer's identification marks or serial numbers removed, defaced, altered, or destroyed. In Comeau we noted that

"courts throughout the country have recognized that the constitutional right to keep and bear arms is not absolute, and these courts have uniformly upheld the police power of the state through its legislature to impose reasonable regulatory control over the state constitutional right to bear arms in order to promote the safety and welfare of its citizens."

Id. at 910, 448 N.W.2d at 597 (quoting City of Princeton v. Buckner, 377 S.E.2d 139 (W.Va.1988)). Consequently, in Comeau we concluded that the Right to Bear Arms amendment does not prohibit the State's reasonable regulation regarding possession of firearms and held that the statutes in question were reasonable regulations enacted pursuant to the State's constitutionally valid exercise of its police power.

Thus, in LaChapelle's case the question is whether § 28-1203(1), which prohibits possession of a machine gun, short rifle, or short shotgun, is a reasonable regulation concerning possession of a firearm in relation to the Right to Bear Arms amendment, Neb. Const. art. I, § 1.

Courts in other jurisdictions have found that a statute containing language substantially similar to § 28-1203(1) is a valid exercise of state police power regulating firearms so that a state's constitutional provision for a right to bear arms did not prevent prosecution and conviction for a violation of the firearm statute.

In Commonwealth v. Davis, 369 Mass. 886, 343 N.E.2d 847 (1976), the court, faced with the issue whether a statute which prohibited ownership or possession of a short, or sawed-off, shotgun was a valid exercise of state police power, rejected a right to bear arms constitutional challenge to the statute and stated:

Presumptively the statute is valid as a police measure; indeed a sawed-off shotgun seems a most plausible subject of regulation as it may be readily concealed and is especially dangerous because of the wide and nearly indiscriminate scattering of its shot. A Legislature might be justified in concluding that such weapons are associated with violent crime and call for strict licensing if not suppression.

Id. at 889-90, 343 N.E.2d at 850.

In State v. Fennell, 95 N.C.App. 140, 382 S.E.2d 231 (1989), the court considered the constitutionality of a statute which prohibited possession of a...