Three Pheasants and a Shotgun

In 1936, in Delta County, Colorado, a man named Nakamura, an “unnaturalized foreign-born resident”, was charged with illegally possessing three pheasants and a shotgun.

At the time, a Colorado law made it “unlawful for any unnaturalized foreign-born resident to hunt for or capture or kill, in this state, any wild bird or animal, either game or otherwise, of any description, excepting in defense of persons or property; and to that end it shall be unlawful for any unnaturalized foreign-born resident, within this state, to either own or to be possessed of a shotgun or rifle of any make, or a pistol or firearm of any kind.” 

An “unnaturalized” (in today’s vernacular, “illegal”) immigrant convicted of this crime was guilty of a misdemeanor punishable by a fine of not less than $25 nor more than $250 or by imprisonment in the county jail for not less than 10 days or more than three months. In addition, the guilty alien was required to forfeit all guns in his possession and control, which were to be sold by the Colorado fish and game commissioner. 

Nakamura challenged the charges on the grounds that the Colorado Constitution protected his right to bear arms. The Colorado Supreme Court agreed. Section 13, article II of the Constitution states “The right of no person to keep and bear arms in defense of his home, person and property, or in the aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.”

Colorado courts have held that the Colorado Constitution’s right to keep and bear arms is not an absolute right. Rather, the right can be limited based on the government’s reasonable exercise of police power. In Mr. Nakamura’s case, however, the Supreme Court held that the legislature went too far. The Court held that while the legislature may prevent hunting of game by aliens, it may not “disarm any class of persons or deprive them of the right guaranteed under section 13, article II of the Constitution, to bear arms in defense of home, person and property.”

“The guaranty thus extended is meaningless if any person is denied the right to possess arms for such protection. Under this constitutional guaranty, there is no distinction between unnaturalized foreign-born residents and citizens.”

Almost ninety years after Mr. Nakamura’s case was decided, I think about this case from time to time in the context of today’s political environment. Is guaranteeing the right of an “illegal” alien to bear arms a radical opinion? On the one hand, the jurisprudence that has developed since 2008, beginning with the United States Supreme Court opinion in Heller, has dramatically expanded any prior understanding of the constitutional right to bear arms. On the other, it seems difficult to believe that in today’s anti-immigrant political climate a court would recognize that “illegal” aliens have a right to bear arms equal to a citizen. In his dissent in the Nakamura case, Justice Bouck wrote that the majority erred by not permitting Mr. Nakamura’s case to go to trial, where he could try to assert that his possession of a shotgun was in self-defense, as opposed to other reasons, including for “the purpose of subverting the government itself.”

This case is also a good reminder that the right to bear arms in Colorado is protected by the Colorado Constitution, which unlike its counterpart in the federal constitution is well written and free of ambiguity.

Mostly I think about Mr. Nakamura, who based on his name was likely of Japanese descent and who found himself of all places in Delta, Colorado shooting pheasants and otherwise minding his own business before he was charged with illegal possession of a firearm solely due to his status as a “unnaturalized foreign-born resident”.