Colorado Supreme Court hears arguments in CU Gun Ban case; are Coloradans’ gun rights in the crosshairs?

“No man’s life, liberty, property, or constitutional rights are safe while the Colorado Supreme Court is in session.”  (again, with apologies to Mark Twain)

Clear The Bench Colorado has publicized the threat posed by the Colorado Supreme Court to our constitutional right to keep and bear arms in Colorado for some time (including an attempted exploitation of a court ruling to impose what amounts to an unconstitutional poll tax on gun sales and permits, the ban on responsible and licensed concealed-carry by the CU Board of Regents and an abortive CSU campus ban on concealed carry, along with debates and developments in both cases).  After the CU Board of Regents voted to appeal the Colorado Court of Appeals ruling which in April struck down the CU ban on licensed permit-holders carrying firearms on campus (Court tosses CU gun ban), we warned Coloradans that another attack on our constitutional and statutory rights was coming.

The threat materialized in October 2010 when the Colorado Supreme Court granted certiorari (agreed to hear) the CU Board of Regents appeal of last April’s Colorado Court of Appeals ruling (which upheld state law and the rights of Colorado citizens against CU’s assertion of a right to ban licensed concealed carry in any area “governed” by the Board, including areas open to the public).

On Wednesday (8 June 2011), the Colorado Supreme Court heard oral arguments from attorneys representing CU (on one side) and various individual citizens and other interested parties on the other.  The arguments lasted for one hour, and can be heard in their entirety via this link (audio recording, Regents v. Concealed Carry 10SC344).

The attorney for the CU Board of Regents argued that the CU Board has “constitutional authority” to “enact legislation governing the campus” – essentially, putting the CU Board of Regents “above the law” of the state of Colorado.  The attorney cited some past rulings by the Colorado Supreme Court which had established some legal precedent for this view.

However, as the Colorado Court of Appeals had previously noted in its April 2010 ruling, the CU gun ban policy violates “the clear letter and intent of the statute authorizing statewide standards and universal application for concealed-carry permits:”

18-12-214. Authority granted by permit – carrying restrictions.

(1) (a) A permit to carry a concealed handgun authorizes the permittee to carry a concealed handgun in all areas of the state, except as specifically limited in this section.

The Colorado Court of Appeals could not have been more clear in upholding that view, and went further in upholding the constitutional right of Colorado citizens to bear arms in self-defense:

Because the statute expressly applies to “all areas of the state,” we conclude that plaintiffs have stated a claim for relief under the CCA. We further conclude that plaintiffs have stated a claim for relief under Colorado Constitution article II, section 13, which affords individuals the right to bear arms in self-defense.

The law – both constitutional and statutory – is clearly on the side of the plaintiffs, wishing to exercise their legal right to responsibly carry concealed weapons after undergoing an extensive background check, practical and legal training, and acquiring a permit for that purpose.  The Concealed Carry Act applies to “all areas of the state,” except as specifically limited by the Act. The Regents lobbied to be included in the list of exceptions, but the legislature refused. The CU Board is now asking the Colorado Supreme Court to re-write the law to include the exception the Regents sought, but didn’t receive, when the legislation was passed.

Of course, it wouldn’t be the first time that the Colorado Supreme Court has legislated from the bench.  The fact that the Colorado Supreme Court even agreed to hear the CU Regents appeal of a very clear and well-grounded ruling by the Colorado Court of Appeals does not bode well for the preservation of another set of Coloradans’ constitutional rights.

There is a great deal more at stake than the relatively narrow issue of whether responsible adults can be denied the exercise of their rights (licensed concealed-carry pursuant to state law) – as if that wasn’t important enough.  In hearing the case, the Colorado Supreme Court will also rule on whether state law, as a matter of principle and precedent, can be ignored by certain quasi-governmental entities (such as the CU Board of Regents).  Most importantly, the Colorado Supreme Court will rule on the standard of review for laws regulating the right to bear arms (or any constitutional rights) in Colorado.

The Colorado Court of Appeals held (correctly, in my view and the view of most legal scholars) that the standard of review for assessing the law, and CU’s attempt to ignore state law via an illegal gun ban (and for reviewing any law regulating any constitutional right) is the ”reasonable exercise” standard (in other words, is the law a “reasonable exercise” of the government’s authority to restrict a constitutional right).  The CU Regents argue (and the Colorado Supreme Court’s Mullarkey Majority has in the past agreed, on other issues) that the standard for legal review should be the ”rational basis” standard of review (which gives virtually unlimited deference, and leeway, to the ability of government to pass laws restricting the individual exercise of fundamental constitutional rights).  Adoption of that standard in this case would set a very dangerous precedent, and would effectively nullify the Colorado Constitution’s recognition of an individual’s right to keep and bear arms.

This case – and so many others of this nature – isn’t about guns; it’s about freedoms.  Allowing the government to pass laws further restricting our rights (or allowing courts to unilaterally impose new laws or restrictions by re-writing or interpreting our rights out of existence) runs counter to the very foundations and ideals of this country.

Our Constitution is the Citizens’ rulebook for government – restricting the powers and authority of government to rule our lives.  It is what distinguishes us as Americans from the historical example of every other nation on earth: we are Citizens, not subjects.

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone –  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free –nor is it always easy to be a Citizen, not a subject.

Ultimately, though – it’s worth the effort.