Considering the Constitutionality of recently-enacted Colorado “gun laws” – and the legal challenge led by Colorado Sheriffs

Colorado has become the national epicenter of the debate on ‘gun rights’ (the right of the people to “keep and bear arms“) on political, policy, AND constitutional grounds.

On the political front, Colorado has vaulted onto the national stage with the historic efforts to force a ‘recall’ vote against a number of state senators who were instrumental in passing legislation to restrict, infringe, or “call into question” the rights of Colorado citizens to “own, use, manufacture, sell, or transfer” firearms (and essential components – i.e. standard-capacity magazines).  As of this writing, sufficient signatures have been submitted to force recall elections for two incumbent state senators (Senate President John Morse, and state senator Angie Giron) with other state legislators remaining on the target list.

As a policy issue, the debate centers around whether any of the recently-enacted legislation would in fact have any impact whatsoever on promoting public safety – with the consensus view that, since the legislation fails to target criminal behavior or activity, the answer is a resounding negative.

However, the aspect with the most potentially far-reaching implications – for Colorado and the nation at large – revolves around the constitutional questions on gun rights issues raised by the legal challenge raised by 55 of Colorado’s 62 elected Sheriffs challenging the permissibility of the most prominent pair of the state’s recently-enacted pieces of legislation concerning firearms under the U.S. Constitution.

The Colorado Sheriffs’ Lawsuit – filed in the United States District Court for the State of Colorado (i.e. federal, not state, court) challenges the constitutionality of HB13-1224 “Concerning Prohibiting Large-Capacity Ammunition Magazines” and HB13-1229 “Background Checks for Gun Transfers” as violations of the 2nd and 14th Amendments to the United States Constitution.

The following summarizes the Complaint and relevant constitutional issues.

Guiding constitutional/legal principles (as summarized in the Sheriffs’ Complaint)

The Supreme Court’s Landmark Decisions: Heller and McDonald

27. There are certain indisputable legal principles announced by the United States Supreme Court against which HB 1224 and HB 1229 must be judged.

28. Under Heller, the Second Amendment to the United States Constitution guarantees the right of individual citizens to keep and bear commonly-used firearms for all lawful purposes.

29. The individual right to employ commonly-used firearms for self-defense is “the central component” of the Second Amendment guarantee.

30. An individual’s Second Amendment rights, including the right to self-defense, are fundamental rights.

31. Under McDonald, the rights protected by the Second Amendment apply equally to the states, including Colorado, through the Fourteenth Amendment to the United States Constitution.

HB13-1224: What it Does

As succinctly summarized in the Sheriffs’ legal complaint:

House Bill 13-1224 (“HB 1224”) bans outright all ammunition magazines sold or acquired after July 1, 2013 that hold more than 15 rounds of ammunition. HB 1224 also bans most other magazines of any size because it prohibits smaller magazines that are “designed to be readily converted” to hold more than 15 rounds of ammunition.  …

Thus, the magazine ban amounts to a ban on having a functional, operating unit for most handguns and a very large fraction of rifles…

What the Constitution Says

Amendment II, United States Constitution, states:

“A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.“

The collectivist interpretation of the Second Amendment, holding that the right of the people to keep and bear arms is contingent on membership in a militia, was decisively repudiated in the 2008 Heller case, which unequivocably held it to be a fundamental, individual right:

“the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.“

Further (as articulated in the Sheriffs’ Complaint):

In Heller, the Supreme Court adopted a rule enforcing the Second Amendment that prohibited the banning of arms “typically possessed by law-abiding citizens for lawful purposes.”

Additionally, the issue of whether ammunition is included in the definition of “arms” protected by the 2nd Amendment is also settled law; as noted in the 1939 United States v. Miller case,

“The possession of arms also implied the possession of ammunition, and the authorities paid quite as much attention to the latter as to the former.”

Can a ban on standard-capacity “ammunition feeding devices” meet constitutional standards?

Short answer: No.  Since the right of the people to keep and bear arms is a fundamental, individual right; the definition of “arms” protected under the 2nd Amendment include those in “common use” and “typically possessed by law-abiding citizens for lawful purposes;” and the definition of “arms” includes ammunition, “ammunition-feeding devices” meeting those criteria cannot be, constitutionally, banned (under the 2nd Amendment).  As summarized in the Complaint:

Magazines of 16-20 rounds for handguns, and 16-30 rounds for rifles, easily satisfy the “common use” and “typically possessed” standards in Heller. Under Heller, their prohibition is thus per se unconstitutional. (Sheriffs Complaint at 176)

HB13-1229: What it Does

As succinctly summarized in the Sheriffs’ legal complaint:

House Bill 13-1229 (“HB 1229”) requires “universal” background checks before any sale or transfer of a firearm can occur, with some exceptions. HB 1229, even considering the exceptions, prohibits a wide range of common, temporary, or permanent transfers or loans of firearms between law-abiding citizens in violation of the Second Amendment. (Complaint at 20)

The bill requires that when one individual sells or loans a firearm to another, that “transfer” must be conducted through a Federal Firearms Licensee (“FFL,” a licensed gun dealer). The FFL is required to process the transfer as if he or she is selling a firearm out of his or her own inventory.  (Complaint at 21)

What the Constitution Says

The 2008 Heller case sustained the constitutionality of background checks only as specifically applied to commercial sales; however, HB 1229 requires background checks prior to many temporary and non-commercial transfers of firearms between private individuals.

Can a de-facto prohibition on private sales or transfers of firearms meet constitutional standards?

Since the mechanism for performing background checks on private transfers requires the participation of a third-party entity (a Federal Firearms Licensee, or FFL) but cannot compel participation of any licensee nor force assumption of legal liability for such participation, HB13-1229 effectively prohibits otherwise legal private transfers.  As summarized in the complaint (Sheriffs Complaint at 251)

In practice, therefore, HB 1229 amounts to a prohibition, rather than a regulation, of the covered sales and temporary transfers. As such, it is a violation of the Second Amendment right to bear arms, which includes the right to sell or temporarily transfer such arms.

Conclusion:

The recently-enacted Colorado legislation – HB13-1224, banning certain “ammunition feeding devices” and HB13-1229, controlling private sales or transfers of firearms – clearly “infringes” upon individual rights secured and protected under the 2nd and 14th Amendments to the United States Constitution.  In addition, both pieces of legislation are practically unenforceable, constitutionally vague, and lend themselves to uneven, arbitrary enforcement “based on the personal predilections of individual law enforcement officers or jurisdictions” (an additional violation of the due process clause under the 14th Amendment).  Any court with fealty to the rule of law (or constitutional precedent) will strike both.

It is likely that, given the intensity of the ongoing political and policy debate, the case will be appealed, no matter the outcome – potentially all the way to the Supreme Court of the United States.  If so, this case could profoundly alter the legal precedents on gun rights nationwide, and for years to come.

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.