Second Amendment
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.
CU Board of Regents statewide candidates both support new legislation to allow the university to again ban guns on campus
Despite a long, hard-fought court battle to secure the same rights for Colorado citizens at the University of Colorado applying elsewhere in the state (under state law and the Colorado Constitution) to lawfully carry concealed weapons for personal protection, the University of Colorado administration and the CU Board of Regents have sought to end-run and undermine the recent Colorado Supreme Court ruling striking down CU’s comprehensive campus gun ban. Recently, the University of Colorado revised its formerly comprehensive gun ban policies to more restricted in scope, but still legally suspect, policies imposing a gun ban in student housing and at ticketed campus events (policies that are likely to draw an additional, and costly, legal challenge – and, as noted in a previous guest commentary on this site (CU Regents Unwise to Consider Residence Hall Gun Ban,
The courts do tend to take a dim view of those who try to squash fundamental rights.
For that reason, this year’s elections to the CU Board of Regents hold more than casual interest to those concerned about constitutional and statutory rights to “keep and bear arms.” Unfortunately, on the gun rights issue, both candidates for the single statewide (“at-large”) CU Regent seat appear to share similar anti- gun rights views. Appearing together on the 9News “Your Show” television program Sunday morning (23 Sept 2012), both candidates were asked about their views on the recent Colorado Supreme Court ruling striking down the CU Gun Ban, and more generally about the issue of concealed carry on campus.
“Should the CU Board of Regents accept the ruling and allow for those over 21 with a license to carry or should they continue trying to work around it?” (question submitted by Kris West) “What is your position on concealed carry on campus? Do you agree with proposed legislative attempts to outlaw the right in the face of the Colorado Supreme Court decision that the university has no power to do so?” (question submitted by Joe Mierzwa)
Democrat CU Board of Regents candidate Steve Ludwig reiterated his position in opposition to allowing licensed concealed-carry permit-holders to exercise their rights on university-administered property, although he did concede that “CU lost a lawsuit, so we have to allow concealed carry on campus.”
Ludwig, at least, was consistent.
Republican CU Board of Regents candidate Brian Davidson, however, seems to have flip-flopped on the position he took during the primary campaign (during which he claimed to “support the 2nd Amendment” and licensed concealed carry) and joined Ludwig in supporting legislation (such as a bill proposed by Boulder Democrat Claire Levy) allowing the university to again ban guns (and violate the rights of all Coloradoans) on campus:
Chris Vanderveen (9News YourShow Host): “Do you want the legislature to get involved, Brian?” (video at 5:24)
Brian Davidson, Republican candidate for CU Regent At-Large: “I do, and I’d actually take a little bit different stance – that is, having this issue on each board table across the state of Colorado, I think is simply going to be a fight, it’s going to have, uh… induce chaos, um, and take away from the issues at hand, of affordable education, quality education, uh, et cetera. I’d actually like the legislature to decide whether or not higher education institutions should or should not be exempt from that, uh, from that bill, and take the debate away from the board table.”
Of course, the Colorado legislature already DID “decide whether or not higher education institutions should or should not be exempt from that, uh, from that bill” when passing the Colorado Concealed Carry Statute (C.R.S. 18-12-214) in 2003 with a definitive “NOT exempt” – as confirmed by both the March 2012 Colorado Supreme Court ruling, and the more sweeping Colorado Court of Appeals April 2010 ruling:
Institutions of higher education not exempt from the express authorization of permittees to carry concealed handguns “in all areas of the state”. The concealed carry act, § § 18-12-201 to 18-12-216, satisfies the “unless otherwise provided by law” provision of article VIII, section 5(2), of the state constitution by manifesting a clear and unmistakable intent to subject the entire state to a single statutory scheme regulating concealed handgun carry, subject to specified exceptions. Students for Concealed Carry on Campus, LLC v. Regents of Univ. of Colo., — P.3d — (Colo. App. 2010).
CU’s Gun Ban policies needlessly endanger the safety of students, staff, faculty, and visitors by putting them at greater risk of criminal predation, as ”gun free zone” = “target-rich environment” for criminals.
The continued support of the CU Board of Regents – both the current majority and candidates for election this year – for policies and legislation violating the rights of a segment of Colorado citizens (CU students, staff, faculty, and campus visitors) is deeply disturbing.
Allowing responsible adults to exercise a fundamental constitutional right – affirming the right of licensed adult concealed-carry permit holders to responsibly exercise their inherent right of armed self-defense – is not only good law, it is good policy.
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.
New University of Colorado policies banning guns in residences flouts Colorado Supreme Court ruling, state law
The University of Colorado is once again violating the constitutional and statutory rights of students (and violating state law) with recently-announced policies imposing a ban on permitted concealed-carry of guns at some CU facilities:
In what it calls a contractual matter between landlord and tenant, the University of Colorado-Colorado Springs is putting freshman housing off-limits to concealed carry permits and also will ban permitted guns from large campus events.
The University of Colorado at Boulder announced virtually identical (and identically illegal) policies:
University of Colorado’s Boulder campus announced Thursday that it will bar guns from undergraduate residence halls and provide designated off-campus housing for those hoping to bring their weapons to the university.
The University of Colorado administration’s attempt to re-label the renewed CU Gun Ban as a mere “contractual matter” is a transparent attempt to end-run a recent Colorado Supreme Court ruling affirming the universal applicability of a state-issued concealed-carry permit – striking down CU’s earlier campus-wide comprehensive gun ban.
Unfortunately for CU’s attempt to circumvent state law via the too-clever-by-far mechanism of declaring the gun ban a “contractual matter between landlord and tenant,” as a state-supported institution governed by an elected Board of Regents, the University is not just a private “landlord” but is a quasi-public accommodation, subject to state law. Additionally, as noted in a previous guest commentary on this site (CU Regents Unwise to Consider Residence Hall Gun Ban),
The courts do tend to take a dim view of those who try to squash fundamental rights.
The line of argument pursued by the CU administration with the new policies of implementing a gun ban via “contractual” forfeiture of a fundamental legal right is deeply troubling, and would set a disturbing precedent if upheld in the inevitable legal challenge(s) to the CU Gun Ban policies. If a government agency or institution can obligate citizens to contractually “sign away” their rights otherwise obtaining under state law and/or the constitution, do those rights actually exist in any meaningful sense?
The casual disregard for this fundamental principle breezily displayed by CU’s chief legal counsel is also disturbing:
“Ultimately, I’m not going to say that the issue won’t have to be resolved by the courts.”
So yes, the CU administration is basically daring students to sue for their constitutional and statutory rights; let’s hope that someone takes them up on that challenge. It will be a costly proposition for the University (which the cash-strapped CU system can ill afford), but since the current CU Board of Regents refused to exercise their oversight authority to prevent it (“punting” to chancellors rather than providing guidance or policy direction at the April board meeting)
The authority to implement residence hall gun policies, the university stated in the release, was delegated to the chancellors at CU-Boulder by the Colorado Board of Regents last spring.
the University of Colorado will once again be wasting tuition and taxpayer dollars in court.
As noted by attorney Jim Manley of Mountain States Legal Foundation, who won the Supreme Court challenge to campus gun bans in Colorado,
the Colorado Supreme Court was very clear in its ruling that you cannot regulate concealed carry in any way that conflicts with state law.
CU’s Gun Ban policies needlessly endanger the safety of students, staff, faculty, and visitors by putting them at greater risk of criminal predation, as ”gun free zone” = “target-rich environment” for criminals.
Allowing responsible adults to exercise a fundamental constitutional right – affirming the right of licensed adult concealed-carry permit holders to responsibly exercise their inherent right of armed self-defense – is not only good law, it is good policy.
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.
CU Regents Unwise to Consider Residence Hall Gun Ban
The Colorado Supreme Court recently overturned the gun ban at state universities for concealed carry permit holders. In response, University of Colorado administrators, led by Chancelor Phil DiStefano, now wants the CU Regents to circumvent the Court by implementing a contractual clause in housing contracts which would forbid guns within any of the campus residence halls.
Normally, such a contractual waiver of rights might be acceptable to the courts – if it was truly voluntary. In this case, however, it is difficult to see how such a clause could be voluntary when CU requires its freshmen to live on campus for a year. Thus, for first-year students, the supposed contractual waiver effectively becomes an imposed regulation.
This would be an extraordinarily foolish policy to attempt. Forcing students to waive their Second Amendment rights in order to comply with campus housing requirements would effectively escalate CU’s dispute with the Colorado constitution into a full blown conflict with the Constitution of the United States and earn the ire of the U.S. Supreme Court.
In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court of the United States declared that the Second Amendment of the U.S. Constitution protects an individual’s fundamental right to own and keep a firearm -specifically within his home. Further, any law or regulation requiring guns to be stored at home in a locked container, trigger locked, or disassembled will violate Second Amendment rights. Because CU requires its freshmen to live in the campus residence halls for a year, these halls effectively become the students’ homes and CU must respect the rights articulated in the Heller case. CU cannot force students to waive fundamental rights. Any attempt to do so will only result in massively expensive and ultimately doomed litigation which the cash strapped universities can ill afford.
If CU truly wanted to ban guns in campus residence halls, it has only two options. First, it could abolish its residence hall requirement for freshmen, thus giving students a true choice as to where to live and whether to waive their Second Amendment rights. Otherwise, it could choose to provide armed guards and security checkpoints at the entrances to each residence hall to provide the protection that would otherwise come from being armed. Though both of these options would at least give the university a plausible justification for a policy banning guns in residence halls, they are by no means certain to withstand scrutiny under the Heller rule. The courts do tend to take a dim view of those who try to squash fundamental rights. It also seems especially inappropriate when coming from universities – the very institutions that best articulated and steadfastly championed human rights since the Enlightenment.
CU and other universities would be wise to embrace that lauded tradition and cease their opposition to the basic rights of our citizenry. Thus, instead of attempting to thwart the Second Amendment, universities might even profit by requiring firearms training and safety classes for campus residents to promote both safety and good citizenship. That would not only respect the rights of their students, it would teach them how to responsibly exercise those rights. After all, is that not one of the primary purposes of a Classical Liberal education?
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Julian Dunraven is a corporate transactional lawyer and adjunct professor of Law and Criminal Justice at Everest College.
Colorado Supreme Court upholds Colorado Court of Appeals rejection of CU Gun Ban
The Colorado Supreme Court rightly rejected the specious argument advanced by the attorney for the CU Board of Regents (which voted 5-4 to appeal the Colorado Court of Appeals rejection of CU Gun Ban), who 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 supreme court holds that the Concealed Carry Act’s comprehensive statewide purpose, broad language, and narrow exclusions show that the General Assembly intended to divest the Board of Regents of its authority to regulate concealed handgun possession on campus. Accordingly, the supreme court agrees with the court of appeals that, by alleging the Policy violates the CCA, the Students for Concealed Carry on Campus have stated a claim for relief. Because the supreme court affirms on statutory grounds, it does not consider the Students’ constitutional claim.
The court upheld the Colorado Court of Appeals April 2010 ruling that 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.
Interestingly, the Colorado Supreme Court chose not to address the claims for relief under Colorado Constitution article II, section 13, (which affirms an individual right to bear arms in self-defense) – leaving the Court of Appeals ruling on the constitutional right intact while avoiding giving that language the imprimatur of a Colorado Supreme Court ruling.
The courts – both the Colorado Supreme Court in Monday’s ruling, and the Colorado Court of Appeals in its more sweeping April 2010 ruling were right on the law, and reinforced the right policy, too.
There is NO compelling state interest to bar responsible adults (Colorado CCW permits can only be obtained by people 21 years or older, with a clean criminal and mental health background check passed, who obtain training in both physical and legal aspects of using firearms) the exercise of a fundamental right.
From a “safety” standpoint, barring guns from college campuses places students, staff, faculty, and visitors at greater risk of criminal predation, as ”gun free zone” equals “target-rich environment” for criminals.
Further, there has been NO documented instance of a concealed-carry permit holder misusing firearms on any Colorado college campus, as noted in the amicus brief filed by the Colorado sheriffs opposing the CU Gun Ban.
Allowing responsible adults to exercise a fundamental constitutional right – affirming the right of licensed concealed-carry permit holders to responsibly exercise their inherent right of self-defense – is not only good law, it is good policy.
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.
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.
Colorado Supreme Court takes aim at gun rights, agrees to take CU Gun Ban case
“No man’s life, liberty, property, or constitutional rights are safe while the Colorado Supreme Court is in session.” (With apologies to Mark Twain)
Clear The Bench Colorado has tracked the threat posed by the Colorado Supreme Court to our constitutional right to keep and bear arms in Colorado for some time (including attempts to levy what amounts to an unconstitutional poll tax on firearms sales and permits, the CU Regents ban on responsible and licensed concealed-carry and the more recent attempted CSU campus ban on concealed carry, along with debates and recent developments in both cases). After the CU Board of Regents voted to appeal the ruling by the Colorado Court of Appeals which in April struck down the University of Colorado 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.
On Monday, the opening salvo of that attack arrived, as the Colorado Supreme Court agreed to consider the CU Regents appeal of last April’s ruling by the Colorado Court of Appeals (which upheld state law and the rights of Colorado citizens against CU’s illegal concealed carry ban covering all campus areas).
The CU Board of Regents legal brief to the Colorado Supreme Court is due in approximately 40 days; the brief of the respondents (SCCC, represented by the Mountain States Legal Foundation) along with any amicus curiae (“friend of court”) briefs are due 30 days after that.
The composition of the court (and thus, the likelihood of the law being followed in ruling on this case) may experience a change as a result of the intervening elections…
As Clear The Bench Colorado noted at the time, the Court of Appeals ruling was both legally sound and clear in its rejection of the CU Board’s assertion of extra-constitutional authority:
The Colorado Court of Appeals ruled Thursday that the University of Colorado has no authority to bar students or visitors from lawfully carrying guns on campus. [Ed. emphasis added]
Note that the CU Board of Regents is asserting its authority to ban licensed concealed carry not just by students, but by ANY responsible adult who has undergone the background checks and training (and mounds of paperwork) to apply for and receive a license to carry concealed – on ANY CU property.
The Colorado Court of Appeals ruling in the case highlights the critical importance of judges who rule in accordance with the law (especially the Constitution, which exists to protect the rights of individuals and limit the power of government) and underlines the fact that Colorado does have many such judges at various levels (including Judge Christine Habas, who ruled – correctly – that the Mill Levy Tax Freeze” was unconstitutional before being overturned by the Mullarkey Majority). Unfortunately, we just don’t have enough of them (good judges, that is) on the Colorado Supreme Court.
The Colorado Court of Appeals ruling in the case also substantiated our assertion that the CU and CSU bans violate “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 Colorado Supreme Court decision to hear the CU Regents appeal of this ruling puts another set of Coloradans’ constitutional rights at risk.
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) 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 ability of individuals to exercise their 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.
Our courts – sworn to uphold our Constitution and act as protectors of our constitutional rights – must occasionally be reminded of that fact.
Stick to your guns – Defend YOUR constitutional and statutory rights, and exercise YOUR right to vote “NO” on retaining the 4 (er, 3 remaining) ‘unjust justices’ of the Mullarkey Majority (Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right of self-defense, your right to vote on tax increases, your right to defend your home or business from government abuse of eminent domain powers, and your right to enjoy the benefits of the rule of law, not rule by activist, agenda-driven “justices.”
Support Clear The Bench Colorado with your comments (Sound Off!), your contributions, and your “NO” vote in November 2010 to keep these unjust justices from returning for another 10-year term!
CU Board of Regents votes to violate law, student and citizen rights in appealing gun ban reversal to Colorado Supreme Court
Clear The Bench Colorado has tracked the threat posed by the Colorado Supreme Court to our constitutional right to keep and bear arms in Colorado for some time (including attempts to levy what amounts to an unconstitutional poll tax on firearms sales and permits, and of course the CU Regents ban on responsible and licensed concealed-carry and the more recent CSU campus ban on concealed carry, along with debates and recent developments in both cases). Today, in another momentous development in Colorado Politics, the CU Board of Regents voted to appeal the ruling by the Colorado Court of Appeals which in April struck down the University of Colorado ban on licensed permit-holders carrying firearms on campus (Court tosses CU gun ban).
As Clear The Bench Colorado noted at the time, the Court of Appeals ruling was both legally sound and clear in its rejection of the CU Board’s assertion of extra-constitutional authority:
The Colorado Court of Appeals ruled Thursday that the University of Colorado has no authority to bar students or visitors from lawfully carrying guns on campus.
The Colorado Court of Appeals ruling in the case highlights the critical importance of judges who rule in accordance with the law (especially the Constitution, which exists to protect the rights of individuals and limit the power of government) and underlines the fact that Colorado does have many such judges at various levels (including Judge Christine Habas, who ruled – correctly – that the Mill Levy Tax Freeze” was unconstitutional before being overturned by the Mullarkey Majority). Unfortunately, we just don’t have enough of them on the Colorado Supreme Court.
The Colorado Court of Appeals ruling in the case also substantiated our assertion that the CU and CSU bans violate “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 lawlessness of the CU Board members voting with the majority – voting to violate the clear letter of the law, and voting to violate the legal rights of its students along with the rights of any citizens who might find themselves within the (open to the public) campus area – is betting on a similar lawlessness on the Colorado Supreme Court, which has consistently demonstrated a contempt for the clear letter of the Colorado Constitution and for the rule of law, generally. The case serves as a powerful reminder that our constitutional and statutory rights are under constant threat of being “interpreted” out of existence by the current majority on the Colorado Supreme Court.
Stick to your guns – Defend YOUR constitutional and statutory rights, and exercise YOUR right to vote “NO” on retaining the 4 (er, 3 remaining) ‘unjust justices’ of the Mullarkey Majority (Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right of self-defense, your right to vote on tax increases, your right to defend your home or business from government abuse of eminent domain powers, and your right to enjoy the benefits of the rule of law, not rule by activist, agenda-driven “justices.” Support Clear The Bench Colorado with your comments (Sound Off!), your contributions, and your “NO” vote in November 2010 to keep these unjust justices from returning for another 10-year term!
Unconstitutional College Campus Gun Bans in retreat – CSU rescinds ban after CU loses case, but counterattack may still push back to Colorado Supreme Court
Clear The Bench Colorado has tracked the threat posed by the Colorado Supreme Court to our constitutional right to keep and bear arms in Colorado for some time (including attempts to levy what amounts to an unconstitutional poll tax on firearms sales and permits, and of course the CU Regents ban on responsible and licensed concealed-carry and the more recent CSU campus ban on concealed carry, along with debates and recent developments in both cases). Today, in another stunning development in Colorado Politics and another great victory for individual rights and the rule of law, the CSU Board of Governors rescinded the (illegal) ban on licensed concealed firearms carry on campus (finally complying with state law).
As the CSU spokesperson explained, the Governing Board really had no choice, in light of the recent Court of Appeals ruling in Students for Concealed Carry on Campus v. Regents of the University of Colorado. There, the unanimous three-judge panel ruled that Colorado’s Concealed Handgun Act, which is explicitly preemptive, had no implicit exception for state institutions of higher education. The University of Colorado has not yet announced whether it will petition the Colorado Supreme Court for certiorari in that case.
Although this may be the start of a new trend (a view taken in an editorial by the Colorado Springs Gazette, “College gun bans may start crumbling“) – and we would join them in applauding such a development – we must remember that our constitutional and statutory rights are under constant threat of being “interpreted” out of existence by the current majority on the Colorado Supreme Court, which has consistently demonstrated a contempt for the clear letter of the Colorado Constitution and for the rule of law, generally. This victory for individual rights remains just one legal challenge away from being set aside – and that challenge may yet be coming:
The CU Board of Regents has not rescinded its ban and may appeal the appellate court’s decision to the Colorado Supreme Court.
Stick to your guns – Defend YOUR Constitution, and exercise YOUR right to vote “NO” on retaining the four unjust justices of the Mullarkey Majority (Justices Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right of self-defense, your right to vote on tax increases, your right to defend your home or business from government abuse of eminent domain powers, and your right to enjoy the benefits of the rule of law, not rule by activist, agenda-driven “justices.” Support Clear The Bench Colorado with your comments (Sound Off!), your contributions, and your “NO” vote in November 2010 to keep these unjust justices from returning for another 10-year term!
CU Gun Ban overturned by Colorado Court of Appeals; next stop Colorado Supreme Court?
Clear The Bench Colorado has tracked the threat posed by the Colorado Supreme Court to our constitutional right to keep and bear arms in Colorado for some time (including attempts to levy what amounts to an unconstitutional poll tax on firearms sales and permits, and of course the CU Regents ban on responsible and licensed concealed-carry and the more recent CSU campus ban on concealed carry, along with debates and recent developments in both cases). In a stunning development in Colorado Politics and a great victory for individual rights and the rule of law, the Colorado Court of Appeals yesterday struck down the University of Colorado ban on licensed permit-holders carrying firearms on campus (Court tosses CU gun ban).
The Colorado Court of Appeals ruled Thursday that the University of Colorado has no authority to bar students or visitors from lawfully carrying guns on campus.
The Colorado Court of Appeals ruling in the case highlights the critical importance of judges who rule in accordance with the law (especially the Constitution, which exists to protect the rights of individuals and limit the power of government) and underlines the fact that Colorado does have many such judges at various levels (including Judge Christine Habas, who ruled – correctly – that the Mill Levy Tax Freeze” was unconstitutional before being overturned by the Mullarkey Majority). Unfortunately, we just don’t have enough of them on the Colorado Supreme Court.
The Colorado Court of Appeals ruling in the case substantiated our assertion that the CU and CSU bans violate “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.
However, although the case represents a substantial victory for individual rights and the rule of law, it is just one battle; the war is far from over, as the Denver Post article points out:
After Thursday’s ruling, the lawsuit may go back to district court, or CU can appeal the decision to the Colorado Supreme Court. The university could also repeal the ban if it so chooses.
Ken McConnellogue, spokesman for the University of Colorado system, said school officials are weighing options. Regents will likely discuss the matter at a regularly scheduled board meeting next week.
CU is being urged by a “national anti-gun group” to appeal the case, which may yet end up before a Colorado Supreme Court with a demonstrated track record of hostility to the constitutional rights of individuals in Colorado to bear arms in defense of themselves and others.
Stick to your guns – Defend YOUR Constitution, and exercise YOUR right to vote “NO” on retaining the four unjust justices of the Mullarkey Majority (Justices Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right of self-defense, your right to vote on tax increases, your right to defend your home or business from government abuse of eminent domain powers, and your right to enjoy the benefits of the rule of law, not rule by activist, agenda-driven “justices.” Support Clear The Bench Colorado with your comments (Sound Off!), your contributions, and your “NO” vote in November 2010 to keep these unjust justices from returning for another 10-year term!