Claim: Boulder Assault Weapons Ban Forces Gun Owners Into the Closet

The Independence Institute's Jon Caldara is the lead plaintiff in a lawsuit against Boulder's recently enacted assault weapons ban. But in talking about the suit, he goes well beyond a traditional defense of the Second Amendment, arguing that the measure discriminates against gun owners in ways Boulderites would never permit if the persons targeted were gay.

"Boulder has traditionally tried to welcome different people to the community," Caldara says. "It had a registry for same-sex couples before they could legally marry, so it helped people get out of the closet. But what Boulder is doing now is putting gun owners back into a closet. And that goes against everything Boulder claims to stand for."

That's nonsense in the view of Boulder City Council member Sam Weaver, who was part of the unanimous vote in favor of the measure, which is formally known as Ordinance 8245. He sees the lawsuit's multiple claims of constitutional violations as an example of "throwing spaghetti at the wall to see what sticks. They're attempting to make this a federal case, but I think most of that is going to be tossed out on the face of it."

The introduction to the Boulder assault weapons ban begins with a recounting of the February 14 shooting at Marjory Stoneman Douglas High School in Parkland, Florida, that focuses particularly on the AR-15 assault rifle used by the gunman. "Considering these events," the intro goes on, "the city council directed staff to draft a ban on assault weapons, bump stocks and high capacity magazines. The proposed ordinance...would impose such a ban."

Here's the description of the weapons prohibited under the rule:

(a) All semiautomatic action rifles with a detachable magazine with a capacity of twenty-one or more rounds.
(b) All semiautomatic shotguns with a folding stock or a magazine capacity of more than six rounds or both.
(c) All semiautomatic pistols that are modifications of rifles having the same make, caliber, and action design but a short barrel or modifications of automatic weapons originally designed to accept magazines with a capacity of twenty-one or more rounds.
(d) Any firearm which has been modified to be operable as an assault weapon as defined herein.
(e) Any part or combination of parts designed or intended to convert a firearm into an assault weapon, including a detachable magazine with a capacity of twenty-one or more rounds, or any combination of parts from which an assault weapon may be readily assembled if those parts are in the possession or under the control of the same person.

Anyone living in Boulder who owns a weapon that falls under this umbrella must either remove it from city limits, render it permanently inoperable, surrender it to the Boulder Police Department or, if eligible, submit to a background check and then register it with the BPD and promise to store it safely.

There are exceptions, however. High-capacity magazines and bump stocks are among the accessories banned outright under all circumstances, and ownership of prohibited firearms can't be transferred to another Boulder resident, even a family member. According to the ordinance, "Persons acquiring an assault weapon by inheritance, bequest, or succession shall, within ninety days of acquiring title, do one of the following: Modify the assault weapon to render it permanently inoperable; Surrender the assault weapon to the Boulder Police Department for destruction; Transfer the assault weapon to a firearms dealer who is properly licensed under federal, state and local laws; or Permanently remove the assault weapon from the City of Boulder."

To Caldara, such restrictions are hugely offensive on multiple levels. But they also strike him as being contrary to the Boulder he knows and loves.

"I've lived in Boulder since 1984, believe it or not," he says. "I have roots there. I was a columnist for the paper, I represented them in elected office on the RTD board, I started a business there, and my late daughter lays in a cemetery there; I've got a plot next to her for when my time comes. Boulder's my home."

In his mind, Ordinance 8245 "goes against everything Boulder claims to stand for. This is an attack on a political minority that the Boulder elite finds dirty, ignorant and dangerous. The message is pretty clear: 'We don't want your type in our lily-white, elitist town, so we will bully you out. We will separate you. We will force you to self-identify. You have to pay to go to the police and get a permission slip and be on a watch list just because of who you are and what we believe.' That's hateful, and it's bigotry."

Weaver begs to differ. He points out that he's a gun owner, but he differentiates possessing a firearm designed for self-defense from "weapons that are intended to kill people efficiently" such as the AR-15. He views mass shootings as "outsized incidents that prey on people's psyches, and they're particularly insidious for people who inhabit public spaces but don't carry weapons themselves."

After the 2016 shooting at Orlando's Pulse nightclub, which killed 49 people and wounded dozens more, Weaver considered pushing an assault weapons ban for Boulder, so when councilmember Jill Grano took up the initiative following the Parkland attack, he eagerly signed on. In his words, "We respect that most owners of firearms are responsible, but we also realize that the prevalence of weapons, including assault weapons, lead to our really high rate of gun violence in the United States. So we felt it was really important to get this right."

Caldara and his fellow plaintiffs, the Boulder Rifle Club, Bison Tactical and Tyler Faye, clearly feel Boulder missed the mark. The suit, filed under the auspices of the Mountain States Legal Foundation, argues that the ordinance violates the First, Fifth and Fourteenth amendments in addition to the Second. But Caldara also sees plenty of other flaws — among them "the loose definition of an assault rifle, which was obviously written by people who don't understand firearms. A rifle that has a pistol grip becomes an assault weapon. If it has a folding stock so you can travel with it more easily, it becomes an assault weapon. If they wanted to go after weapons of war, they should have gone after weapons of war. But these are not true assault weapons. They're mischaracterizing these guns to scare people."

Beyond that, he goes on, the ordinance "says we can't freely associate with other gun owners, and it takes our property and doesn't compensate us for it. That's a chilling effect. It makes you wonder: If someone is going to bring their weapon to the range, will someone turn them in?"

He argues, "This is about civil rights. If a group of people with what some people think of as a very dangerous belief structure came into town wearing hijabs, Boulder would bend over backwards to welcome them and make them feel safe. Not so for people with a belief structure like mine."

Boulder City Attorney Tom Carr and Boulder City Council member Bob Yates declined to comment to Westword about the ban because of the ongoing litigation, and four other city councilpersons and the City of Boulder spokesperson didn't get back to us, period. But Councilman Aaron Brockett, corresponding via email, notes, "I'm confident that the city's ban on assault weapons, bump stocks, and high capacity magazines is legal and constitutional and that it will stand up in court." And Mayor Suzanne Jones states: "Our ordinance is based on a provision of the Colorado state constitution that gives home rule cities the power to supersede state law on matters of local concern. public safety, in particularly that of our children, is a matter of utmost local concern and a top priority. With respect to the second amendment, the Supreme Court has made clear that the right to own guns is not unlimited, particularly with regard to assault weapons."

Grano, who initially brought the ordinance forward, concurs, writing, "I absolutely believe that the suit will stand up to a legal challenge. It’s important to remember that a ban on assault weapons was federal law for ten years, from 1994-2004. We have taken steps backward since then because of the NRA’s stronghold on American politicians. Four federal appeals courts in the last decade have upheld assault weapons bans. In fact, no federal appeals court has ever NOT upheld an assault weapons ban. I am proud of our city council for being proactive in protecting our citizens, and I look forward to our ordinance."

As for Weaver, he also thinks the measure will prevail in U.S. District Court, where it was filed, but he wouldn't be surprised if judges at the state level eventually weigh in. "Denver has had an assault weapons ban in place for a very long time, and Vail for almost as long," he points out, "but the Colorado Supreme Court hasn't ruled definitively on this yet. So I think the game is on the state level."

Indeed, he goes on, "I think our state legislators need to take a serious look at gun violence. The highest number of gun-violence deaths are from suicide, so I think red-flag legislation at the state level is really important to implement. If we know somebody is disturbed and has access to weapons, we should prevent them from harming themselves and others. The step we took is a small first step, but there are many other actions that are best enacted at the state level."

Of course, Boulder has long had a liberal reputation — but Caldara insists that "I've never felt as a gun owner that I was a politically bullied minority until now. Boulder at one point spawned both Naropa University and Soldier of Fortune magazine. It used to be a tolerant place, but now it's intolerant and it's hateful. It fears what it doesn't understand, and then it makes it illegal."

Caldara says he's spoken to a lot of other Boulder gun owners who feel as he does but are afraid to speak out — "but I'm standing up and saying, 'I will not comply. I won't go to the back of the bus.'"

On a personal level, this stance has caused "a lot of anxiety," he allows. "I have a fifteen-year-old daughter who's already been bullied about this at school. She's been yelled at, she's been called a murderer. My son has Down syndrome, so he doesn't understand this, but my daughter doesn't want me to go to jail. I'm concerned about the people I love being taunted because we're a political minority."

Click to read Jon Caldara, et al., v. City of Boulder, et al. and Boulder Ordinance 8245.

Editor's note: Boulder Mayor Suzanne Jones's comments arrived the afternoon after this post was published and have been added to the original text.