U.S. District Judge Marcia Krieger has ruled that Colorado's controversial gun laws don't violate the constitution in a judgement Dave Kopel, who assembled a lawsuit endorsed by assorted businesses and dozens of Colorado sheriffs, has already pledged to appeal.
In May 2013, shortly after the suit was filed, Kopel detailed his arguments for Westword. Here's a look at why he believes the state's ban of all magazines that can hold more than fifteen rounds and a requirement for universal background checks on gun purchases are unconstitutional, as well as Krieger's reasons for deciding otherwise, supplemented by photos, two videos and three original documents, including the just-issued ruling.
Kopel told us that the two laws, known as HB 1224 and HB 1229, "violate the Second Amendment and the Fourteenth Amendment" of the U.S. Constitution, as well as "the Americans with Disabilities Act."
The magazine restrictions are particularly onerous when applied to the disabled, Kopel feels.
"The ADA requires state and local governments to make accommodations for disabled people, particularly in regard to major life activities," he said. "And many disabled people have less ability when they're attacked in their home to retreat to a point of safety or get behind cover from which they can change a magazine. They may have less mobility, or some might have only one arm, for example.
"So it's more difficult for them to change magazines than do other people -- and therefore, even if the magazine ban were constitutional in general, which we argue it is not, the people with relevant disabilities are entitled to reasonable accommodations to larger magazines."
Of course, exceptions for the disabled wouldn't be necessary if both laws are struck down.
What troubles Kopel about the magazine ban? First and foremost, he maintains that while the bill on the subject seems to only prohibit mags that support more than fifteen rounds, it actually "bans almost all magazines."
The reason? A line in the bill nixing magazines that can be readily converted to fit more rounds. Since such magazines are used for semi-automatic handguns and rifles -- and because an estimated 82 percent of handguns and at least one-third of rifles manufactured in the U.S. fit in this category -- he saw the result as "a de facto gun ban even broader than the one that was struck down in D.C. v. Heller," a Supreme Court case that tackled prohibitions against handguns in the District of Columbia.
We've included the D.C. v. Heller decision below, as well as a 9News report about the issue originally broadcast in March 2013 that Kopel recommended.
As Kopel pointed out, "The governor's office and the sponsor of the bill both agree that the magazine ban outlaws all magazines that have removable base plates or floor plates" -- e.g., the kind that can be adapted for more rounds. And while Governor John Hickenlooper is relying on guidance from the office of Colorado Attorney General John Suthers to apply the rule narrowly, such an approach doesn't bring with it any guarantees that the interpretation will stand for all time."
"It's not binding on anyone," Kopel said. "You can't force the Denver Police Department to enforce what they would have if the bill had been less aggressively drafted. The words of the statute are what they are, and it can be changed at any time by any future attorney general. If [Democratic state senator] Morgan Carroll is attorney general two years from now, there's no guarantee it will stick around. So our view is, the guidance does not solve the problem of the small magazine ban in practice."
The complaint also attacked the magazine ban on another front.
"The decision in D.C. v. Heller says you can't ban arms that are typically used by law-abiding citizens for lawful purposes -- something that's also called the common-use test," Kopel noted. "For the purposes of this case, then, all we need to do to win is to show that the fifteen-round magazine ban violates the common-use test. And handgun magazines up to twenty are, in fact, in common use by law-abiding citizens for lawful purposes.
"There's also the fact that sheriffs and deputies frequently carry such magazines both as duty guns and personal firearms -- and that's because they're often the best choice for lawful self-defense in defense of yourself and others."
Kopel acknowledged that "you wouldn't have 55 sheriffs signing on to this if it was a ban of 100-round magazines. But magazines of up to twenty rounds for handguns and thirty rounds for rifles easily pass the common-use test."
Regarding the background checks, Kopel highlighted the regulations about temporary transfers of firearms. "There are some exceptions in there that are good," he conceded, "but a lot of situations aren't covered. Sheriff Justin Smith talked about someone who flees their house because it's on fire and leaves their firearms with friends for safekeeping. Under the bill, if you don't get the guns in 72 hours, you're a criminal.
"So we challenge the constitutionality of requiring advance government permission for innocent temporary transfers in the first place. We don't take a position on the constitutionality of background checks on actual private sales as a theoretical matter, but we do say that if you're going to do this, there has to be a functional system so people can obey the law -- and the system is by its very nature non-functional."
According to Kopel, "the only people who can get the background check for an actual sale are federally licensed firearms dealers, who can charge a fee of no more than $10. But the plaintiffs in our case, which include some federally licensed firearms dealers, have said they're not going to do the check for ten bucks, because you have to do three pages of federal paperwork for which the gun store is in great legal peril, including possible license revocations and felony prosecutions is there are mistakes made on this form.
"And instant background checks in Colorado are far from instant. They sometimes take hours or days. So it's not going to be worth it for the large majority of firearms stores to do it, and that's especially impactive for those in rural areas, where it may be a long way to a store. You don't want to drive ninety minutes to somewhere and then find the store won't do the check."
The complaint doesn't stop there, taking on issues such as a "continuous possession" requirement that Kopel said is utterly impractical when it comes to gun repair, among other things. But he also saw the laws as casting aspersions on legal gun owners.
"Representative Fields" -- that's Rhonda Fields, who co-sponsored many of the gun bills heard during the recently concluded legislative session -- "repeatedly said the only purpose for magazines with fifteen rounds is to kill a lot of people at once. And we say that's flagrantly false. Sheriffs own those magazines to save innocent lives, not kill a lot of people -- and that's the same reason so many other law-abiding people own these magazines.
"When you base a law on a fact that is obviously not true, and a fact that is essentially a group libel of an entire class of people, there's not a legitimate government purpose behind them," he continued. "Just the opposite. It's an illegitimate purpose, an expression of prejudice and animus -- invidious discrimination, to use legal terms."
In Kopel's opinion, this makes the gun laws similar to Amendment 2, an early '90s measure that set out to ban "special rights" conferred to homosexuals; it was eventually overturned by the U.S. Supreme Court. As in that case, "you can't just have a law to express the sponsor's hateful prejudices about other people. That's not a legitimate purpose for the law. It's a blood libel to claim that the only reason anybody in this state has a magazine of more than fifteen rounds is because that person wants to murder a lot of innocent people at once."
Judge Krieger takes fifty pages to shoot down these various assertions. She argues that the three individuals who presented evidence in the case -- Weld County Sheriff John Cooke, Colorado resident Dylan Harrell and former Coloradan David Bayne -- lack standing to challenge the laws. Because Bayne doesn't live here anymore, he's unlikely to be impacted by the laws, Krieger determined, while Harrell's possession of verboten magazines is covered by the law's grandfather clause and Cooke testified mainly about an employee survey, not his personal gun use -- and besides, he's retiring in 2015.
Regarding the magazine ban, Krieger believes "the statute's impact on a person's ability to keep and bear (use) firearms for the purpose of self-defense is not severe" because "this statute does not prevent the people of Colorado from possessing semiautomatic weapons for self-defense, or from using those weapons as they are designed to function. The only limitation imposed is how frequently they must reload their weapons."
As for the background checks, Krieger writes:
There is no evidence that all, or even most, firearms dealers refuse to perform private background checks, or that it would be impossible for many, or most, who would receive a weapon to obtain a background check. Rather, the evidence shows that there are more than 600 firearms dealers in Colorado that are actively performing private checks, and that, currently, it takes an average of less than fifteen minutes for a check to be processed by the Colorado Bureau of Investigation. Although the statute may result in logistical difficulties or inconveniences for some individuals who want to privately borrow a firearm for more than 72 hours, it does not facially infringe their Second Amendment right to do so.
Krieger adds that "whether or not the legislature's policy decision was wise or warranted is not a question properly presented to this Court" -- a point also stressed by Colorado Attorney General John Suthers in a post-ruling statement.
"Like Judge Krieger, the Colorado Attorney General's Office has never asserted that the laws in question are good, wise or sound policy," Suthers is quoted as saying.
Suthers's office "fully expects the case to be appealed," an AG's office release confirms, "and looks forward to the final resolution of the issues as soon as possible."
Look below to see a 7News report about the latest developments, the aforementioned 2013 package from 9News about the magazine ban, Judge Krieger's ruling, the original complaint against the gun laws and D.C. v. Heller, the Supreme Court case frequently cited by Kopel. It's also referenced in Krieger's decision.
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More from our News archive circa May 2013: "Colorado gun-control laws: Here's why 55 sheriffs think they're illegal."