The legal challenge to the constitutionality of the "gun legislation" rammed through the 2013 Colorado state legislative session that made Colorado 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 is wrapping up the second and final week of trial proceedings - with tremendous potential implications for law and public policy on the state and national level.
The political question on the wisdom and public acceptance of the legislation appears to have been resoundingly answered with the first-ever, historic recall of two sitting state legislators (now former Senate President John Morse, and former state senator Angie Giron) and the resignation of a third (former state senator Evie Hudak) facing a looming recall campaign.
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 also 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 (originally filed by 55 of 62 of Colorado's elected Sheriffs) to the permissibility of the most prominent pair of the 2013 legislature's 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 Plaintiffs - led by Colorado Sheriffs and joined by numerous public-policy organizations, industry groups, and individual citizens - advance five major claims under the lawsuit, as listed below in the Final Pre-Trial Order:
- Claim 1: C.R.S. § 18-12-302 (HB 1224) – Prohibition of the Possession, Sale, or Transfer of Magazines Violates the Second and Fourteenth Amendments of the United States Constitution
- Claim 2: C.R.S. § 18-12-302 (HB 1224) – Grandfather Clause Permitting Possession of Magazines With a Capacity Greater than 15 Rounds Only if the Magazine was (1) Owned as of July 1, 2013; and (2) the Individual has Maintained “Continuous Possession” of the Magazine Violates the Second and Fourteenth Amendments of the United States Constitution.
- Claim 3: C.R.S. § 18-12-302 (HB 1224) – Grandfather Clause Permitting Possession of Magazines With a Capacity Greater than 15 Rounds Only if the Magazines were (1) Owned as of July 1, 2013; and (2) the Individual has Maintained “Continuous Possession” of the Magazine is Unconstitutionally Vague Under the Fourteenth Amendment of the United States Constitution.
- Claim 4: C.R.S. §§ 18-12-112 and 18-12-302 (HB 1224 & 1229) Violate the Americans with Disabilities Act.
- Claim 5: C.R.S. § 18-12-112 (HB 1229) – Restrictions on Firearm Sales and Temporary Transfers Violate the Second and Fourteenth Amendments of the United States Constitution.
Plaintiffs noted in the introduction to their Final Trial Brief that
The Tenth Circuit follows the two-step analysis most circuits have adopted for Second Amendment challenges to state and local regulations of firearms in the wake of Heller and McDonald. The Court first should consider whether the regulation burdens Second Amendment rights. If it does, then the burden shifts to the government to justify the restriction based upon a sliding scale.
(Depending on the demonstrated severity of the burden on the exercise of rights protected under the Second Amendment, the "sliding scale" ranges from 'strict scrutiny' (for "severe" infringements) - through 'heightened scrutiny' (for "significant" infringements) to 'intermediate scrutiny' (for less "substantial" infringements); and the government has the burden of proving that restrictions imposed are “substantially related to an important government objective”).
Plaintiff argued, both in the Final Trial Brief and in witness statements presented at trial this week and last, that the infringement of rights protected under the Second Amendment were severe or substantial, and that the government "can offer no evidence that any public benefit is derived from such an onerous scheme" as the magazine ban and "universal" background check mandates imposed on citizens and therefore failed to meet any level of scrutiny for infringing upon fundamental rights.
The Defendants (the Colorado Attorney General, arguing in defense of the legislation enacted by the state legislature and signed into law by Colorado Governor John Hickenlooper) argued in the Governor's Trial Brief that the legislation is merely on the “periphery of the Second Amendment right” rather than a substantial infringement of a core, fundamental constitutional right.
The Attorney General's arguments did agree with Plaintiff that “the rigor of judicial review will depend on how close the law comes to the core of the Second Amendment right and the severity of the burden on that right” - however, the AG argued that the 'sliding scale' should be moved all the way to the left, "requiring the party challenging the law’s constitutionality to demonstrate that it substantially burdens the Second Amendment right before applying any type of heightened scrutiny." (Governor's Brief at 8)
Plaintiffs Witnesses at trial this week and last amply documented how the legislation substantially or severely infringed upon their exercise of fundamental rights guaranteed under the Second and Fourteenth Amendments - as well as the disparate impact on the disabled plaintiffs additionally sanctioned under the Americans with Disabilities Act (ADA).
Defendants Witnesses countered with emotional testimony on mass shootings (Sandy Hook, Tucson, Aurora, and even Columbine) without confirming a nexus between any effect of the challenged legislation and the mass shootings to which the legislation is rhetorically linked.
In short: the government has failed to prove how restricting the constitutional rights of all citizens - effectively, disarming the innocent and potential victims - would serve any public policy purpose in preventing violent crime.
The 2013 Colorado legislation – both 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.
Read more about the Colorado gun case in these articles:
- Considering the Constitutionality of recently-enacted Colorado "gun laws"
- "Colorado gun-control laws go on trial: Here's why more than fifty sheriffs say they're illegal" (Westword, 31 Mar 2014)
- "Lawsuit over Colorado’s gun laws has its day in court" (Daily Caller, 31 Mar 2014)
- “Gov. Hickenlooper, sheriffs compromise on Colorado gun law” (Colorado Springs Gazette)
- “Challenge to Colorado’s new gun regs remain, but agreement reached on some” (Denver Post)
- “Sheriff, state agree on gun-law language” (9News)
- “First Major Success in Lawsuit Challenging New Gun Control Laws” (Independence Institute)
- Colorado Gun Case (reference site with complete legal filings and official statements)