State’s new gun-control laws upheld by court

The Colorado Statesman

A U.S. District Court judge on Thursday released a 50-page ruling that systematically and carefully tears apart a lawsuit filed by gun rights supporters, upholding Colorado’s laws banning high-capacity ammunition magazines and requiring universal background checks.

More than 30 groups and individuals sued the state over the gun control laws passed by the Democratic-controlled legislature last year. Plaintiffs are already planning an appeal of the ruling.

Sheriffs from the majority of Colorado’s counties originally dominated the lawsuit. But Chief Judge Marcia S. Krieger ruled early on in the case that the sheriffs did not have standing to sue in their official capacity. She said they could file suit as individuals, but not as county sheriffs.

A handful of county sheriffs remained on as individual plaintiffs. One of those sheriffs was John Cooke of Weld County, who has been vocally opposed to the laws and faces term limits in January. But Krieger ruled that Cooke did not show standing to challenge even as an individual because he is exempt as law enforcement.

Other individuals who sued were also deemed to not have standing because evidence didn’t indicate that the laws would harm them.

The majority of the suit, however, included groups representing firearms dealers, farmers, sportsmen and gun rights supporters. But Krieger also raised concerns about their standing, pointing out, “The Second Amendment protects a fundamental individual right, and it is not clear that entities have any rights protected by the Second Amendment.”

The civil trial itself lasted for two weeks in late March and early April at U.S. District Court in Denver.

The lawsuit rested on claims that the 2013 laws violated the Second Amendment.

It also suggested that the laws were vague and therefore unenforceable, including a provision in the magazine ban over “continuous possession” related to a grandfather clause in the law. Sheriffs have been concerned that the law requires them to determine whether a magazine was in existence prior to the ban, and whether a magazine had been in “continuous possession” since enactment of the ban, something the sheriffs say is impossible to do.

The lawsuit alleged that the magazine law is so vague that it violates the people’s right to due process under the 14th Amendment.

Another claim in the lawsuit is that the laws violate the Americans with Disabilities Act by impeding disabled persons ability to self-defense.

Krieger was careful to point out in the written ruling that the court’s job was not to analyze the merits of the legislation.

“A court does not act as a super-legislature to determine the wisdom or workability of legislation,” wrote Krieger. “Instead, it determines only whether legislation is constitutionally permissible. A law may be constitutional, but nevertheless foolish, ineffective, or cumbersome to enforce.”

The first aspect of the case Krieger looked at was the magazine issue. The law in 2013 banned high-capacity ammunition magazines of more than 15 rounds. It included a grandfather clause for people who possessed such magazines before July 1, 2013.

But Krieger raised questions as to whether the Second Amendment would apply to the case, suggesting, “The Supreme Court does not equate the Second Amendment ‘right to keep and bear arms’ to guarantee an individual the ‘right to use any firearm one chooses for self-defense.’

“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,” Krieger added. “The only limitation imposed is how frequently they must reload their weapons.

“No evidence presented here suggests that the general ability of a person to defend him or herself is seriously diminished if magazines are limited to 15 rounds,” she continued in her written ruling.

Krieger piled it on by pointing out that “of the many law enforcement officials called to testify, none were able to identify a single instance in which they were involved where a single civilian fired more than 15 shots in self-defense.”

Critics of the law have also been saying that it is useless because criminals are still going to get their hands on magazines that hold more than 15 rounds, despite the law. But Krieger didn’t want to touch that argument.

“Hypothetically, this may be true, but the Court declines to speculate about the subjective intentions and means of unspecified criminals involved in unspecified gun violence,” Krieger wrote.

On the background checks law, which also imposed fees related to the expansion, Krieger once again questioned the application of the Second Amendment.

The universal background check law aimed to close a loophole that allowed private sales and transfers without a background review.

Critics of the law believe the Second Amendment protects an individual’s right to borrow a firearm for lawful purposes, including for self-defense, and that such right is infringed by the statute’s requirement.

But Krieger disagreed, stating, “The Court has grave doubt that a law regulating (as opposed to prohibiting) temporary private transfers of firearms implicates the Second Amendment’s guarantee at all.

“Contrary to the Plaintiff’s position, however, the burden imposed on the right is no more severe than the law already provides with regard to firearm sales,” added Krieger. “Colorado already requires a background check to be conducted on the buyer in a commercial firearm sale, and thus, the operation of [universal background checks] does nothing more than impose the same restrictions on acquisition by loan.

“It does not prevent a person otherwise permitted to obtain a firearm from acquiring one, nor subject that person to any greater burdens than he or she would face if acquiring the weapon commercially,” she continued.

Another concern regarding the background check law raised by opponents involves the ability to find dealers licensed to perform private checks, especially in rural parts of the state. Some dealers are refusing to perform the checks because of costs associated with it.

But Krieger pointed out that there are more than 600 firearms dealers in Colorado that are actively performing private checks, with an average wait time of 15 minutes.

“Ronald Sloan, the director of the Colorado Bureau of Investigation, testified that background checks on private transfers are denied at a rate as high as, if not higher than, the denial rate of sales at retail or gun shows,” explained Krieger.

As for the vagueness of the laws, especially the magazine ban, Krieger didn’t buy that argument either.

“The Court finds that despite the lack of a precise statutory definition for ‘continuous possession,’ it is clear what conduct the statute as a whole prohibits and permits,” explained Krieger.

And on the argument that the laws burden disabled individuals in their ability to defend themselves, Krieger said there was no concrete evidence to support the claim.

“Such anecdotal evidence, in the absence of meaningful statistical analysis comparing the effect of the statute on the Plaintiffs and able-bodied comparators is insufficient to carry the Plaintiffs’ burden of demonstrating that the statutes cause any disparate effect,” Krieger wrote.

AG and Governor applaud ruling

Gov. John Hickenlooper, a Democrat, stopped short of praising the gun laws, but applauded the attorney general’s office for defending the state in the lawsuit.

Hickenlooper has been criticized lately after he walked into a meeting with county sheriffs in Aspen earlier this month and apologized to the group who felt that they were ignored last year when lawmakers crafted the gun control bills.

The governor agreed with the sheriffs that the law is difficult to enforce, telling the group that he didn’t expect the legislation to make it to his desk. But he has maintained that he still supports the gun control laws he signed.

“I commend the attorney general who wasn’t crazy about either of those laws, but he represented the state very well,” Hickenlooper said on Friday. “I think it’s probably time to put it behind us and move forward.

“Lord knows we are moving towards a full employment situation for appeals attorneys and people who do this kind of law, but I think we would be better served looking forward rather than looking back,” the governor continued.

When asked if he wished the court ruling upholding the laws came before he made his remarks to the sheriffs, Hickenlooper laughed, “That’s the story of my life.” But he said he would not have changed his remarks, despite the backing by the court.

“I don’t think it would have been different either way…” he said.

“I’d go up again. We weren’t trying to win them over… I apologized because they felt they weren’t heard, but I don’t think that’s criminal,” explained Hickenlooper.

Attorney General John Suthers, a Republican who isn’t a fan of the laws, praised the court for its decision.

“Like Judge Krieger, the Colorado Attorney General’s Office has never asserted that the laws in question are good, wise or sound policy. As it does in all cases, the AG’s office has fulfilled its responsibility to defend the constitutionality of the Colorado law in question,” Suthers explained in a statement. “The Attorney General’s Office fully expects the case to be appealed and looks forward to final resolution of the issues as soon as possible.”

Appeal coming

Indeed an appeal is coming, according to attorney David Kopel, who represents the small group of sheriffs who remained as litigants in the case. The U.S. 10th District Court of Appeals would hear that case.

Kopel suggested that Krieger improperly applied rulings from higher courts.

“The judge is not there to rule on the wisdom of the law, but the constitution, and the higher court precedents say that when people’s rights are infringed, you have to look at whether the infringements meaningfully advance public safety. You have to look at the means and the ends. We showed the court unrebutted evidence that the means are a failure.”

Kopel spoke at a news conference Thursday at the Independence Institute, a libertarian think thank that has opposed the laws from the beginning. He is a research director with the Independence Institute. Kopel said the ruling did not surprise him.

“It was within the range of what we considered possible,” he said. “Compared to a lot of other cases, all the attorneys left at the end of the trial with a lot of uncertainty… This was not shocking to us, nor would a different result have been shocking to us.”

Joining the news conference was Cooke, who spoke on behalf of county sheriffs. Cooke pointed to Hickenlooper’s comments before the sheriffs in Aspen.

“Two weeks ago, John Hickenlooper truthfully told the sheriffs the he knows the magazine bans won’t do any good. We presented extensive evidence to the court showing that he was right,” said Cooke.

“Two weeks ago, John Hickenlooper truthfully told the sheriffs ‘we really screwed up’ the background bill,” added Cooke. “He was right.”

But one former lawmaker who experienced the fallout of the gun control laws firsthand said she has no regrets. Evie Hudak, the former Democratic senator from Westminster, resigned after gun rights groups targeted her for a recall election. Just as proponents were preparing to hand in signatures to trigger a recall election, Hudak resigned.

She resigned following two successful recall elections of Senate Democrats in Colorado Springs and Pueblo, where President John Morse and Angela Giron were ousted from office over their support of gun control. “It just goes to show that they were reasonable legal measures, and I knew that going into it, and it just was vindication for all of us that we did do the right thing,” said Hudak.

“Some of us paid a pretty big price for it, but it was worth it,” added Hudak. “As John Morse always said, ‘If you’re a true public servant, then you’re in the game to make things better.’”

Peter@coloradostatesman.com