U.S. Law Shield
July 1, 2014
U.S. Law Shield
Colorado Law Updates

Dear Coloradans,

On June 26th, in the case of Colorado Outfitters Association et. al. v. Governor John Hickenlooper, Civil Action No. 13-cv-01300-MSK-MJW, the U.S. District Court of Colorado ruled that last year�s laws prohibiting high capacity magazine restrictions and requiring private party background checks were did NOT violate the 2nd Amendment. This action has had a particularly interesting history when it comes to the parties involved; click here to see U.S. Law Shield�s previous video on the sheriffs that were dismissed from the case.

The Court�s Reasoning

The court tackled two issues: whether Colorado�s high capacity magazine regulations and background check requirements violated the 2nd Amendment. Both the plaintiffs and the defendant argued over whether the regulations either did or did not impact the right to self-defense. The court, however, stated that it was not an issue of impacting the right to self-defense (as this does not appear in the 2nd Amendment itself), but whether it impacted the right to keep and bear arms (which is a condition precedent to self-defense). It cited the Supreme Court in the case of D.C. v. Heller, which described the right to keep and bear arms as �the right to possess those weapons that are in common use for self-defense purposes.� 554 U.S. at 612. The question then becomes, according to the district court, did these Colorado regulations burden the right of individuals to possess handguns for self-defense (the court seemed to focus on handguns, and not rifles, in their discussion).

With regard to high capacity magazines, the court stated that it was not an issue about whether or not semi-automatic handguns could be used, but how often it must be reloaded. It then simply stated that the cases and evidence introduced by the plaintiffs was not enough to establish that the ability of persons to defend themselves is seriously diminished if they are limited to a 15 round magazine. The court conclude that the evidence showed that the �brief pause� to reload or access another weapon in a self-defense scenario is relatively rare, and that the court did not believe that it adversely affected one�s success in self-defense.

The court, in a twist of legal logic, upheld the ban by actually citing the argument used by one of the plaintiff�s own expert witnesses, Massad Ayoob. The court cited his testimony in support of the government�s arguments. The court stated that large capacity magazines are used in gun violence and mass shootings, and that shooters will shoot continuously until the weapon runs out of ammunition (creating a pause that allows people to escape). In Mr. Ayoob�s statements that most students have a �spray and pray mentality,� the court uses this as evidence to support its opinion. The court also cited the fact Ayoob could only name 3 cases where individuals fired more than 15 rounds in self-defense, and that he trains his students to think as if the magazine capacity were smaller than its actual size to avoid spray and pray, in support for the State of Colorado�s assertion that the high capacity magazine ban did not negatively impact self-defense.

Finally, with regard to high capacity magazines, the court concluded that there was a substantial relationship between the important governmental policy of reducing gun violence and this high capacity magazine regulation, and therefore it was constitutional.

Note that this is not a conclusion based on the success of the regulation, but is instead conclusion on the �intermediate scrutiny� test for constitutionality, which requires that the law or policy furthers an important government interest in a way that is substantially related to that interest. In other words, this is only a test for whether there is a substantial relationship, not whether or not it will actually work.

With regard to the background checks on private sales, the court stated that the requirements on private gun sales were not any harsher than those on purchases from a licensed firearms dealer. Further, there was no evidence introduced that most dealers would not perform the private background checks. The court determined that the law is substantially related to the Colorado legislature�s important purpose in restricting firearm possession by ineligible persons, and therefore it did not infringe on the 2nd Amendment.

Practical Repercussions of the Court�s Decisions

What does this practically mean for firearm owners in Colorado? In the short term, this decision means that these laws are still in place and must be followed to avoid any unwanted, unfriendly attention from law enforcement; i.e., getting arrested! In the long term, the plaintiffs have stated that this decision will certainly be appealed (a process that could take many years to come to fruition, and could also still result in a loss). However, the real message is that it is up to the citizens of Colorado to effect change. Those who disagree with these laws should contact their legislators and express their discontent with the laws, and elect representatives (and if necessary a new governor) who will champion the repealing of these laws.
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U.S. Law Shield is pleased to announce two upcoming Firearms Law Seminars hosted by our friends at Centennial Gun Club! Seminar topics include the Law of Deadly Force in Colorado, Working With a Difficult Police Officer, Civil Liability, and more! The events will be held Thursday, July 17 and Thursday, July 31 at Centennial Gun Club from 6 to 9 p.m. Register today at www.GunLawSeminar.com for the seminar on July 17 or for the one on July 31.
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