4 sheriffs join suit against new gun laws

Delta County Sheriff Fred McKee

Montrose County Sheriff Rick Dunlap

Sheriff Stan Hilkey

Sheriff Lou Vallario

Four local sheriffs joined 50 others from around the state Friday in a federal lawsuit against the state challenging two gun-control measures approved by the Colorado Legislature earlier this year.

The suit, filed in U.S. District Court in Denver, charges that the two new laws, limiting gun magazines to 15 rounds and background checks in all gun sales, violate the U.S. Constitution, specifically the right to possess firearms under the Second Amendment and due process rights under the Fourteenth Amendment.

Those two new laws were passed as part of a package of bills in response to recent mass shootings in Aurora and Connecticut last year, which also included measures to improve how the state deals with mentally ill patients.

But the sheriffs and the 20 other individuals, businesses and gun groups who also signed onto the suit said the two new laws would do nothing to prevent such tragedies.

“This was a solution that was created for a different problem apparently,” Mesa County Sheriff Stan Hilkey said. “They wouldn’t have prevented the Aurora shooting or the Sandy Hook shooting or anything else. I think it’s 
shameless to seize the opportunity to do something like that and use those events as the catalyst.”

Other local sheriffs who also signed onto the suit, which is being paid for through private donations, include Fred McKee, Lou Vallario and Rick Dunlap, sheriffs for Delta, Garfield and Montrose counties, respectively.

Attorneys for the suit, which is led by David Kopel, research director for the free-market think tank, the Independence Institute, said the new laws are unconstitutional on their face.

Colorado Attorney General John Suthers, who is required to defend the state against the suit, didn’t comment on it other than to say that his office will examine the two new laws.

“In defending the lawsuit as counsel for the state, the objective of the attorney general’s office will be to get court rulings on the legality of various aspects of the legislation as expeditiously as possible,” Suthers said in a statement. “Colorado citizens, and law-abiding gun owners in particular, deserve such clarification.”

Kopel said the two laws are unconstitutional, in part, because they are not enforceable and they target the public at large, rather than the criminal element or the mentally ill.

Kopel specifically cited a portion of laws that he said would turn gun owners into criminals if, for example, they asked a neighbor to hold onto their guns if their house burned down, particularly if the weapon had a magazine that held more than 15 rounds.

In a “technical guidance” memo written by Suthers on Thursday, which was done at the behest of Gov. John Hickenlooper when he signed HB1124 and HB1229 into law in March, said the laws could be seen that way.

“A gunsmith, hunting partner or acquaintance at a shooting range who acquires temporary physical custody of a large capacity magazine from its owner should not be considered ‘possession’ of the magazine so long as he or she remains in the owner’s physical presence,” Suthers wrote. “However, it would be unreasonable to construe the bill or this guidance to exempt a temporary transfer of a large-capacity magazine in connection with criminal activity.”

When debating the bills, Democrats in the Colorado Legislature argued that a recent U.S. Supreme Court decision, District of Columbia v. Heller, made it clear that the Second Amendment is not an absolute right, saying that there can be legal exceptions to it.

They specifically cite the majority ruling in that case, which revolved around a blanket ban on all handguns in Washington, D.C., that was written by Justice Antonin Scalia, one of the more conservative members of the court.

He wrote that such exemptions can be extended to limits on the type of weapons that can be owned, bans on concealed carry, prohibitions on felons and the mentally ill from owning firearms, the imposition of conditions on the commercial sale of guns and the creation of gun-free zones in “sensitive places,” such as schools and government buildings.

Kopel, however, argues in the lawsuit that the two new laws fit none of those exceptions.

“This bills do not amend Colorado’s long-standing laws forbidding gun possession of various categories of persons who have proven themselves to be dangerous,” he writes. “They do not affect the carrying of guns in ‘sensitive places.’ They do not set ‘conditions or qualifications’ on the ‘commercial sale’ of arms. HB1229 applies only to noncommercial transfers, and to short-term transfers, which do not involve any type of sale.”

Kopel said he will ask the court for a temporary stay of the laws while the suit works its way through the courts, which he said could take years.

But if the court doesn’t grant that stay, sheriffs and other law enforcement will be required to enforce the laws when they go into effect July 1 even if they don’t agree with them, and Hilkey said he’s no exception.

The sheriff, however, said that while enforcing those laws won’t be a priority, he can’t ignore them, either.

“It’s certainly not within my power or authority, as much as people would like it to be, to declare what’s constitutional and unconstitutional,” he said. “But I certainly have all of the authority and it’s within my rights to declare what the resources of the sheriff’s office are to be used for. It’s just not a priority to run out and inspect everyone’s magazines.”


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“A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed”. 

Those familiar with our Supreme Court’s inconsistent and incoherent interpretations of the Second Amendment should commend Sheriff Stan Hilkey, et al., for joining in the constitutional challenge to Colorado’s recently enacted “gun laws” – particularly when they are doing so at minimal taxpayer expense (assuming that Attorney General John Suthers diligently defends the statutes’ constitutionality).

As public officials sworn to uphold our Constitution, county sheriffs are entitled to an unambiguous determination of “what the law is”.  As elected officials answerable to voters, they are understandably inclined to reflect the views of their supporters.  As law enforcement officers, the public relations benefit of the Sheriffs’ participation may help their subordinates avoid confrontations with constituents armed with assault rifles.

In Heller, Justice Scalia effectively erased the “prefatory clause” from the Founders’ text by giving it no practical effect.  Nevertheless, the Second Amendment is totally silent about the government’s authority to regulate the design, manufacture, and sale of “arms” in interstate commerce and does not limit its power to tax them under Article I, Section 8.

Likewise, while the Second Amendment guarantees most citizens the right to “keep and bear arms” (at least for self-defense), nothing therein constrains governmental power to “regulate” how such “arms” are acquired.  Therefore, impliedly, just as the government could order all “able bodied men” capable of serving in a “militia” to obtain specified weapons, it could also tax those sales, require their registration, confiscate weapons from tax avoiders, and/or prohibit criminals, slaves, and the insane from acquiring them.

Hopefully, by resolving ambiguities in Second Amendment jurisprudence, the Sheriffs’ lawsuit will contribute a valuable public service – but not achieve the result they desire.

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