Colorado gun battle has moved to court

The 54 county sheriffs from Colorado who have challenged two pieces of gun-control legislation passed by Democrats in the state Legislature this year — and the many Coloradans who support the sheriffs — lost their first battle in federal court Wednesday. But it was a relatively minor skirmish in what promises to be a long legal battle.

U.S. District Judge Marcia Krieger rejected a request from the sheriffs to issue an injunction to prevent a ban on high-capacity ammunition magazines from being enforced. That ban officially took effect July 1.

The sheriffs argued that the law is too vague to implement, particularly with respect to the definition of a high-capacity magazine and how existing magazines may be grandfathered in if they have been in “continuous possession” of the owner.

However, Krieger noted that Colorado Attorney General John Suthers and his staff have agreed to redraft technical guidance on these and other key provisions of the law, so there was no need for the injunction.

The much larger question on both the ban on high-capacity magazines and another state law requiring background checks for online and private gun sales is whether they violate the Second Amendment to the U.S. Constitution. And, no matter how a federal court in Denver ultimately rules on that issue, it is all but guaranteed that the cases will ultimately end up before the U.S. Supreme Court.

As we have said before, the 54 sheriffs, including Mesa County Sheriff Stan Hilkey, have a right and even a responsibility to mount a legal challenge to legislation which they must enforce, but which they believe is constitutionally suspect.

We’re not as convinced as the sheriffs that either the ban on high-capacity magazines or the requirement for background checks on private gun purchases is unconstitutional. However, we and many others question whether the bills passed in Colorado — particularly the ban on high-capacity magazines — will have any substantial effect in preventing future mass-murder attacks, such as those that occurred at an Aurora theater last summer and a Newtown, Conn., school in December.

And that could be a critical question as this legal gun battle moves forward.

As a column on these pages noted a few weeks ago, federal judges and ultimately the Supreme Court will have several levels of legal scrutiny to consider as they attempt to determine whether the laws are constitutional. If they choose the highest level, strict scrutiny, then Colorado must demonstrate that the laws are necessary to achieve a compelling state interest — in this case, preventing mass murder. The state must also show the laws are narrowly tailored to achieve that interest.

Exactly how the court will ultimately rule is impossible to predict. There is much legal exchange still to come. But now the courts, not lawmakers or members of the public, will determine what’s consitutional. And that’s as it should be.


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As Thursday’s editorial (“Colorado gun battle has moved to court”) implies, the core legal question presented by the County Sheriffs’ lawsuit is whether Colorado’s newly-effective “gun laws” in any way “infringe” on the Second Amendment.  If not, the lowest level of legal scrutiny requires only a “rational basis” for constitutionality.

In Heller, our Supreme Court held that denial of the individual right to “keep and bear” handguns for self-defense was unconstitutional, but reaffirmed that “the right secured by the Second Amendment is not unlimited” and does not preclude prohibitions on the possession of “dangerous and unusual weapons”.

Moreover, while the Second Amendment protects at least some citizens’ right to “keep and bear” at least some kinds of firearms (at least for self defense), it is entirely silent as to both the acquisition and design of “arms” and as to quantities of ammunition – perhaps because our “Founders” had no knowledge of any firearms capable of discharging more than one round without cumbersome reloading. 

Therefore, because both background checks and bans on machine guns and “cop killer” bullets have already been deemed constitutional, our courts should conclude that neither expanded background checks nor a 15-round magazine capacity limit violates the Second Amendment.

Consequently, Colorado’s new “gun laws” need only further a “legitimate governmental interest” – even if only marginally ameliorating a legislatively-perceived threat to public safety and/or to law enforcement officers (as with machine guns and “cop killer” bullets)—and need not “have any substantial effect on preventing future mass-murder attacks”.

Indeed, such attacks may not be preventable at all – since most are perpetrated by clearly demented individuals arguably enabled by our culture of gun violence.  But each such attack refocuses lawmakers’ attention on the broader implications and effects of that pervasive “gun culture” and affords an opportune occasion to proactively counter them.

I have found that very best way to keep someone from shooting at you is to shoot back at them or let the thought of that possibility in their mind guide their actions.

Dear Virginia:

You have just exposed the Achilles Heel of the gun culture.  If you are a Black female in Florida who discharges a warning shot to scare off her abusive ex-husband, you get 20 years in prison.

Under “Stand Your Ground”, once you have deliberately established that you are “armed and dangerous”, anyone who “fears” you can shoot you first and ask questions later.

gun control means hitting the target three times in a row. Should you feel intimidated by that “choice”, you should find another way to defend yourself. The pestilence of being afraid of those that would pursue, invade, rob, or otherwise threaten you should have an easy time at your home. “I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it.” I have a Vietnamese battle axe if you prefer?

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