Colorado gun-control laws: Here's why 55 sheriffs think they're illegal

By Michael Roberts Wed., May 22 2013 at 10:15 AM

Sheriff Justin Smith.

As we noted last week while covering the tragic death of Anastasia Adair, who accidentally killed herself with a new assault rifle, Larimer County Sheriff Justin Smith and 54 colleagues have joined a complaint against newly passed Colorado gun-control laws, including a ban of all magazines that can hold more than fifteen rounds and a requirement for universal background checks on gun purchases. What are the arguments against them? The Independence Institute's Dave Kopel, who helped assemble the document (it's on view below), lays out the sheriffs' concerns. According to Kopel, the two laws, known as HB 1224 and HB 1229, "violate the Second Amendment and the Fourteenth Amendment" of the U.S. Constitution, as well as "the Americans with Disabilities Act" -- hence, the decision to file in United States District Court, where the case will be handled by Judge Marcia Krieger.

Judge Marcia Krieger.

The magazine restrictions are particularly onerous when applied to the disabled, Kopel believes. "The ADA requires state and local governments to make accommodations for disabled people, particularly in regard to major life activities," he says. "And many disabled people have less ability when they're attacked in their home to retreat to a point of safety or get behind cover from which they can change a magazine. They may have less mobility, or some might have only one arm, for example.
"So it's more difficult for them to change magazines than do other people -- and therefore, even if the magazine ban were constitutional in general, which we argue it is not, the people with relevant disabilities are entitled to reasonable accommodations to larger magazines."
Of course, exceptions for the disabled wouldn't be necessary if both laws are struck down.
What troubles Kopel about the magazine ban? First and foremost, he maintains that while the bill on the subject seems to only prohibit mags that support more than fifteen rounds, it actually "bans almost all magazines."

A thirty-round magazine.

The reason? A line in the bill nixing magazines that can be readily converted to fit more rounds. Since such magazines are used for semi-automatic handguns and rifles -- and because an estimated 82 percent of handguns and at least one-third of rifles manufactured in the U.S. fit in this category -- he sees the result as "a de facto gun ban even broader than the one that was struck down in D.C. v. Heller," a Supreme Court case that tackled prohibitions against handguns in the District of Columbia. We've included the D.C. v. Heller decision below, as well as a 9News report about the issue originally broadcast in March that Kopel recommends.
As Kopel points out, "The governor's office and the sponsor of the bill both agree that the magazine ban outlaws all magazines that have removable base plates or floor plates" -- e.g., the kind that can be adapted for more rounds. And while Governor John Hickenlooper is relying on guidance from the office of Colorado Attorney General John Suthers to apply the rule narrowly, such an approach doesn't bring with it any guarantees that the interpretation will stand for all time."
Why not?
"It's not binding on anyone," Kopel says. "You can't force the Denver Police Department to enforce what they would have if the bill had been less aggressively drafted. The words of the statute are what they are, and it can be changed at any time by any future attorney general. If [Democratic state senator] Morgan Carroll is attorney general two years from now, there's no guarantee it will stick around. So our view is, the guidance does not solve the problem of the small magazine ban in practice."

An AK-47.

The complaint also attacks the magazine ban on another front. "The decision in D.C. v. Heller says you can't ban arms that are typically used by law-abiding citizens for lawful purposes -- something that's also called the common-use test. For the purposes of this case, then, all we need to do to win is to show that the fifteen-round magazine ban violates the common-use test. And handgun magazines up to twenty are, in fact, in common use by law-abiding citizens for lawful purposes.
"There's also the fact that sheriffs and deputies frequently carry such magazines both as duty guns and personal firearms -- and that's because they're often the best choice for lawful self-defense in defense of yourself and others."

Dave Kopel.

Kopel acknowledges that "you wouldn't have 55 sheriffs signing on to this if it was a ban of 100-round magazines. But magazines of up to twenty rounds for handguns and thirty rounds for rifles easily pass the common-use test." Regarding the background checks, Kopel highlights the regulations about temporary transfers of firearms. "There are some exceptions in there that are good," he acknowledges, "but a lot of situations aren't covered. Sheriff Justin Smith talked about someone who flees their house because it's on fire and leaves their firearms with friends for safekeeping. Under the bill, if you don't get the guns in 72 hours, you're a criminal.
"So we challenge the constitutionality of requiring advance government permission for innocent temporary transfers in the first place. We don't take a position on the constitutionality of background checks on actual private sales as a theoretical matter, but we do say that if you're going to do this, there has to be a functional system so people can obey the law -- and the system is by its very nature non-functional."
Kopel says that "the only people who can get the background check for an actual sale are federally licensed firearms dealers, who can charge a fee of no more than $10. But the plaintiffs in our case, which include some federally licensed firearms dealers, have said they're not going to do the check for ten bucks, because you have to do three pages of federal paperwork for which the gun store is in great legal peril, including possible license revocations and felony prosecutions is there are mistakes made on this form.
"And instant background checks in Colorado are far from instant. They sometimes take hours or days. So it's not going to be worth it for the large majority of firearms stores to do it, and that's especially impactive for those in rural areas, where it may be a long way to a store. You don't want to drive ninety minutes to somewhere and then find the store won't do the check."

Rhonda Fields, flanked by Governor John Hickenlooper and Lieutenant Governor Joe Garcia.

The complaint doesn't stop there, taking on issues such as a "continuous possession" requirement that Kopel says is utterly impractical when it comes to gun repair, among other things. But he also sees the laws as casting aspersions on legal gun owners. "Representative Fields" -- that's Rhonda Fields, who co-sponsored many of the gun bills heard during the recently concluded legislative session -- "repeatedly said the only purpose for magazines with fifteen rounds is to kill a lot of people at once. And we say that's flagrantly false. Sheriffs own those magazines to save innocent lives, not kill a lot of people -- and that's the same reason so many other law-abiding people own these magazines.
"When you base a law on a fact that is obviously not true, and a fact that is essentially a group libel of an entire class of people, there's not a legitimate government purpose behind them," he continues. "Just the opposite. It's an illegitimate purpose, an expression of prejudice and animus -- invidious discrimination, to use legal terms."
In Kopel's opinion, this makes the gun laws similar to Amendment 2, an early '90s measure that set out to ban "special rights" conferred to homosexuals; it was eventually overturned by the U.S. Supreme Court. As in that case, "you can't just have a law to express the sponsor's hateful prejudices about other people. That's not a legitimate purpose for the law. It's a blood libel to claim that the only reason anybody in this state has a magazine of more than fifteen rounds is because that person wants to murder a lot of innocent people at once."
Look below to see the aforementioned 9News report about the magazine ban, followed by the complaint against the gun laws and D.C. v. Heller, the Supreme Court case frequently cited by Kopel.

Colorado Sheriffs Complaint Regarding Colorado Gun Laws

District of Columbia v. Heller

More from our News archive: "Anastasia Adair accidentally kills herself with new assault rifle."