Legal Issues

In Colorado, Gun Rights Lose Another Round

Colorado Gun Case

Gun owners lost another round in the courts last week when U.S. District Chief Judge Marcia Krieger ruled that Colorado’s new gun-control laws that limit the size of ammunition magazines and require universal background checks are not unconstitutional.

In her 50-page ruling in Colorado Outfitters Association et.al. vs. Governor John Hickenlooper, Krieger wrote, “A law may be constitutional, but nevertheless foolish, ineffective, or cumbersome to enforce.”Colorado Gun Case The suit by Colorado sheriffs acting as private citizens, several gun-rights groups, shooting organizations and firearms-parts businesses asserted that the ban on magazines that hold more than 15 rounds would prohibit gun owners from adequately defending themselves.

(Krieger ruled last year that the sheriffs could not sue the state in their official capacities but they could join the lawsuit as private citizens.) Krieger wrote, “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. Despite more than 40 years instructing individuals and law enforcement in defensive firearm use, the Plaintiffs’ expert witness, Massad Ayoob, identified only three anecdotal instances in which individuals engaging in defensive use of firearms fired more than 15 rounds, and not all of these successful defensive actions involved semiautomatic weapons.” Also, she added, “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. (Indeed, the record reflects that many law enforcement agencies, including the Colorado State Patrol, the Federal Bureau of Investigation, and the New York City Police Department equip their officers with 15-round or smaller magazines.) Anecdotal testimony from the Plaintiff’s lay witnesses was corroborative. Although they possessed large-capacity magazines, none had ever had the occasion to fire more than 15 rounds in an instance of self-defense.” On page 31 of the decision, she concluded, “At most, then, the statute’s burden on the exercise of self-defense is this: in the relatively rare circumstances in which sustained defensive fire is appropriate, the statute forces a brief pause to reload or access another weapon. The evidence presented does not establish that such circumstances occur frequently, affect very many, or that the pause to reload adversely affects one’s success in self-defense.

Krieger also cited a lack of evidence during the two week trial showing that requiring background checks under the new law infringed on the plaintiffs’ Second Amendment rights.

“While we respect the judge’s ruling today, we believe that it is plainly wrong on the law and on the facts,” Weld County Sheriff John Cooke said on the ColoradoGunCase.org website. “We will take this case to the Tenth Circuit Court of Appeals, and if necessary, to the United States Supreme Court. The [laws] are still unenforceable, and that is borne out in that there has not been one arrest on these two laws to date.”

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Comments (30)

  1. The judge obviously had not heard of the armed gun shop robbery in near North Augusta SC where two wounded dumbasses only escaped when the owner retreated to the rear of the store to get another 30-rd magazine for his AR-15. During the break in the firing, the wounded pair drove off and left their buddy there dead on the floor. The pair made it to a local Waffle House before where they pulled in and pleaded for medical assistance. IIRC, NYPD cops routinely shoot unarmed suspects upwards of 20 times.

  2. PSSSST;!
    I HAVE BEEN VOTING EVERY TWO YEARS. And my person never won in any race.
    Then again in evrry electoon the intelligent voters were vastly outnumbered by Republicans and Democrats.
    That has not changed since 1950.and still we
    vote; As they say; ” Hope Springs eterrnal!”

  3. The answer is to vote all the hypocrites and liberals that are like your Governor out of office! They have shown their true colors and have shown they have no regard for the Constitution or your rights!

  4. This is an answer to a fix, Elections have the consequent effects, Vote these and all of them OUT!!!!! Problem solved…………….

  5. Now, I havent read everyones comments, however those I did read were insiteful and accurate to the issue at hand. The 2nd amendment shall not be infringed. Thats the key phrase. Therefore any law removing that right from any u.s. Citizan infringes. That also means any law that manipulates said armament infringes as well. By true meaning, we have the right to arm ourselves how we see fit. That being said, if we are to fight a terranical government again, and that government being our own, we are under matched via the armament. Hense the 2nd amendment was infringed apon. Further more, the master and servent statement being pertrade in the comment analysis was accurate along with the unconstutionality of law being burdonsome in anyway and ineffective. The questions I still see looming, is when are we going to question the integrity of the courts? We need them held accountable for them allowing over reach by our state or federal lawmakers.

  6. Vote the bad guys out and replace with good sensible legislators. Then get the stupid laws off the books. Repeal the bad laws !

  7. The way that they try to justify this nonsense the next argument will be that as long as they allow only single shot .22’s then they have not violated the 2nd amendment because the are still “allowing” us to “keep and bear arms”.

  8. You are right I didn’t read your post. While you and I have the same basic view of the Master, servant issue that the police can’t be armed better then the public. None of what I’m saying has to do with the 2nd Amendment. The Master servant issue is a foundation of law and is a foundation of the U.S. Constitution.

    The Judges ruling that a law can be foolish, ineffective and cumbersome to enforce is counter the the whole point of this countries being. The war of independence was just as much about a King imposing foolish laws on the general public as it was about taxes. We the people threw out a King because of his foolish laws. Therefore, our law must be grounded in commonsense that is in the best interest of the general public, and that the general public would agree that serves their best interest.

    The judges ruling isn’t a 2nd Amendment issue. It is the issue that our Constitution requires laws of commonsense. Therefore, they can not be foolish, ineffective, or cumbersome to enforce. Those three things would render the law unconstitutional.

  9. I wish just once that a good lawyer would use the actual definition of the word “infringed”, as used in the 2nd Amendment, in our defense to overturn these crazy laws. Such unconstitutional decisions, by the word’s very definition in Webster’s dictionary, are clearly infringing on our second amendment right.

  10. The evidence presented does not establish that such circumstances occur frequently, affect very many, or that the pause to reload adversely affects one’s success in self-defense.

    If the pause to reload does not adversely affect one’s success, then why limit the magazine size in the first place?

  11. It’s not about self defense. It’s about the protection of our country by able bodied and modern equipped citizens for the purpose of thwarting all foriegn (or domestic) invasions… invaders whose ranks will not be bound by the near sighted stupidity of assinine retrictions.

  12. @ Frantbk: Your comment is somewhat along the same point I made on page 1, that was also agreed with by other readers.

    Assuming you didn’t read my original post, this is great because it shows many folks strongly share the same conclusive opinion. Maybe enough to force a greater change in regards to the Courts legislating from the bench.

  13. Krieger wrote, “A law may be constitutional, but nevertheless foolish, ineffective, or cumbersome to enforce.”

    This is the point they should argue about the judges ruling. If a law is foolish, ineffective, or cumbersome to enforce, then how is the law in the best interest of the health and welfare of the public at large. Which is the bases for most laws and their constitutional justification.

    The next question is the master servant issue. The police force is the servant of the people, but the servants are allowed to have more then 15 round magazines, and they have more training then most of the general public. The public, the masters, are then required to perform the same action of self defense with less then a servant.
    The argument then is if the master can’t have more then 15 rounds the servant can’t have more then 15 rounds to perform the same job of self defense.

    1. “Foolish” is a subjective judgment. “Ineffective” is irrelevant (to wit, the war on drugs is certainly ineffective but still it persists) as is “cumbersome.” Many if not most laws are extremely cumbersome to enforce. Constitutionality in particular is not related to any of the above.

      The problem with Constitutionality in the context of the Second Amendment is that the Government has adopted the position that the Amendment, which states that the right “shall not be infringed” actually means that it CAN be infringed as long as the infringement serves “An important objective of the Government”. Do some research… this is actually the grounds.

      Now, the problem comes about because the Bill of Rights came to exist strictly because the States and a group called the Anti-Federalists were afraid that the central Government would take too much control. Every one of the first ten Amendments is explicitly aimed at preventing this. Moreover, the objective of the Bill of Rights is clearly stated in its preamble:

      “The Conventions of a number of the States, having at the time of their adopting the Constitution expressed a desire in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government will best ensure the beneficent ends of its institution.”

      Please note that the Second Amendment thus is seen to have absolutely nothing whatsoever to do with crime prevention, self-defense or hunting. It is 100% exclusively about ensuring that the Government works for the people, and not the other way around.

      So the ten Amendments are those that are most important to prevent misconstruction and abuse of Federal power. This presents a bit of an enigma. The stated purpose of the Amendment is to keep the Federal Gov’t from abuse of its power. Yet the Gov’t allows itself, in an odd twist of logic, to violate the non-infringement directive whenever they deem it necessary to satisfy an “important objective of the Government.” What if the important objective is to grab too much control?

      Seems to me that this is the crux of the problem. “…shall not be infringed” cannot be interpreted to mean “… shall no be infringed except as the Gov’t deems necessary to meet its important objectives.” Since the point is to restrict expansive government control, “…shall not be infringed” needs to mean what it says. Clearly weapons that require special technology to maintain or even store, and therefore pose an obvious and major risk to the public, must be kept away from the public. This would be NBC weapons, for example. This is similar to the restriction on free speech that says you can’t hide behind the First Amendment to, for instance, incite a riot.

      Magazine restrictions; bullet buttons (yes I am in CA); class 3 firearms restrictions such as auto-sears (although you probably don’t need them), barrel length restrictions, or suppressors; smart weapons; CCW permits and so forth should not be subject to restrictions. I think such regulation is clearly against the intent as well as the letter of the Second Amendment.

      Just my opinion of course, but at the end of the day, “shall not be infringed” either means what it means, or it means nothing.

  14. I contend that Heller Decision permanently changed the 2nd Amendment and took militia clean out of the picture and but reinstated Common Law back into state hands.
    Under the enumeratoon vlause states habe Rights not grantrdbtp the federsl authority.
    Thenstate in miller wad of militia and common usage and fif indeed restrict posession of many weapons of abstle and caliber that were not
    deemed militia compatible.
    The states carry far broader powers to control weapons possessions than does the Federal as long ad yhe Rights enumrrsyed in Vondtitution sre not violated.
    I find no violayipdbof Constitutional law and no violatoons of fedrral powers either.

  15. If they pass any anti-gun laws – ANY- then they have their foot in the door to kill our rights. We have to fight these idiots to protect the Constitution

  16. Legal gun owners are not the problem. The fact that these anti-gun zealots continue to go after US and not the criminals or terrorists should tell you all you need to know. They are most frightened of an armed population per the 2nd Amendment, for the express purposes the 2nd Amendment was written…..to keep tyranny in check.

  17. Colorado can either go down the path of loss of 2nd amendment rights by voting democratic or they can vote for republicans. Simple as that. As long as the democrats are in charge they will pass gun restriction laws. Takes years to fight these in court, weeks to vote in and sign by the governor.

  18. While I don’t know specifics of the case, from the article, I think the judge and possibly the plaintiff’s attorney missed a key issue. Whether or not the capacity affects the ability of one to defend oneself is NOT the primary issue. The courts have ruled that one’s rights under the second amendment are subject to reasonable restrictions. Since that is the legal precedent, then any law restricting the second amendment must be reasonable. If, as the judge said, the law may be “foolish, ineffective, or cumbersome to enforce”, then how can if be a REASONABLE restriction. For it to be reasonable, it MUST provide more benefits to society than the restrictions on the individual’s rights.

    In the judges own comments she focused on the limited number of incidents where an individual needed to fire more that the 15 rounds. Even if there are no incidents, that is not the issue. Are there an overwhelming number of incidents in which a criminal was hindered by having fewer than 15 rounds; is there a substantial benefit to society. As the judge pointed out, there is a brief pause to reload. Therefore, the rounds are not relevant. Given this, limiting the rounds serves no public purpose that would justify restricting the rights of the law abiding. Therefore, the law CANNOT be said to be a reasonable restriction and must be unconstitutional.

  19. Don’t be idiots and post these weak a$$ dribble like I see above. Canada is weak and not a good model unless you are socialist/commie.
    2nd Amendment has nothing to do with hunting, it is about tyranny and keeping govt in check. Anyone who says you don’t need more than 15 rounds has never seen combat. I have two tours and I will take as many rounds as I can carry you sheep.

  20. Well we split the 2nd Amendment, no need fot militia, and have been reduced to quivelling over how many bullets we need to kill a perp in self-defense.
    Have relatives in Canada and while their rifle and hangun laws are quite restrictive they still have large and growing membership #’s in their gun culture.
    I would suggest that we beg our legislators to give us the same regulations, rules, fees license and permits to purchase guns and ammo as the Canadians .
    Would suggedt that we fast before our lawyers play games and we end up with no weapons at all unless we are gov emploees.
    We have hunted and efficiently killed game
    and man with 10 rounders and under for some 120 years.
    The Canadia rule on semi auto centerfires 5 rounds suck, but all it realy means is we would need to buy more mags .
    We are hoing to have to appease the majority of population and hell they love to run amuck and once aroused they will not just destroy your guns but purge you as being the real damgrr.
    Leys jist kids them npw and smile nicely ehile doing so.

    Yes it is possible in Canada to brable to buy a weapon but not the ammo.s and ammo and limitations as Canadians are living under

  21. I agree with G-man. It seems to me that the attorneys for the plaintiffs rolled over and played “dead.” The so-called “argument” by the judge in making her decision was full of holes and should have been respectfully (if that adjective can be applied to liberal judges) been thrashed by a response that would have overwhelmed it.

    “On page 31 of the decision, she concluded, “At most, then, the statute’s burden on the exercise of self-defense is this: in the relatively rare circumstances in which sustained defensive fire is appropriate, the statute forces a brief pause to reload or access another weapon. The evidence presented does not establish that such circumstances occur frequently, affect very many, or that the pause to reload adversely affects one’s success in self-defense.”

    A “brief pause to ‘reload’?” Where did the judge presuppose that such a “brief pause” was of no consequence in a “relatively rare instance” where defensive fire is “appropriate?” It could be equally argued that such a “brief pause” just might be brief enough to get a person in a remote Colorado location killed by a group of Muslim terrorists hell-bent on murdering one’s family.

    Why should the ordinary law-abiding citizen have to prove that a 10-round magazine limit is not “adequate?” The burden of proof should not have to be placed on anyone who is in the position of requiring more than a 10-round magazine, yet the judge has made this decision based on the “evidence,” as she calls it. When in an adrenalin-filled firefight to save one’s life and the lives of one’s family, it should not be necessary to have one’s hands tied behind one’s back by being restricted to a magazine capacity that has been arbitrarily and capriciously decided by some judge as being “adequate.”

    The liberal elitist idealist judge obviously knows little about firearms, other than what she must have read in the liberal-leaning biased media.
    She should have based her decision on the law, not her own tainted
    and obviously biased opinion that will affect only law-abiding citizen gun-owners. Does the judge feel that her (flawed) decision would affect these types of scum? Obviously not!

    http://www.asgraphic.org/videos/video382/index.htm

  22. Upon its surface and without my own in-depth analysis of the actual court proceedings, it initially appears this loss can be attributed to a shoddy performance by the plaintiffs’ attorneys. It is aggravating when a precedent in case law is set by the few, but affects the many.

    Again I am writing only in regard to the face value of the author’s article, but the examples cited from the Judge’s written opinion seem to have been easy arguments to win, had the attorneys been more experienced at better anticipating a state of preparedness for what appears to be relatively simple arguments.

    I know it’s easy to do some Monday-morning-quarterbacking after the fact, but it should have been argued that the right to self-defense per the Second Amendment is but only one part of the intended purpose, because to a greater extent such weaponry was actually intended to more closely match that required to keep a tyrannical government in check. Otherwise the Second Amendment serves no purpose. So I would appreciate hearing any judge’s attempt at a dissent over that argument.

    As well, a Judge should be forced to render an opinion on law enforcement’s need for such armament but not the citizenry. Since such armament is generally accepted as necessary for the defense of law enforcement, the same principal would apply equally to citizens; especially given the recent Supreme Court ruling that sustained our equal right to defend ourselves and property with a gun (DC v. HELLER).

    After the Heller ruling, the next logical argument is then – to what extent may we be armed? However, Justices simply couldn’t withstand an argument that implies their own hypocrisy which establishes one’s right to defend their self with a gun, but from the same bench also assume to know every conceivable way in which a proper defense should be mounted. And if they were to still insist on establishing limits (as they seem to be), it would be easy to argue that the standards by which a precedent should be set are the same levels as our boys in blue.

    If it is good enough for them, it should be the same for citizens. After all, citizens face the same dangers as officers. As a matter-of-fact, they face them ahead of the officer because the officer is responding after the fact and often too late. It would make it quite hard for a judge to rule in favor of a claim that LEA weaponry is somehow more necessary than a private citizen facing the same type of assault. At a minimum it should at least be equal.

    The authority in our country is supposed to flow from the people, not the other way around. Many are unaware that citizens possess the authority to make arrests just as our appointed and elected officials. Our arrest authority is upheld by the Constitution. So how can it be, when vested the same authority as appointed officers, we are forced to be armed any less? That would be an effective argument as well, but for some reason I’ve never seen it used by any attorney.

    1. Don’t know who G-Man is but he is right-on!
      If the get their foot in the door
      and set a precedent it will be twice as hard to change it.
      I suppose the best way to protect ourselves from this Socialist type Government is at the polls.
      I will be doing some type of volunteering during primary/general elections. I’m handicapped but there are still things I can do
      It’s time we take our Country back!

    2. Perhaps the ultimate agenda is so that the citizens can be disarmed, paving the way to the type of government that the 2nd Amendment is protecting us against.

      If anyone doesn’t believe that it can go down that way, just read about the history of Czechoslovakia.

  23. It’s not just happening in Colorado. It’s happening all over and the only way to stop it is to get to the polls and vote these idiots out of office. We share your pain in California too because once these laws are passed it’s twice as hard to get them repealed.

    1. I agree with G-Man completely. To me, they’re not objecting to the laws fully. The 2nd Amendment in the Bill of Rights of the U.S. Constitution was not put in place merely for personal protection, but more so to enable The People themselves to have a response to lawlessness, and to have an active recourse if their government were to become oppressive. Folks tend to forget that fact. A ‘well-regulated militia’ was not a permanent military force, but local groups of able men who regularly trained in the use of firearms and were available to convene at a moment’s notice when needed. Their personal weapons were essential in their patriotic duty in the defense of their community, county or state, whatever a particular instance demanded. It has nothing to do with a standing military force. The People, individually, in order to adhere to the law of the 2nd Amendment, must be legally and literally capable of possessing and bearing arms equal to that of any law enforcement agency in this nation. They must be equally armed. That helps to keep the governmental agencies and officials in check and in fear of The People, of whom the government is created and operating in the first place. At least, that is how it was originally designed to operate. Over the many decades personal freedoms have slowly been eroded, one law at a time. If we allow the 2nd Amendment to be rescinded, or diluted to where it is inaffectual, then we can kiss the rest of our rights goodbye, because then only the government will have weapons, to wield in tyranny, cruelty and corruption; to do as they will, to whomever they will. Our right to keep and bear arms is our birthright guarantee to enable us to overthrow a government run amuck, passing laws they themselves will not follow, and oppressing the very people they are assigned and sworn to serve.

    2. Perhaps it is long past time that we first realize, for starters, there IS the 2nd Amendment in the Bill of Rights to the U.S. Constitution…PERIOD. Politics and the associated cronies will always exist. Nullification is the best course of action. THINK! THINK! THINK! We need to stop being in a reactionary mode..

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