Court of Appeals reverses dismissal of RMGO's lawsuit over magazine ban

[JamesB]

In a decision issued today, a panel of the Colorado Court of Appeals reversed the trial court's dismissal of RMGO's lawsuit over the constitutionality of the 2013 magazine ban. They instead directed that the trial court have a trial over the issue. The lawsuit was filed making only claims under the Colorado Constitution's right to keep and bear arms, found at Article 2 Section 13 of the Colorado Constitution. The court agreed that if a trial found RMGO's allegations about the scope of the ban and its effect were correct, that the law could be unconstitutional. However, since the Denver District Court Judge decided that the opposite was true - i.e. that a near total ban on firearms by banning their magazines was still constitutional under Article 2 Section 13, Judge Madden gave the State summary judgment without a trial. The Court of Appeals decided he was wrong. The Court of Appeals did decide that the private sale ban was not unconstitutional, and it sustained the dismissal of claims as to that law, also enacted in the 2013 Bloomberg funded gun control frenzy.

At this point either RMGO or the State could ask the Colorado Supreme Court to review the issues in the case. Otherwise the case will be sent back to Denver District Court for a trial. Further, the Court of Appeals was troubled with just what standard of review is applicable to the right to keep and bear arms under the Colorado Constitution. This Court specifically rejected a standard endorsed by a different Court of Appeals panel in a prior case concerning the Denver assault weapon ban. The Colorado Supreme Court could agree to revisit its decision in Robertson v Denver, which ripped all of the teeth out of the right to keep and bear arms under the Colorado Constitution, and resolve this conflict between different panels of the Court of Appeals.

Incidentally, the Colorado Court of Appeals also rejected the idea that the extra-legal modifications that the Attorney General's office created through their "Technical Guidance" letters to the magazine ban were valid or controlling interpretations of the law. Those fictions were also endorsed in the Colorado Federal District Court's decision in the Federal lawsuit over the magazine ban, to try to keep it constitutional. However they were also rejected by the 10th Circuit Court of Appeals in reversing the trial court decision. As written the ban affects virtually all magazines, regardless of their capacity, since almost any can be expanded by the use of an extension. Further the ban as written bars repair parts and parts kits. It was clearly written to ban all magazine fed firearms (whether semi-auto or not) by banning magazines. The dubious Technical Guidance letters were an effort by John Suthers and David Kopel (attorney for the Plaintiffs in the Federal lawsuit) to make the laws less all encompassing, and thus to keep them from being struck down. RMGO wants the laws to be judged on what they say and what the Legislature passed, not a backroom deal made to try to salvage the laws.

https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2016/14CA2178-PD.pdf

[Bmac]

Thank you for the report.

[XJ]

Sounds like a glimmer of hope, too bad that RMGO gets the headline.

[Irving]

As always, thank you for the report.

[buffalobo]

You suggest that Dave Kopel would not support striking down the mag ban, got any info or statements by Kopel to support that?

sent from my electronic ball and chain

[spqrzilla]

Misrepresenting Dave Kopel's actions again is why I'm not a fan of RMGO.

[TFOGGER]

Misrepresenting Dave Kopel's actions again is why I'm not a fan of RMGO.

Not to mention their penchant for taking credit for things that they had absolutely nothing to do with(recalls), and actively opposed until the efforts of others were successful.

[Great-Kazoo]

Not to mention their penchant for taking credit for things that they had absolutely nothing to do with(recalls), and actively opposed until the efforts of others were successful.


Like this crap? I replied as i "believe" 1 or 2 more did.

http://www.denverpost.com/nationworld/ci_29691599/windsor-based-gun-rights-group-calls-nra-soft

Usually there's 1 or 2 more forum members joining in. Like with this on

http://blogs.denverpost.com/eletters/2016/03/27/guns-are-more-deadly-than-terrorism/41346/#disqus_thread

[sniper7]

Hope members here, myself included get to be on the jury if there is one!

[Aloha_Shooter]

Wow, the ignorance in the comments at the Denver Post is ... unsurprising and still depressing. Some of the respondents have drunk so much Kool-Aid, they could give Timothy Leary lessons (if he weren't worm food already).

[68Charger]

Wow, the ignorance in the comments at the Denver Post is ... unsurprising and still depressing. Some of the respondents have drunk so much Kool-Aid, they could give Timothy Leary lessons (if he weren't worm food already).

it's so pointless to argue in venues like that... "Arguing with an internet troll is like wrestling in the mud with a pig... after a while, you realize he's enjoying it"

[Skip]

Wow, the ignorance in the comments at the Denver Post is ... unsurprising and still depressing. Some of the respondents have drunk so much Kool-Aid, they could give Timothy Leary lessons (if he weren't worm food already).

The Democrat Post is a selective sampling because you're dealing with a lot of Libs and Libs who either don't work and have all day to post there or "work."

I worked "with" a Lib once who spent all day in his cube playing WoW and spamming comments with hard-code Leftist drivel. I think he got promoted to management now!

[OneGuy67]

Rucker61 is making some really good, intelligent, articulated arguments there! Good for him!

[Rucker61]

Rucker61 is making some really good, intelligent, articulated arguments there! Good for him!

Thanks, but see 68charger's comment above. :(

[68Charger]

Thanks, but see 68charger's comment above. :(

If you enjoy it, by all means have at it... it is somewhat entertaining... I personally think it's a waste of time- unless you're just looking to hone debating skills... you'll never convince them...

[Rucker61]

If you enjoy it, by all means have at it... it is somewhat entertaining... I personally think it's a waste of time- unless you're just looking to hone debating skills... you'll never convince them...

I have learned an awful lot researching my positions.

[Great-Kazoo]

If you enjoy it, by all means have at it... it is somewhat entertaining... I personally think it's a waste of time- unless you're just looking to hone debating skills... you'll never convince them...


I point out facts. A major stumbling block of the left. Especially when it's from articles other than Fox News, M.Levine, rush or Beck. Their heads explode and fall back on racist, homophobic, misogynistic name calling .

OR they report your comment as "Hate Filled". Typical fuktards.

[Aloha_Shooter]

I'll sometimes engage in the debate just for the sheer fun of watching them flounder when presented with facts. My godmother is your typical Denver liberal -- thinks she's moderate and the rest of us are hard core conservative. She also makes much of the fact that she has Hawaiian ancestry and majored in History so one Christmas when she was spouting off about the NRA and the need for gun control, I casually mentioned that as a devoted student of history, she surely realized gun control came to Hawaii when the haoles overthrew Queen Liliuokalani and wanted to ensure the Hawaiians couldn't take the government back. She got real quiet when she realized it was true and she didn't have a counter argument.

[68Charger]

I wonder how many people are "liberals" just because of the bandwagon effect... since it's primarily urban areas that are heavily liberal, would seem that it could be a majority.

[JamesB]

You suggest that Dave Kopel would not support striking down the mag ban, got any info or statements by Kopel to support that?

sent from my electronic ball and chain

I didn't mean that. What he did, and he is not shy about it, was work with the Attorney General's Office to issue bogus "guidance" about what the law covered and what it didn't. This was in his role as attorney for some of the Plaintiffs in the Colorado Outfitters v Hickenlooper case. This guidance substantially weakened the arguments about the unreasonableness of the law, and that unreasonableness is key to getting it struck down. He also stipulated that 15 round or less compliant magazines are available for most firearms. I both disagree with that as a fact, and it ignores the argument that the magazine law was a backdoor attack on firearms, by turning magazine fed firearms into single shot (at best) firearms. Fortunately, I think, the District Court decision, which relied greatly on that bogus and unenforcable guidance in upholding the constitutionality of the law, was thrown out by the 10th Circuit Court of Appeals. A Federal attack on the law can start over.

This isn't a secret, he discussed it in his testimony before the House State Veterans and Military Affairs committee earlier this year, when that committee was considering the mag ban repeal in the House. He was there testifying against the law (in support of the bill before the committee) and also to disagree with the rantings of ProgressNow's Alan Franklin, who got up to announce how great the law was, and how it didn't really ban any guns at all. Dave Kopel said, basically, that no guns were banned because I worked out guidance with the AG to neuter the worst aspects of the law.

The problem with working with the AG to make the law more mild (and in my opinion, in an unenforceable way, since the AG does not prosecute crimes under the magazine ban) is that it makes it harder to repeal the thing altogether. It takes a great deal of political muscle and backing to repeal this sort of law. The idea that you can compromise with your political enemies to dilute bad gun laws and then get rid of them later is not a winning strategy. The more dilute the harder they are to get rid of altogether. And as the Colorado Outfitters case shows, you can compromise to try to get some political gain (have the AG neuter the law to a certain extent) only to have that taken away, and your left having offered to accept a lesser level of restriction, without even getting the benefit of that.

It's not that Dave Kopel is anti-gun. It's that he is willing to compromise what should be non-negotiable principles for illusory gain. In battling gun control, I don't think that's a winning strategy.

[JamesB]

I'll have to review the opinion when I get a chance and provide another take (from someone litigating there as well). Haven't read it, haven't watched the videos or analyzed all the BS flying. I can tell you flat out we do not want anything being reviewed by the Co Supreme Court. Look at the makeup sometime. Only certain questions would be redirected to the CO Supreme Court anyway. I have not seen Independence Institute take any action other than to prosecute this suit.

Also, I didn't see Dudley on this action last time I checked. Dudley was on the Post Office case which imho was a very stupid move. Trying to challenge every regulation is not beneficial when you understand how precedence works. Courts carefully craft it to support whatever good-fuzzy feeling they want at the given time. They are never going to have a good-fuzzy feeling about having random strangers with guns in their courtroom, and they can see a logical connection between precedence regarding a post-office and a courtroom. So... they carefully craft an opinion to do what they want, and that precedence gets perverted to deny clearer, more important issues. RMGO needs to pick and choose its positions to have the best possibility of winning every case. It also shouldn't be stealing credit and shit talking perhaps more altruistic organizations.

RMGO was the lead plaintiff in the magazine ban lawsuit mentioned above. RMGO paid the attorney fees of the attorney, Barry Arrington. The caption of the suit is RMGO v. Hickenlooper. The suit was brought for a specific purpose, to try to get life back into the State Constitutional right to keep and bear arms, which was eviscerated in the Robertson v. Denver decision about 20 years ago.

The Post Office lawsuit was first brought in 2010. It was instigated and funded by RMGO, although the attorneys at Mountain States Legal Foundation, who did the work greatly helped out by not charging anything close to full price for the work. Fresh after the Heller and McDonald Supreme Court decisions it looked like the courts might recognize a right to bear arms for self protection. The government interest in keeping guns out of their public, unsecured buildings and parking lots was very attenuated. Unfortunately the lower courts have basically ignored the Heller and McDonald decisions, and the Supreme Court has tolerated that. I don't think that was foreseeable in 2010. In terms of Postal carry, the upshot of the lawsuit is that the rules in place in 2010 continue to be in place. They can be overturned by a new administration, or by Congress.

[ChunkyMonkey]

I have learned an awful lot researching my positions.

Your avatar both here and there just kills it! [ROFL1]

[asmo]

The dubious Technical Guidance letters were an effort by John Suthers and David Kopel (attorney for the Plaintiffs in the Federal lawsuit) to make the laws less all encompassing, and thus to keep them from being struck down. RMGO wants the laws to be judged on what they say and what the Legislature passed, not a backroom deal made to try to salvage the laws.

Are you an effing idiot?

Sorry, but coming in here and calling David Kopel, one of the most staunch defenders of the 2nd amendment ever, out saying he is one of the sources of the problem is nothing less that total and complete retardation or a complete lack of understanding that shows idiocy.

[asmo]

It's not that Dave Kopel is anti-gun. It's that he is willing to compromise what should be non-negotiable principles for illusory gain. In battling gun control, I don't think that's a winning strategy.

Or he played a VERY smart move, knowing full well (as did every other major 2A attorney out there) that guidance given by the DA is *NON BINDING*, and therefore showed prima facie that the law was flawed. Dave flat out said that was he whole purpose going in.

God I effing hate Dudley Brown.

[Zundfolge]

The simple truth is that the recreational MJ law worked exactly as planned and in the last year we've had more than a hundred thousand people move to this state and I guarantee you the vast majority of them are Democrats here for the weed.

This state is bluer than when the anti-gun laws passed and the chances of the R's taking back the house and pushing repeals dwindles with each passing new Californian, New Yorker and Illinoisan that becomes a Coloradoan. For that matter I wouldn't be surprised if the D's take the Senate this November (along with the socialized medicine ballot initiative getting wedged into the state constitution).

Taking a bit of the sting out of these bad laws is very likely the best we will ever get and Dudley's "All or Nothing" attitude will likely leave us with nothing. And what makes this stick in my craw even worse is that the gun laws are basically Dudley's fault because he went out of his way to prevent a pro-Gun Republican Senate candidate from winning just because the candidate refused to kiss Dudley's ring. Thus costing the R's the Senate and putting John Effin' Morse in charge of the show up there and that JBT wannabe has a hard on for gun control that rivals Bloomberg's.

I don't trust Dudley or his RMGO because I think he's only in it to line his pockets and if the gun laws go away he loses a revenue stream. He'd rather have nothing.

[brutal]

More proof Dudley is a POS.

(biased rags) but he's taking (or given) credit here for recall efforts, etc.

http://bigmedia.org/2015/10/01/with-collapse-of-rand-paul-dudley-brown-may-be-cash-cow-for-tim-neville/
http://www.huffingtonpost.com/jason-salzman/gun-extremists-may-propel_b_8228974.html (http://bigmedia.org/2015/10/01/with-collapse-of-rand-paul-dudley-brown-may-be-cash-cow-for-tim-neville/)

"Former Rocky Mountain News Media Critic Jason Salzman is the primary tweeter for BigMedia.org, which aims to hold journalists to their professional standards."

Kind of ironic that this clown spews untruths and drivel in his posts.


Also, Dudley and Tim Neville top my spam e-mail. Guess we know who Dudley sold our names to right? i mean, I'm sure he gets to write off the cost of the lists going to Neville in some form of campaign contribution scheme right?

I'm all for keeping the GOP in power, but what on earth possessed Neville to get in bed with Dudley Brown?


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