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/Court...4CA2178-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

[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.

[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.

[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/nationworl...calls-nra-soft

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

http://blogs.denverpost.com/eletters...#disqus_thread