Colorado sheriffs plan lawsuit challenging state gun control laws

[Hummer]

A constitutional perspective on high-capacity magazines


By Dan Rubinstein Guest Columnist

Grand Junction Daily Sentinel
Sunday, June 30, 2013


The ban on high-capacity gun magazines, adopted by the Colorado Legislature this year and signed into law by the governor, faces some serious constitutional challenges.

Only time will tell if the nine minds whose opinion matters most — the justices of the U.S. Supreme Court — will agree with me, but from my seat it seems pretty clear the ban on high-capacity magazines is not “actually necessary” to the problem in need of solving and should be struck down.

It takes some background on the court and the Constitution to explain how I arrived at that conclusion.
In District of Columbia v. Heller, the Supreme Court found that the individual right to bear arms existed through the Second Amendment, but the court declined to adopt a standard to apply to determine when legislation that restricts that amendment violates the Constitution.

There are different levels of scrutiny the court uses to test a law’s constitutionality. The highest level is known as strict scrutiny. Under this standard, the government entity must demonstrate that the law or policy in question is necessary to achieve a compelling state interest. It must also show that it’s narrowly tailored to achieve the intended goal.

The majority in the Heller decision expressly rejected the lowest level of scrutiny. But the justices failed to decide whether the rights under the Second Amendment could be limited only when satisfying strict scrutiny or a lesser standard.

As enticing as it is to gun owners, I will concede that adopting strict scrutiny would create a litigation nightmare involving re-addressing every version of weapons restrictions (switchblades, blackjacks, sawed-off shotguns, possession in airports, courthouses and, well ... you get the point). That said, it may well be the right thing to do.

We limit constitutional rights to free speech in a variety of ways. Time, place and manner restrictions are acceptable under lesser scrutiny standards if they are content-neutral, are designed to serve a substantial governmental interest and do not unreasonably limit other means of communication. For example, we do things such as requiring permits to march down Main Street in protest.

However, if the government is going to regulate the content of the speech, it is subject to strict scrutiny. This is a very difficult burden for the government to overcome and restrictions usually fail. In the affirmative action case out of Texas last week, the court said that “the reviewing court must “ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.” That’s right, it said no workable alternatives can exist that produce the same result.
Turning now to Colorado’s recent gun legislation, the court will have to decide if the ban on magazines that exceed 15 rounds fails the applicable test.

Given that the Supreme Court has not decided whether to apply strict scrutiny, this case may pave the way for such a decision that affects both our state and future federal legislation. In the interim, it will be up to the seven justices on the Colorado Supreme Court to give their best guess as to the direction we are headed on the Second Amendment.

A few cases are telling in that regard. First, if the U.S. Supreme Court ultimately adopts the strict scrutiny test, we are almost certain to place 30-round magazines happily back in the hands of our citizens, based on other cases.

In Brown v. Entertainment Merchants Association, the California Legislature sought to ban violent video games. The ban was struck down when the court stated that California failed to do what they were required because “[t]he State must specifically identify an ‘actual problem’ in need of solving, and the curtailment of free speech must be actually necessary to the solution.” The court rejected California’s assertion that it should be able to “make a predictive judgment that such a link exists.”

This strikes me as remarkably similar to Colorado’s ban on magazines larger than 15 rounds. There has been no identified connection between the ban on the magazines and a decrease in violence or deaths. The Legislature seemed to be making a predictive judgment that this would solve the problem.

Even if the Supreme Court ultimately adopts the lesser scrutiny standard, intermediate scrutiny, for the Second Amendment, the law “must serve an important governmental objective, and the means employed must be substantially related to the achievement of those objectives.”

I listened to much of legislative debate on the bill to ban high-capacity magazines, and it was clear that the testimony was devoid of any relationship between the legislation enacted and the objective sought to be achieved.

That makes it highly unlikely, to my mind, that the law will be upheld.


Dan Rubinstein is chief deputy disrict attorney for the 21st Judicial District, encompassing Mesa County.

[Hummer]

Hickenlooper continues to show 
his disdain for rural Coloradans

By Rep. Ray Scott Guest Columnist

Grand Junction Daily Sentinel
Sunday, June 23, 2013



It is no secret that I have not harbored a tremendous amount of faith in Gov. John Hickenlooper over the years. But I had chosen to believe that he had come a long way from his infamous remarks in 2010 about rural Coloradans displaying “backward thinking,” that he really did understand, to some extent at least, the culture, heritage and economy of Colorado beyond the Denver city limits.


Sadly, this past legislative session has shown that this particular leopard hasn’t changed his spots. The governor has proved, over and over again, his callous disregard for the concerns of rural Coloradans.


The anti-gun bills, which the governor pushed through the Legislature and signed without a moment’s hesitation, were only part of a directed assault on our rural lifestyle, traditions and rights. And for what? Not a single one would have done anything to prevent either of the tragedies Democrats used as an excuse to push a long-restrained gun-control agenda.
Evidently we have a governor who cares more about the thoughts and opinions of New York City Mayor Michael Bloomberg than he does about the citizens of his own state.


He didn’t stop there, of course.


Hickenlooper had an opportunity to protect rural Coloradans from the devastating economic effects of arbitrary and politically motivated mandates being placed on electrical generation. Instead, he again displayed the contempt he has for “backward thinking” rural Americans and signed into law Senate Bill 252, which imposes an unrealistic, unworkable and unnecessary mandate on rural electric associations to get 20 percent of their electricity from so-called “renewable” sources by 2020.


The governor knows it is not feasible for our rural electric cooperatives to meet this unfunded mandate in such a short period of time. He knows that 21st century coal generation is clean and supports the economic backbone of thousands of rural western Coloradans. He knows that coal, natural gas and nuclear power can generate electricity cleanly, more reliably and much more inexpensively than solar and wind power. And yet, with the stroke of a pen, he disregarded all of this and made a conscious decision to throw rural Colorado under the bus for politically calculated reasons.


Hickenlooper has done some good work in generally supporting responsible oil and gas development. He was a geologist, after all, and for him to oppose hydraulic fracturing would be like a cardiologist opposing bypass surgery or low-cholesterol diets. But what is becoming clear is that, in order to placate the extremists whose votes he depends on, he will willingly sell out rural Colorado by supporting ridiculous, expensive and devastating measures like SB252.


His indifference to the hinterlands of Colorado is also shown with his increasing unwillingness to stand up and protect the rural parts of the state from overbearing federal intervention. Western Colorado’s economy has been struggling ever since it received the vicious triple punch of the previous governor’s overly restrictive oil and gas regulations being inflicted precisely when natural gas prices fell and the Great Recession took hold in Colorado.


The Western Slope has not recovered from the devastating job losses, and when an opportunity arose to bring some of those jobs and some economic hope back to this hard-hit region, the governor chose to side with U.S. Sen. Michael Bennet and the well-financed environmental lobby against the people of western Colorado by opposing the development of natural gas resources in the Thompson Divide.


Additionally, he has been deafeningly silent on the Roan Plateau issue, despite what could be devastating financial repercussions in the event that oil and gas leases in that area are withdrawn due to BLM over-reaction to a court decision.
Hickenlooper has displayed a clear record of contempt for the people of his state who live and work outside the major urban centers. And, if the best he can do is to throw a bone in the form of an expensive school-finance reform bill, that just shows he still does not get it. Rural Coloradans don’t want leveling, in the form of government largesse. They want opportunity.


Most of all, they want a governor who will listen to them, not dismiss them as “backward” and place the wishes of Michael Bloomberg before theirs.


State Rep. Ray Scott is a Republican from Grand Junction.

[asmo]

A constitutional perspective on high-capacity magazines
Dan Rubinstein is chief deputy disrict attorney for the 21st Judicial District, encompassing Mesa County.

This guy fails to understand that all the courts have upheld magazine limits - and have specifically stated that intermediate, let alone strict, scrutiny doesnt even apply.

[Bitter Clinger]

I don't see this going anywhere guys. Liberal judge most likely. However if these laws stand I see NO REASON why a law can't be introduced and passed to pay $10 to vote.

[USAFGopherMike]

Would it be illegal to load up Chickenpooper's and all his minion's mailboxes with GTFO of CO requests/demands?

[Jeffrey Lebowski]

This guy fails to understand that all the courts have upheld magazine limits - and have specifically stated that intermediate, let alone strict, scrutiny doesnt even apply.

Yep, that's my biggest fear as well. My only hope with this is just how poorly it was written having nothing to do with the limits and everything to do with the transfers, the dating, the grandfathering, the "readily convertible," the "continuous possession," the enforcement problems, etc, etc, etc.

[Uberjager]

Any updates on this?

[zulu01]

Received an email from RMGO today stating they are filing a lawsuit against the 2 gun laws. Are they not involved with the Sheriff's lawsuit? Did Dudley not get invited to the big dance so he's starting his own? Seems counterproductive on RMGO's part.

[davsel]

Seems counterproductive on RMGO's part.

That is RMGO's MO

[lowbeyond]

yea.. um why wouldn't they just give $ to the current suit..