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

Categories: News

justin.smith.205x205.jpg
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.

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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."

30.round.magazine.jpg
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?

Continue for more about the complaint against Colorado gun-control laws, including a video and complete documents.


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134 comments
mindsquint
mindsquint

So many people here out for these guys' jobs for this stance. Let's be clear. They are NOT violating or hindering the law. They are suing--asking the courts to review and decide if the law holds up to further scrutiny. Yes, they are tasked with upholding the law, but if they disagree with the law do they not have the same right to challenge it as anyone else? Does their title and office make them any less citizens?

DonkeyHotay
DonkeyHotay topcommenter

... What part of "Shall NOT Be Infringed" don't they comprehend ???

1911flash
1911flash

Well when the courts get done throwing everything out the gun banners will just have to live with the fact the United States is the best country in the world and we can thank the founding fathers for the Constitution and the 2nd Amendment that made America what it is to day! Long live the Republic!

Chelly Serna
Chelly Serna

if you think gun rights are the ability for everyone to have access to a gun more easily then cold medication, then you need some help, good sir.

Chelly Serna
Chelly Serna

I wish there was a "share" button for this comment.

1911flash
1911flash

They have not addressed the criminal in making up the laws. Why not give the criminal 20 years for a crime with the use of a firearm? None of the laws put forth would have stopped any of the current mass shootings. The Gun Law people don't know anything and all they can do is lie and talk false numbers! We already have a background system in place but out of 67.000 denials they only prosecuted 44 because they don't have time?

Green_eyes
Green_eyes

The truth is if someone who shouldnt have a gun wants a gun bad enough they're going to get one with or without these gun laws, that's why they're criminals they don't follow the rules and never will..... And backround checks don't keep guns from the mentally ill either, most mental cases are undiagnosed..... How do these laws make anyone feel safer?? Oh wait it's the magazine capasity only 15 rounds.... Yea much safer.....

Ryk McDorman
Ryk McDorman

@JohnS - when you say "... the very people tasked with promoting our safety deem violates our rights..." you do realize, of course, that sheriffs don't get to "deem", right? That's the job of the courts. Sheriffs enforce the law, courts interpret the law. As is abundantly clear in this case, the sheriffs don't have enough knowledge regarding constitutional law.

DonkeyHotay
DonkeyHotay topcommenter

@1911flash "Why not give the criminal 20 years for a crime with the use of a firearm?"

That include HUNTING crimes like poaching, or hunting without a current license, or trespassing without permission and killing an animal?

mindsquint
mindsquint

@Green_eyes You are absolutely right. A better use of our time would be promoting changes in our mental health system to provide more readily accessible services to those who need them but may not be able to afford them. Too often, we don't know somebody's off their nut until they've shot someone anyway--or a neighbor puts down his McDonalds and finds a bunch of women in their basement (I know--not relevant to gun control, but to mental health).

DonkeyHotay
DonkeyHotay topcommenter

@Green_eyes ... so you support eliminating all background checks, and allowing unlimited civilian firepower ... since those laws "don't work", eh?


mindsquint
mindsquint

@Ryk McDorman What's not to understand? The article doesn't say they refuse to uphold the law, although as @freedoms1st points out, they may very well and very reasonable feel conflicted or even compelled not to. What they are doing is suing to have the courts interpret the law, just as you say. Is it possible you don't understand your own statement?

freedoms1st
freedoms1st

@Ryk McDorman Actually, the Sheriffs are obligated by their oath of office to 
"support the Constitution of the United States and of the State of Colorado" - 
http://www.sos.state.co.us/pubs/business/PDFFillable/OATH.pdf
so, if anything, they are duty-bound to oppose unconstitutional legislation.

“An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation as inoperative as though it had never been passed.”  Norton v. Shelby County – 118 U.S. 425 (1886)

Perhaps YOU are the one who lacks "
enough knowledge regarding constitutional law."

DonkeyHotay
DonkeyHotay topcommenter

@Ryk McDorman ... being an Elected Office ... any fool can become Sheriff ...

betweenthelines
betweenthelines

@DonkeyHotay @mindsquint <<<====== So stupid he believes that the only way a law can be un-constitutional is for the very same government that is breaking the law to declare it as so....You are a special kind of stupid, aren't you?

DonkeyHotay
DonkeyHotay topcommenter

@mindsquint "“An unconstitutional act is not ..."

... something that a low-rent under-educated elected sheriff gets to arbitrarily decide on his own -- it's a determination to be made solely by the judicial branch.

Or have you abandoned the tripartite separation of powers established by the constitution in your zeal to ensure the proliferation of firepower among civilians?

mindsquint
mindsquint

 @DonkeyHotay While I am a fan of argument, as you clearly are as well, I prefer good argument. Thus I will amend @1911flash's previous statement with the obviously implied term "violent" in regard to harshly punishable gun crime. Similarly, in an attempt to derail any future triviality, I will further amend the term to "toward humans."

I second the basic premise. It is always better to punish a criminal than to preemptively treat the masses as criminals in an attempt to dissuade the few who are or will be. The rare criminal who might be dissuaded by such laws but would be otherwise motivated enough to perpetuate the specific brand of violence everyone tries to justify these laws by will just find another of the laundry list of historically tried and true means of murder and mayhem. This type of law will have no effect on anyone but responsible owners.


Green_eyes
Green_eyes

I never said that...... There were already backround checks in place before this......and no I doubt the new laws will make a difference.....

mindsquint
mindsquint

@DonkeyHotay Damn it, Locutus! I already established I disagree with the basic premise. I admit no such thing. Now if you will excuse me, my wife is calling me to bed and if there is one thing I enjoy more than a dead horse it's a... live wife? I was going for dirty, but there was no saving that one from the creepy bin. Any way, it's been surreal. I'll see you around.

DonkeyHotay
DonkeyHotay topcommenter

@mindsquint " Damn. As much as I hate myself for coming back, ..."

Get used to it ... few, if any, have the willpower to stay away from Donkey Therapy.

Some have even formed  a support group to deal with their obsession.

Resistance Is Futile, You Will Be Assimilated.

DonkeyHotay
DonkeyHotay topcommenter

@mindsquint ... so you admit that the Sheriff is out of line by arbitrarily refusing to enforce existing law ... until such time as a proper injunction is granted, or the law is overturned BY THE JUDICIARY.

But you already knew that, so why did you beat your own horse to death?

mindsquint
mindsquint

@DonkeyHotay Damn. As much as I hate myself for coming back, that Walken clip makes it all alright. See you around.

mindsquint
mindsquint

@DonkeyHotay If I wasn't keeping up with you, I wouldn't be worth your time. Or are you truly that sad? In any case, you have proven your willingness to "win" at any cost and my time is at least somewhat more valuable than this dead horse warrants. Consider my departure whatever sad victory you will. I am certain I will see you trashing up the comments of some future post with your particular brand of closed-minded birth defect related insults. Until then.

DonkeyHotay
DonkeyHotay topcommenter

@mindsquint "he is torn between ..."

... nothing at all. UNTIL AFTER the Judiciary rules on the matter, or an injunction is granted, it IS the LAW of the land, and his duty and obligation as PAID LAW ENFORCEMENT is to do just that, enFORCE it, without prejudice.

Or he can resign and let someone who is willing and able to enforce the laws -- and not rule on them -- take his place.

His is not to wonder why,
his is but to do or die.


ps: when you present an equivalent coherent argument, I'll let you know.

mindsquint
mindsquint

@DonkeyHotay So, why is he "low-rent" I wonder? Is it because his county is rural or because you just think law enforcement professionals are somehow all lower than you? Is it simply because he disagrees with you? Yeah, judging by your tone toward anyone who has done so, I'm guessing that is a big part of it. You know, if you go into arguments assuming equality, you may broaden your perception a bit.


mindsquint
mindsquint

@DonkeyHotay Ooh... see, that was better. No, of course not. Low-rent or not he is torn between the rule of two laws and forced to choose one or the other cannot reasonably be expected to comply to the one he finds harmful to the public he protects. You are right. His place is not to make or determine law. If this law were constitutional, he wouldn't have to. He didn't write the law, as he shouldn't have. He should not have to determine the law and thus is suing to have the courts do so for him. In the meantime, he cannot enforce it.

DonkeyHotay
DonkeyHotay topcommenter

@anschutz1413 ... those Federal Minimum Mandatory sentences STILL exist for crimes where a gun is used or even possessed and not used.

Street Gang members and other organized criminals became more circumspect with regards to getting caught carrying, but there is no indication their possession of firearms has decreased due to such laws.

And most hardened criminals aren't afraid of doing 5 years -- and wouldn't risk elevating that to 20+ years by shooting someone unnecessarily. 

Facing a 20+ year mandatory minimum for mere possession of the gun during their crime, they have little deterrence to not shoot / kill others to enable their escape.

Draconian sentences precipitate Draconian actions by the perps, since they have nothing to gain by surrendering peacefully.



DonkeyHotay
DonkeyHotay topcommenter

@mindsquint ... and properly NOTED IT with the [brackets] ...

If I was critiquing an error, it'd be noted with [sic]

hth.

mindsquint
mindsquint

@DonkeyHotay Oh... you literally rewrote what was said to get at your preferred meaning. Interesting. Do that much, do you?


DonkeyHotay
DonkeyHotay topcommenter

@mindsquint = reading comprehension fail

It wasn't a correction of your grammar, it was a re-phrasing of your assertion to properly attribute the sloppiness to the original, inarticulate poster 1911flash.


mindsquint
mindsquint

@DonkeyHotay @mindsquint Regarding your grammar correction: I know there were a lot of words, but it wasn't a hard sentence. "Your attempt... was sloppy." It didn't require an "and." Come to think of it, the assertion continues to fit. This most recent attempt was sloppy as well. I don't get the pot reference at all, but your alliteration is fitting. Might I play Cyrano for a moment and suggest that if you want to attack my grammar instead of my content, I have likely left you wide open. I have a habit for comma splices and run-on sentences. Though I use the former purposefully as they so nicely string together a complete thought; a stylistic choice, but arguably incorrect to be sure. When you tire of aiming at the issue again, I am sure I will continue to commit similar trivialities for you to fire upon.

mindsquint
mindsquint

@DonkeyHotay I keep getting an error when I try to reply to your mention of Sheriff Cook, so I'll try here: Well, there's one. Let's fire the lot! Yes, I knew he said that. I've established that I don't find his refusal a hindrance to the law as it upholds constitutional law. You argue that a criminal, reaching a point where he may be prosecuted harshly whatever he decides is logically freed of incentive to act outside his interest and yet you would begrudge a sheriff who, facing a dilemma wherein he must choose between two competing interests each with their own consequence, chooses to uphold the law he thinks best protects the people. In any case, I will reissue the quote earlier cited by freedoms1st: “An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation as inoperative as though it had never been passed.” Norton v. Shelby County – 118 U.S. 425 (1886) Thus it is prudent, should enforcement question the constitutionality of a law, to not uphold said law until the constitutionality can be properly assured. I cannot tell you how much I hate bringing up a certain European regime of days past (that the forum will not allow the name of) in arguments. It is such a cop out and so cliche (and just exactly the kind of thing I'm surprised hasn't yet happened on this board given all the other attacks and name calling--or was until the site literally wouldn't let me post their name), but it is finally a fair and appropriate scenario in which to bring them up. Such consideration of rule of constitutional law over legal whims virtually eliminates the "I was just following orders" defense and its employment helps hinder a new regime from enforcing its enforcement upon its enforcers. (There is a better way to say that, I am sure, but thesauruses are hard and stuff).

mindsquint
mindsquint

@DonkeyHotay Oh... I see what you did there. Similarly you will find trying to jam both bullets into the one barrel may not produce the desired result. Try loading logic too and see if you don't better hit your mark.

Puns are fun.

DonkeyHotay
DonkeyHotay topcommenter

@mindsquint ... Logic and Insults, like a double-barrel shotgun.

Booooooooo yaaaaaaaaaah!

mindsquint
mindsquint

@DonkeyHotay @mindsquint Perhaps you might think more on reason and less on baseless prejudice. Then you might be left with more than insults when your logic runs out.

DonkeyHotay
DonkeyHotay topcommenter

@mindsquint "a meaning he clearly did not intend [and] was sloppy"

You'll find many the inarticulate illiterate imbecile promoting both pistols and pot ... such is their demographic.

mindsquint
mindsquint

@DonkeyHotay Perhaps you are right. I just think your earlier attempt to muddy the water with a meaning he clearly did not intend was sloppy. You have shown you are better than that--this line of questioning included. I simply think punishing the criminal is more just than preemptively squeezing everyone. 

You do raise a good point about your version further motivating criminals. A reasonable reading would impose the harshest penalties for discharging a firearm, as that is what we ultimately want to prevent. Still, I will concede that such a law is potentially just as likely to have unintended consequences and be equally as worthless in the end as the one the sheriffs are fighting ...if we can agree to toss them both out.

DonkeyHotay
DonkeyHotay topcommenter

@mindsquint ... so is merely brandishing a gun "violent" if they don't actually pull the trigger?

The VAST VAST majority of crimes committed by ARMED criminals do NOT involve them firing their weapon, or even harming the victim. The gun is merely used to ensure compliance.

If draconian mandatory minimum 20+ year prison terms were implemented, would those criminals with a propensity toward "violent" armed robbery, etc. be MORE or less likely to actually fire their weapon and/or harm others to ensure their escape?

Be specific, and show your work.


DonkeyHotay
DonkeyHotay topcommenter

@mindsquint "trying to know exactly who or what you support with your money is a chore unto itself."

Such is the burden of a True Patriotic Citizen.

mindsquint
mindsquint

@DonkeyHotay True. Unfortunately, it is getting harder and harder to do even that. Companies swallow each other up at such a rate and diversify into so many product lines and subsidiaries that trying to know exactly who or what you support with your money is a chore unto itself. Add to that, successful lobbying by Monsanto, et al to hide their poisons' presence form being labelled so you can make an informed choice (see "aspartame in milk" for just one example) and our leadership's willingness to protect them from retribution of any kind should their products prove harmful. Then there are the armies of lawyers that may descend on you if your voice gathers enough influence to affect their bottom line and the power of your dollar to affect change is practically nil.

In many cases, people who just say "fuck 'em all" and try to just raise their own crops are beginning to see their cities raze their yards. Anymore business and government are so deeply entwined as to be the same damn thing.


DonkeyHotay
DonkeyHotay topcommenter

@mindsquint "our best bet is to vote with our dollars"

Always ... every single day,  instead of once every 2-4 years ... the only "votes" that actually have any effect, and they never go uncounted.




mindsquint
mindsquint

@DonkeyHotay To be fair, I don't know if we have any line of defense. If it comes to that, it will be utter slaughter and likely entirely one-sided. I still think, capitalism being what we have to work with, our best bet is to vote with our dollars--and our votes for that matter. Unfortunately, it will mean trying to educate people about their products and their government. It will mean convincing people of the obvious truth that with both parties out to screw them, they will have to start voting outside the parties. It will mean finding enough people willing to hear and think about something dissenting and inconvenient and not endorsed by their favorite corporately funded talking head--and then act on that knowledge 

On second thought, all out war might stand a better chance of success.

DonkeyHotay
DonkeyHotay topcommenter

@mindsquint ... armed cripples and crazies -- the last line of defense against "tyranny" !!


mindsquint
mindsquint

@DonkeyHotay It's a worthy question. In spite of the spirit of this forum, I'll answer with the most rational and honest thing I can think of: I'm not entirely sure. To that point, I would imagine it depends on who's defining mentally ill. Crying on the can while masturbating into an issue of Guns and Ammo--agreeably not a good choice for responsible gun ownership. Then again, there are the "paranoid whackadoos" that might get labelled as such and denied. I believe it was Woody Allen that said "it's only paranoia until you are right." 

I don't carry or care to carry myself, but when I see the many ways the government favors big business and banks and it's own power for that matter over the welfare of the electorate, I find it harder and harder to argue with someone who thinks he and his buddies should prepare to stand up for their liberty and safety in whatever way possible.

That's not to say I believe they stand a chance. Spend but a moment on any of the learning channels and you'll see the myriad means by which America can and will decimate her enemies. Exciting new developments (see: metal storm) mean we can unleash a wall of metal through virtually anything at virtually anything. Of course, it may yet seem unlikely these things may come home. These are designed for the battlefield. So were drones, and Bloomberg says their arrival in NYC is "inevitable." Think America would never turn metal storm on it's own? Maybe. I used to think the same about indefinite detention without trial. These fears may just make me a paranoid whackadoo.

So, I don't know. I have no intention of arming up and joining the militia--for one, I am an anti-GMO, anti-conservative, pro-environment, pro-occupy, semi-socialist, Christian hodgepodge of a whackadoo and not entirely sure I'd be welcome among them (or socialists, or occupy or really anybody, for that matter). For another, should it come to such an end as I truly hope it will not, I would fully expect to be wiped off the planet by a superior force who would know our every move before we contemplated it. In any case, back to your question. Though I don't particularly plan or desire to purchase a firearm, I would be wary the particular current and potential future distinctions of "mentally ill" that might disallow me or others to own a firearm should our distrust of the government mark us paranoid and thus just the right kind of mentally ill to not own a firearm.

I may be a nut, but I'm sure some would have said the same about the founders of this country. I may not like what we've become, but I am glad for our founders' guns and in so much as it may serve in some small way to dissuade our would be tyrants from complete takeover, I suppose I am equally glad for citizen's ownership now. It's a good enough reason to defend gun ownership.

That and bears, and shit.

DonkeyHotay
DonkeyHotay topcommenter

@Green_eyes ... so do you support background checks or not?

Did they not make a difference?


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