Gun Control Laws Upheld By Judge In Colorado--The First Niche In The Armor Of The Second Amendment?

Federal Judge Upholds Colorado Gun Control Laws

June 27, 2014 by Ben Bullard 

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A U.S. District Court judge ruled on Thursday that a trio of gun control laws passed last year by the Colorado Legislature does not infringe on 2^nd Amendment rights – although the way she phrased her ruling makes it sound as though she’s anticipating a bitter public reaction.

Marcia Krieger, Chief Judge of the U.S. District Court for the District of Colorado, predicated the basis for her ruling on precedent laid down by other courts – most notably the U.S. Supreme Court’s 2008 ruling in District of Columbia v. Heller, which relied on an innovative interpretation of the “well-regulated militia” qualifier contained in the 2^nd Amendment.

Having established the scope (or limits) of her interpretive context, Krieger went on to rule that the group of plaintiffs who had sued to have the laws overturned had not demonstrated that those laws threatened Coloradans’ ability to use firearms for self defense.

Krieger’s tone was apologetic. “Judicial review of laws for constitutional compliance focuses on only a small sliver of the issues that the legislature considers. A court does not act as a super-legislature to determine the wisdom or workability of legislation. Instead, it determines only whether legislation is constitutionally permissible. A law may be constitutional, but nevertheless foolish, ineffective, or cumbersome to enforce,” she wrote in her decision.

She later offered, “Constitutionality is a binary determination: either a law is constitutional, or it is not. This Court will not express a qualitative opinion as to whether a law is “good” or “bad,” “wise” or “unwise,” “sound policy” or a “hastily-considered overreaction.” Similarly, this Court will not assess what alternatives the legislature could have chosen, nor determine whether the enacted laws were the best alternative. Such decisions belong to the people acting through their legislature. Put another way, in determining whether a law is constitutional, this decision does not determine whether either law is “good,” only whether it is constitutionally permissible.”

On the question of whether the laws collectively represent a 2^nd Amendment infringement, Krieger wrote:

Many Circuit Courts of Appeal, including the Tenth Circuit, have adopted a two-step approach. See United States v. Reese, 627 F.3d 792 (10th Cir. 2010); United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010); Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011); United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013); Heller v. District of Columbia (“Heller II”), 670 F.3d 1244 (D.C. Cir. 2011); United States v. Chester, 628 F.3d 673 (4th Cir. 2010).

In the two-step approach, a court must make a threshold determination of whether the challenged law burdens conduct falling within the Second Amendment’s protection. As part of this determination, the Court may consider whether the challenged law impacts firearms or firearm use, whether the affected firearms are currently in “common use,” whether the affected firearms are used for self-defense inside or outside of the home, and whether the restriction is akin to restrictions that were historically imposed and customarily accepted.

If the challenged law does not burden a right or conduct protected by the Second Amendment, then the inquiry is over.

… Although Heller sometimes uses shorthand phrases such as “a natural right of self-defense,” 554 U.S. at 612, or the “inherent right of self- defense,” 554 U.S. at 612, it is clear that Heller does not extend the boundaries of the Second Amendment to guarantee “self-defense” as a right in and of itself. Nothing in Heller can be read to guarantee an individual right to possess whatever firearm he or she subjectively perceives to be necessary or useful for self-defense, nor any firearm for a purpose other than self-defense. To the contrary, the Supreme Court expressly stated that the rights embodied by the Second Amendment have not historically been understood to be “a right to keep and carry any weapon whatsoever.”

Democratic Colorado Governor John Hickenlooper signed the three gun control bills, passed by the Democratic-controlled Legislature, into law in March of 2013. The laws expanded universal background checks for gun transactions, including private ones; instituted a background check fee; and restricted legal magazine capacity to 15 rounds, mandating that all magazines manufactured in the State after July 2013 bear unique ID markings.

The laws generated instant controversy, ultimately leading to a voter recall of two State Senators who supported the measures, as well as the pre-emptive resignation of a third.