On Tuesday, the Boulder, Colorado city council unanimously passed an ordinance banning the possession and sale of of various firearms and accessories including so-called assault weapons. The brief for the ordinance cites several biased, partisan “studies” to attempt to justify the ordinance which likely violates Colorado’s preemption statute, not to mention state and federal constitutional protections. The ordinance casts a wide net, to say the least.
Legal pushback, in the form of a lawsuit filed by the Boulder Rifle and Pistol Club and Bison Tactical, followed shortly after passage, as opponents to the measure had promised.
Bison Tactical, a Boulder-based maker and seller of shooting gear, the rifle club and (local radio and TV personality Jon) Caldara, who lives in Boulder, would continue possessing and selling assault weapons if not for the unanimous decision Tuesday to ban the weapons inside city limits.
“The right of self-defense is an unalienable, natural and fundamental right,” says the lawsuit filed Wednesday by Mountain States Legal Foundation attorneys Cody Wisniewski and Sean Smith. “The Second Amendment of the U.S. Constitution memorializes the right of self-defense.”
The Mountain States Legal Foundation sums up the legal challenges succinctly.
Whether a municipality can undermine the exercise of fundamental and unalienable rights and ignore the U.S. Constitution and controlling Supreme Court precedent?
Whether a municipality can ignore its state constitution and state law by infringing upon and criminalizing an individual’s unalienable and natural right to self-defense, and the right to keep and bear arms?
Here are a few highlights from Caldera V. City of Boulder:
87. The Second Amendment protects firearms in “common use, ”which “could contribute to the common defense.” United States v. Miller, 307 U.S. 174, 178 – 179 (1939).
88. Detachable magazines are an integral part of “Arms,” and thus, are protected by the Second Amendment.
89. Detachable magazines are typically possessed by law-abiding citizens for lawful purposes, such as self-defense.
I was surprised I didn’t find any reference to Caetano v. Massachusetts in the lawsuit. Caetano is a unanimous Supreme Court decision declaring all bearable arms in common use are protected by the Second Amendment. The rifles and magazines affected by ordinance 8245 are far more common than the stun guns the Caetano decision was concerned with.
Ordinance 8245 has an interesting set of exemptions. It exempts members of the Reserve Officer Training Corps (ROTC). To become a member of the ROTC, a university student need only sign up for a class. Army, Navy, and Air Force ROTC programs are all available at Boulder, Colorado. From proposed ordinance 8245: (edited to show proposed ordinance without stike-throughs and underlines)
5-8-25. – Exemptions from Chapter.
Nothing in this chapter shall be construed to forbid any officer of the
United States including but not limited to federal agents and United States Marshals, any sheriffs, constables and their deputies; any regular or ex-officio police officer; any other peace officers; or members of the United States Armed Forces, Colorado National Guard or Reserve Officer Training Corps from purchasing, having in their possession, displaying, concealing or discharging such weapons.
Colorado is in the jurisdiction of Tenth Circuit Court of Appeals. The Tenth Circuit hasn’t ruled on the constitutionality of a ban on semi-automatic “assault weapons” (variously defined) or or magazines with a capacity of over a certain number of rounds.
Such bans have been upheld in the Second Circuit, the Fourth Circuit, and the Seventh Circuit, under very dubious reasoning. The Circuit Courts are attempting to rewrite the Heller case in order to write semi-auto firearms as not protected by the Second Amendment. The Supreme Court has refused to review those cases. Some have claimed the court is looking for a clear split in the Circuits in order to accept a case.
That might happen in the Tenth Circuit. I consider it unlikely. The Boulder ordinance is likely to be found in violation of the State preemption law, thus rendering the Second Amendment challenge mute. From findlaw.com:
Colorado Revised Statutes Title 29 Government Local § 29-117-103
A local government may not enact an ordinance, regulation, or other law that prohibits the sale, purchase, or possession of a firearm that a person may lawfully sell, purchase, or possess under state or federal law. Any such ordinance, regulation, or other law enacted by a local government prior to March 18, 2003, is void and unenforceable.
The Boulder ordinance is believed to be impotent by all sides. Its passage is political virtue signaling. It will accomplish nothing but entangle the city in a lawsuit the citizens may not pay for. Deep pockets outside the City have already offered to aid its attempts to disarm its citizens. From the dailycamera.com:
City Attorney Tom Carr said Boulder has received offers of gratis help from “outside law firms” that will reduce the impact of both cost and time to city staff.
In any case, Boulder is a wealthy city. They can afford such extravagances.
It would be ironic if the Tenth Circuit struck down the ordinance on Second Amendment grounds, creating a Circuit split, pointing the case toward the United States Supreme Court.
©2018 by Dean Weingarten: Permission to share is granted when this notice and link are included.