Lawsuit Filed Challenging Boulder, CO’s Assault Weapons Ban

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.

From the denverpost.com:

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.

Legal Question:

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.

Gun Watch 

comments

  1. avatar Sam I Am says:

    Once drove into and out of Boulder. Did not see a “Welcome to Boulder” sign, in either direction.

    Got the message. Spent my beer money in Golden.

  2. avatar Secundius says:

    The “Daily Camera” of Boulder, Colorado, involves the sale of “Bump Stocks” and Magazines of more than 10-rounds “After” 15 June 2018…

  3. avatar No uno says:

    *MOOT*

  4. avatar CU Law grad says:

    Longmont’s fracking ban was struck down (by a court located in Boulder) in 2016 because of an almost identical state preemption law. I’m predicting the court will follow that ruling and strike down this ban, but punt on the second amendment issues.

  5. avatar Shawn says:

    Wonderful. Another court case for POTG to lose.

    Doesn’t matter if it violates preemption. It’s a 2nd amendment case involving a gun ban and the NRA. Therefore like every other lawsuit like it for literally almost the past decade and that’s been going on the past three months it will fail. All judges hate guns and gun owners.

    1. avatar Secundius says:

      Ahhh, what Gun is being Banded? It bans “Bump Stocks” and “High Capacity Magazines”…

      1. avatar john y says:

        Wrong, read the ordinance
        “Illegal weapon means an assault weapon, large-capacity magazine, multi-burst trigger activator, blackjack, gas gun, metallic knuckles, gravity knife or switchblade knife.”

        ORDINANCE
        8245
        AN ORDINANCE AMENDING CHAPTER 5, “GENERAL
        OFFENSES,” B.R.C. 1981, TO BAN THE SALE AND
        POSSESSION OF ASSAULT WEAPONS, LARGE
        -CAPACITY
        MAGAZINES AND MULTI
        -BURST TRIGGER ACTIVATORS,
        AND SETTING FORTH RELATED DETAILS.
        THE CITY COUNCIL OF THE CITY OF BOULDER, COLORADO

        Although the University of Colorado and the campus of Naropa University are a major part of Boulders economy they do not like students.
        “The presence of a large number of students in the city of Boulder creates a higher than normal level of risk for the community.” In reference to college students.

    2. avatar Jon in CO says:

      Everyone in Colorado, except for the people in Boulder, hate Boulder. The above comment about fracking is correct, and there shouldn’t be an issue getting it overturned.

      On a positive note, Stapleton should be the next governor. I recommend people of the gun check out his issues page. Dude is legit.

  6. avatar Ralph says:

    “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.”

    SCOTUS is out of the 2A business for the foreseeable future, Gorsuch or no Gorsuch. The only Justice who seems pissed off about that is Thomas. Scalia was pro-2A. Alito is pro-2A. But Thomas is a 2A stalwart.

  7. avatar Geoff PR says:

    They may well likely lose the case, but it’s critically important that a stream of lawsuits like this one is continuously fed into the court system, so that by the time they eventually get to SCOTUS, we will have a court more sympathetic to 2A challenges.

    So thank you plaintiffs, and keep putting in the necessary legwork until we have the result we require…

    1. avatar Shawn says:

      So the courts upholding blankets gun bans and gun confiscation is a good thing? I’d like to hear that logic.

  8. avatar Kyle in Upstate NY says:

    Why do these gun organizations keep trying these lawsuits? The lower courts have made it abundantly clear that they will uphold AWBs. And the SCOTUS might even be inclined to do so as well, unless the justices who think Heller went far enough can be shown that “assault weapon” and “high-capacity magazine” are completely arbitrary terms defined any way the gun controllers want.

    1. avatar Shawn says:

      The Courts will uphold ANY ban. Let’s say California passes gun total gun ban: ALL guns banned. Ownership punishable by execution without trial with a 1 day turn in period with no ‘buyback’. Then they start going door to door and literally start killing gun owners and there entire families in there front yards. Not only that but survivors are publicly executed with anti aircraft guns ala north korea. You know what will happen? The 9th circuit upholds it saying it’s constitutional and the government of California has that right to murder there subjects. And SCOTUS refuses to hear it. Shit, I would expect once Democrats are back in charge that they would even approve the use of nuclear weapons. Imagine the United States government literally nuclear holocausting over 100 million people because they own guns. SCOTUS will say that the government has the right to exterminate 1/3 of their own population because guns. The courts have made it abundantly clear that they hate guns, hate gun owners and want all gun owners killed. Even if it means literally exterminating 1/3 of the country.

      Everything I said is on purpose quite insane and probably won’t happen. But the thing is that you hesitate and have to think about it should scare the hell out of you.

      1. avatar AL Bert says:

        I would predict 90% of law inforcement would quit if ordered to go door to door confiscation, because at some point the people will fight back. I bet it will be the politicians that would be in big trouble. In the end the people always over throw the government! On the other hand the law will just be ignored anyway!

  9. avatar troutbum5 says:

    This is a clear and blatant violation of the Colorado constitution and the preemption clause (and the 2nd amendment, of course). Boulder will claim home rule status in court., which would negate preemption. Total BS, but the Colorado Supreme Court is firmly left, and they may rule in Boulder’s favor. The Boulder police chief has already said that the law is pretty much unenforceable, and they won’t be actively looking for violations. Another feel good, hand wringing, stupid law that won’t do a damped thing except violate rights and make life difficult for law abiding citizens.

  10. avatar USMCVeteran says:

    What “We The People” really need is politician/bureaucrat control, only then will the American people be truelly safe.

    1. avatar Sam I Am says:

      “What “We The People” really need is politician/bureaucrat control, only then will the American people be truelly safe.”

      “We the people have precisely the government we elected. It is called “the swamp”. Those critters did not materialize out of a transporter beam.

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