Judge upholds CO mag restrictions

[steve4102]

Colorado's 15 round mag limit was found "Constitutional" by U.S. District Court Judge Marcia S. Krieger. She said that there was no evidence that the magazine restriction reduce a persons ability to defend themselves. 50 pages found here.

https://www.coloradoattorneygeneral....outfitters.pdf

[MTT TL]

I guess they can apply this to the police then. It will not affect their ability to defend themselves.

[Tom Servo]

The opinion is a mess. The court has upheld the constitutionality of the background-check requirement for private sales and the 15-round magazine capacity limit. As usual, "intermediate" scrutiny wins the day.

The M-16 rifle mentioned by the Court is a military version of the AR-15 rifle, a rifle that several witnesses in this case testified that they possess for their own self-defense purposes. If, as Heller implies, the M-16 rifle can legally be prohibited without violating the Second Amendment, it seems to follow that other weapons such as the AR-15 may also be prohibited, notwithstanding the fact that some individuals believe that such weapon is important, or even essential, to their self-defense. [p. 25]

the Court finds that although § 18-12-302 [the 15-round magazine capacity limit] burdens the operation of semiautomatic weapons, the burden is not severe because it does not materially reduce the ability of a person to use a semiautomatic firearm for self-defense, nor does it reduce the effectiveness of self-defensive efforts [p. 31]

There is no dispute that when a shooter pauses to reload a weapon or shift to another weapon, there is pause. Mr. Cerar and Mr. Fuchs call this the “critical pause” because it gives potential victims an opportunity to hide, escape, or attack the shooter. This pause also gives law enforcement or other armed individuals an opportunity to act. [p. 34]

I guess we're off to the 10th Circuit from here.

Even though Governor Hickenlooper has apologized and admitted that he didn't do his diligence before signing the law, Scott Morse (who was recalled from office over it) and Rhonda Fields say this vindicates their votes for it. Ironically, the state Attorney General doesn't even appear to be a fan of the laws:

Like Judge Krieger, the Colorado attorney general’s office has never asserted that the laws in question are good, wise or sound policy. As it does in all cases, the AG’s office has fulfilled its responsibility to defend the constitutionality of the Colorado law in question.

[40-82]

I find it enlightening but not surprising that an attorney general's office would see its role as one of defending the power of the government and not the rights of the people.

[Spats McGee]

Originally Posted by 40-82

I find it enlightening but not surprising that an attorney general's office would see its role as one of defending the power of the government and not the rights of the people.

I haven't look into the statutes of other states regarding their respective AGs, but in Arkansas, that's not a matter of how the AG's office "sees" its role. That is its role by law.

The executive department of this State shall consist of a Governor, Lieutenant Governor, Secretary of State, Treasurer of State, Auditor of State and Attorney General, all of whom shall keep their offices in person at the seat of government and hold their offices for the term of two years and until their successors are elected and qualified, and the General Assembly may provide by law for the establishment of the office of Commissioner of State Lands.

Ark. Const. art. VI, § 1(emphasis supplied)

Note that the AG is part of the executive branch.

(a) The Attorney General shall be the attorney for all state officials, departments, institutions, and agencies. Whenever any officer or department, institution, or agency of the state needs the services of an attorney, the matter shall be certified to the Attorney General for attention.

Ark. Code Ann. § 25-16-702 (West)

[MTT TL]

I thought the AG has the duty to NOT defend a law that is unconstitutional?

[Frank Ettin]

Originally Posted by MTT TL

I thought the AG has the duty to NOT defend a law that is unconstitutional?

But once a law in enacted, the question of its constitutionality is one for the federal courts.

[ChuckS]

Originally Posted by Fank Ettin

But once a law in enacted, the question of its constitutionality is one for the federal courts.

Interesting!

For an example, the PA AG refused to defend the "Gay marriage ban" law when it was challenged in court. Can she opt out? (she did) or is that legally unethical?

So, if Colorado had an AG that believed the CO gun law was unconstitutional he/she couldn't just refuse to defend it in court? Personally, I would want to see an attorney's best efforts put into the case. If they don't believe in the law, how can they?

Our system, I understand, is adversarial, and both sides get an attorney. Even those defendants that have a laughably weak case.

[JimDandy]

I'm also curious about this... if the Massachusetts legislature tried to re-enact their yellow line law with minor changes, would the MA AG have to defend it again or can they tell the legislature the changes weren't enough, and the law is still too likely to be unconstitutional to be worth the budgetary cost of defending it?

[Frank Ettin]

Originally Posted by ChuckS

Interesting!

For an example, the PA AG refused to defend the "Gay marriage ban" law when it was challenged in court. Can she opt out? (she did) or is that legally unethical?....

Other AGs have done similar, and that raises interesting ethical and constitutional issues relating to a lawyer's professional obligations on behalf of a client and the separation of powers.

But beyond those important issues, such an action by an AG does not resolve the question of the constitutionality of the law. In any particular case that would require a final decision of a federal court on the merits.

[JimDandy]

What's the difference in when they surrender? In the news story on the recent end to the Yellow Line free speech zone law in Massachusetts, the news media mentioned it was trouble for 5 other towns/cities I can't remember the name of right now as most were smallish East Coast towns I've never even been to- Burlington Vermont may be one and I only remember it because I idly wondered if it was the home of the Burlington Coat Factory.

Anyway, does the Supreme Court decision which ended the yellow line also single out the laws in this 5 places as well? Does the legal community just agree that it covers them without a judicial order saying so? Does someone have to bring a suit against each of those 5 places for a 5 minute slam dunk?

Obviously this doesn't quite apply here as there isn't a case making it a slam dunk magazine restrictions wouldn't have been held up, and in fact they were, not were not held up (so far), but you folks are talking in relative absolutes.

Is the AG of one of these other states really technically if not realistically expected to honestly and vigorously, at great cost, defend the Constitutionality of a law that wasn't included in, but was phrased exactly or close enough to the same as another struck down by the highest court in the land just yesterday?

[Gary L. Griffiths]

At least a portion of the ruling, regarding the UBC law, is that one plaintiff has lack of standing to sue because there is no evidence that the law will be enforced!

From the horses, er, judges mouth on page 15 of the ruling:

In addition, assuming that he kept a firearm for longer than 72 hours with the owner’s permission while performing maintenance duties on it, he has not shown any credible threat that he would be prosecuted for not first obtaining a background check. Accordingly, the evidence does not establish Mr. Harrell’s standing.

Are we now to assume laws are Constitutional if they're not intended to be enforced?

[doofus47]

Not unexpected, but I was hoping for the easy end to this ridiculous situation.
I am a bit proud of our AG for defending laws that they don't believe in. I see other states pick and choose what laws they want to defend and I see this as a bad thing. When the executive branch of a gov't can pick and choose which laws to follow, they might not pick the popular ones (like the 4th Amendment) to enforce.

[Spats McGee]

Originally Posted by Gary L. Griffiths

Are we now to assume laws are Constitutional if they're not intended to be enforced?

It doesn't mean that the law is constitutional, but it goes to whether a given Plaintiff has standing to challenge the law. If there's no real threat of prosecution, then the plaintiff has no cognizable injury to address.

Also, just because there's no threat of prosecution as to one particular plaintiff, it only means that that particular plaintiff doesn't have standing. It doesn't necessarily mean that the law won't be enforced against someone else, who might have standing to challenge it.

[Gary L. Griffiths]

Understand all that, Spats. Perhaps I was being too simplistic. But doesn't it strike you as odd that a plaintiff who is clearly subject to the law can be dismissed for lack of standing because the judge believes he won't be prosecuted?

[Glenn E. Meyer]

Wily old bird Scalia's reasonable restrictions will be the order of the day. Don't expect SCOTUS to change that.

[Spats McGee]

Originally Posted by Gary L. Griffiths

Understand all that, Spats. Perhaps I was being too simplistic. But doesn't it strike you as odd that a plaintiff who is clearly subject to the law can be dismissed for lack of standing because the judge believes he won't be prosecuted?

Not particularly. To trot out an entirely unfair comparison, if there's a law on the books making illegal to keep an alligator in my bathtub, but I have no intention of keeping an alligator in my bathtub, then there's no danger of prosecution. What, then, is my cognizable injury, sufficient to maintain a challenge to the law? That all stems from the "case or controversy" language of Article III. If there's no injury, there's no controversy, and no case.

[Gary L. Griffiths]

OK, Spats, but Mr. Harrel contended that he sometimes kept firearms he was repairing for more than 72 hours. That would put him afoul of the law.

BTW, appreciate your sharing your knowledge here and in other threads.

[Tom Servo]

Wily old bird Scalia's reasonable restrictions will be the order of the day. Don't expect SCOTUS to change that.

The problem I see here is that it will be very hard to prove the two laws in question violate the 2nd Amendment in the way Scalia read it.

The argument that a "critical pause" while the mass shooter reloads can save lives may be questionable, but the antis are working it well, and it runs through this decision. As it is, we had a chance (with Massad Ayoob on board) to make the case we may need more than 15 rounds for self-defense, but it didn't stick. The court found that a 15-round limit didn't burden the exercise of the 2A enough, and it'll be hard to find a judge who will stick his neck out to disagree.

Same goes for the background-check requirement. With "intermediate" scrutiny in place, we have to prove a very serious burden on the 2A, and that's a hard argument to make.

Honestly, both of these battles are best fought in the legislature.

[iraiam]

So somehow because the restriction is not "severe" it's OK, seems like a ridiculous argument weighed against the actual text of the 2nd Amendment.

[Glenn E. Meyer]

Not to take the side of banners and I didn't read the decision but couldn't all the rhetoric that you don't need more than a J frame, don't need an extra mag, that many concealed carry handguns are moving towards smaller capacity be used as an argument for a 'reasonable' restriction.

Why even IDPA (the self-proclaimed most tactical game) only allows 10 rounds!

I don't see the SD argument being that strong for someone who isn't in the gun choir. However, the defense against tyranny argument is better from my theoretical standpoint but that hasn't had much traction lately.

If you can't do in 2 shots - you ain't doing your job - that's fairly common gun shop blather.

[Tom Servo]

If you can't do in 2 shots - you ain't doing your job - that's fairly common gun shop blather.

Oh, it's actually in the opinion:

There is a curious paradox here: the more competent the defensive firearm user, the more likely he or she is to hit her target with fewer shots, and thus, the less likely that user is to need a large-capacity magazine for defensive purposes. By contrast, the less competent or confident the user, the greater the number of rounds the user per [p. 30]

[Frank Ettin]

Remember that this is just the trial court level. It's not necessarily over.

[Tom Servo]

Remember that this is just the trial court level. It's not necessarily over.

I wonder if it should be over, at least in the courts. Egregious registry schemes like we're seeing in Connecticut and New York should probably be the main focus. Those are more likely to generate outrage and/or sympathy.

Frankly, it looks like we're stuck with intermediate scrutiny for the time being. There's no guarantee that the 10th Circuit is going to buck that trend, and their easiest course will be to rule that the 15-round magazine cap and the UBC's aren't that big of a burden.

And do we need more cases affirming such things? I really think this one needs to be punted back to the legislature.

[HiBC]

A group of Colorado Sheriffs were the plaintiffs.The message from their lawyer"Consider it appealed"

Its not over.