County sheriffs unhappy with gun control laws enacted in the Centennial State last year remain steadfast in undoing unenforceable and unconstitutional laws.
“Technically every law enforcement agency in the state is committing a crime,” said Weld County Sheriff John B. Cooke, the first-named plaintiff in a federal lawsuit against Colorado Gov. John W. Hickenlooper, Jr., a Democrat,who was elected into office in 2010 with 51 percent of the vote.
Under state law when one individual sells or loans a firearm to another, that “transfer” must be conducted through a Federal Firearms Licensee, said Cooke. “The deputies come on duty and are transferring weapons without a federal firearm license making it an illegal transfer.”
In March lawmakers passed and the governor signed into law various gun-control measures that precipitated the federal lawsuit, he said.
Fifty-four out of 62 Colorado elected sheriffs together with retired law enforcement, Federal Firearms Licensed dealers, disabled individuals, gun manufacturers and other concerned citizens filed a complaint in federal court against the governor claiming violations of the Second and Fourteenth amendments to the U.S. Constitution.
A ban on high-capacity magazines and required background checks for the private sale and transfer of firearms are the two components of the legislation being targeted for dismissal in the courts, said Cooke.
“The legislature basically outlawed all magazines not just ones that can hold more than 15 rounds,” he said. “Any magazine that can be readably converted to hold more than 15 rounds is illegal – which is about every single magazine made.”
The complaint alleges that banning most box and tube magazines which are an essential part of many common firearms is a patent violation of the Second and Fourteenth amendments under Heller and McDonald:
“Eighty-two percent of handguns and at least one third of rifles currently manufactured in the United States are semi-automatic, which means that most of them store their ammunition in detachable box magazines… [T]he magazine ban amounts to a ban on having a functional, operating unit for most handguns and a very large fraction of rifles.”
Last week a coalition of pro-Second Amendment legislators attempted a full repeal of the unlawful magazine capacity limit only to be rejected at the committee levels of a Democrat-controlled legislature, said Cooke.
According to the new law, if a firearm with a magazine attachment was taken into possession after July 1 it would be considered a crime; but if that same firearm was purchased before July 1 it is a “grandfathered” magazine and not considered a crime, he said.
The sheriff presented the two differently-dated magazines to the committees and asked them to tell the difference. “Obviously they could not do it.”
When neither the public nor law enforcement can distinguish between two magazines that are identical the law is unconstitutional, he said.
“The magazine ban is not only a Second Amendment violation but a Fourteenth Amendment violation under due process because with due process the person has to reasonably know they are committing a crime.”
The next hearing in federal court is March 31 before Chief Judge Marcia S. Krieger, said Cooke. “Briefs and motions have been filed and witnesses have been deposed.”
Plaintiffs recently filed an amended complaint after Krieger ruled that the 52 original county sheriffs named in the lawsuit could not file in their official capacity as sheriffs however 11 sheriffs could remain as plaintiffs in an individual capacity, he said.
“My personal opinion is that the judge will give the state the ability to determine the size of the magazine but since the law is so poorly written she is going to throw it out and leave it up to the legislature to write their bill.”
Despite which way the court rules, the electorate has to elect better people, said Cooke. “If we elect a Republican governor and we elect Republicans in the House and Senate, we can take back the majority.”