Boulder, Colorado’s ban on modern sporting rifles and magazines that can hold more than ten rounds is a violation of the state’s firearm preemption laws, according to a district judge in the city that declared the local law null and void on Friday. The gun and magazine ban was enacted by the Boulder City Council in the summer of 2018, and has been the subject of multiple lawsuits challenging its legality. This particular case was brought by two Boulder residents who challenged the authority of the city council to enact or enforce the gun ban, given the fact that the state legislature in Colorado has reserved the right to set the gun laws in the state.
Specifically, the state preemptions statute bars localities from passing any 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.” In Boulder’s case, the city tried to ban the possession of some of the most commonly owned arms in the country, and in his ruling Judge Andrew Hartman not only tossed out the law, but granted a permanent injunction blocking the city from any attempt to enforce the measure.
Hartman held that the plaintiffs had standing to sue the city because “Plaintiffs are presently being injured by sale and transfer ban.” Boulder claimed that the plaintiffs had not “demonstrated that they plan to imminently sell, transfer, or acquire assault weapons or LCMs,” but the court rejected this argument, citing more than a half-dozen Colorado cases holding that a person doesn’t have to wait to be arrested before having sufficient standing to challenge a statute or ordinance when it affects a legally protected interest.
Hartman links the “legally cognizable interest, namely, their right to possess firearms in defense of home, person, and property” to the 2nd Amendment to the U.S. Constitution and Article 2, Section 13 of the Colorado Constitution, which says, “The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question.”
Hartman dismissed the claim that as a home rule city, Boulder could regulate firearms more strictly than the state does because such weapons “pose a special danger to a demographically unique Boulder.”
Boulder argued that a 2006 Colorado Supreme Court case upholding a Denver District Court ruling that Denver’s home-rule power to ban firearms was a reasonable exercise of the city’s police power gave Boulder the right to do so also.
But Hartman said that the Denver case was “non binding” and has been overruled by two state supreme court cases involving local control of oil and gas operations that clarified the relationship between local governments and the state regarding state preemption laws.
The crux of the issue is whether the matter is one of statewide, local or mixed state and local concern.
Hartman ruled that because the state comprehensively regulates firearms, including by enacting the preemption statute, the matter is one of mixed state and local concern, therefore the state preemption law prevails.
As Complete Colorado notes, Boulder can appeal the judge’s decision to the Colorado State Supreme Court, and may very well do so given that they cite the 2006 case in which the state’s highest court upheld a ban on modern sporting rifles.
This was not a pure Second Amendment challenge, and Judge Hartman didn’t have to decide whether Boulder’s ban violated the Second Amendment rights of residents. However, a separate federal lawsuit filed by the Independence Institute’s Jon Caldara, the Boulder Rifle Club, and several individual residents does allege that the city’s gun ban is an infringement on the Second Amendment (along with the Fourth, Fifth, and Fourteenth amendments as well).
Complete Colorado says that the federal case has been “on hold under federal rules of procedure until the state law issues over home rule versus state preemption were settled,” so its likely that it will remain on hold until the city of Boulder decides whether or not to appeal Hartman’s decision.
The good news is that, for now, Boulder’s gun and magazine ban has been put on ice. Coloradans should keep an eye out for what local legislators have to say about the case, however. While it’s too late in this year’s session to file new legislation, don’t be surprised if gun control activists and anti-gun politicians make an attack on the state’s firearm preemption laws their top priority in 2022. With Democrats in the state feeling increasingly emboldened to pass restrictions on the rights of gun owners, they may very well decide that they can afford to make the state’s firearm preemption law a campaign issue in next year’s elections by giving cities like Boulder the authority to implement local gun bans.
In other words, while this lawsuit may be over (depending on whether or not Boulder appeals), this isn’t the end of anti-gun attacks on the right to possess some of the most commonly-owned arms and accessories in the United States.