March 14, 2013

What HB 1224 Means To You

Here's a .pdf of HB 1224, the magazine ban, in its final form. It's on its way to the governor's desk.

Here's the governor's contact page. Especially if you reside in Colorado, it's important that his office hears from you. If you're outside of Colorado it's important that you let him know your vacation/hunting/business dollars will not be spent in Colorado if this bill becomes law.

In the extended entry I'll go over what the bill does...

18-12-301 (2)(a) (I)
"A fixed or detachable magazine, box, drum, feed strip capable of accepting, or that is designed to be readily convertible to accept, more than 15 rounds of ammunition."

18-12-301 (2)(a) (II)
"a fixed, tubular shotgun magazine that holds more than 28 inches of shotgun shells, including any extension device that is attached to the magazine and holds additional shotgun shells, or"

18-12-301 (2)(a) (III)
"a nontubular, detachable magazine, box, drum, feed strip, or similar device that is capable of accepting more than 8 shotgun shells when combined with a fixed magazine"

That's the heart of it. tube magazines for lever actions and .22 rimfire rifle are exempted. A magazine that has been permanently altered so it can't accept more than 15 rounds is also exempted.

18-12-302 (1)(a)
"Except as otherwise provided in this section, on and after July 1rst, 2013, a person who sells, transfers, or possesses a large capacity magazine commits a class 2 misdemeanor."

Possession of a magazine before the date of enactment (July 1rst) effectively grandfathers that magazine, but it must remain in continuous possession. The prosecution bears the burden of proof, essentially making possession before enactment an affirmative defense. Violations will be a class 2 misdemeanor for a 1rst offense, and a class 1 misdemeanor for a 2nd offense. Government employees, in the course of their official duties, are naturally exempted from prosecution under this bill.

In 18-12-302 (3) the exemptions for business begins. it says "within Colorado" in 2 different sections, 18-12-302 (3) (a) & 18-12-302 (3) (c) respectively. I'll come back to that later, but it's very important.

18-12-303 details that Colorado made magazine must be marked, with the CBI empowered to decide what, if anything other than the date of manufacture, will be required.

That's the bill in a nutshell. Now here's the fun part - there is no exemption whatsoever for transfers. If I hand a magazine I can legally own to someone else who legally owns the same type of magazine we've both committed a class 2 misdemeanor.

Remember that bit about "within Colorado" that I said was important? It exempts folks who are transporting magazines from a Colorado manufacturer to an out of state (or intrastate government) entity, but it does not exempt folks from out of state manufacturers who are passing through.

This is another fun part of the law; as far as I can tell it does not exempt a common carrier who is transporting magazines from out of state to a government agency.

A trucker, or train conductor or cargo pilot, coming from Kansas with a shipment of magazines destined for Nevada would violate this law since the magazines were not made "within Colorado".

A trucker or train conductor or cargo pilot, coming from New Mexico with a shipment of magazines destined for the Colorado Bureau of Investigation would violate the law since the magazines were not made "within Colorado".

If they hadn't have added those 2 words then the bill wouldn't have these results.

But as it stands it directly interferes with interstate commerce. That's something the constitution actually does delegate to the feds, not the states, so that part of the bill alone renders the entire thing null. It conflicts with federal law in an area the state has no authority to meddle.

By all means, mention that to any and every lawyer you know, just in case they want to have an easy win in their resume.

Once a damn gain, because it's that important, this Colorado law would chill interstate commerce because it makes transport of a magazine not manufactured in Colorado a crime even if a common carrier is just passing through without any intention of stopping.

Even a 10th circuit judge would have trouble not striking the law down on that basis alone.

And there's no severability in this bill. You couldn't just strike out that one part and have the rest of the law left intact.

But until a court grants injuctive relief from this law (I'm guessing July 2nd or thereabouts) let's look at the effects of this bill:

No transfers whatsoever. Not to your wife, husband, momma, daddy, sister, cousin, pastor, shaman or Pope. If you have a magazine that holds, or is designed to be readily convertible to hold, more than 15 rounds it's yours but you can't let anyone else hold it in their hands. Not ever.

This means a magazine that is contained within a firearm. If you and your husband of 30+ years are at the range you cannot hand it to him to shoot, or to even hold onto while you check your target. Not unless you first remove the magazine.

If you have an SKS with a fixed 20 round magazine, you can't hand it to him to hold. Period.

That same SKS with a fixed 20 round fixed magazine could not ever be handed over to a gunsmith if it's in need of repair.

No transfers. Not after July 1rst. Not ever.

"designed to be readily convertible to hold"

A magazine consists of 4 parts (generally): a magazine body, a follower, a spring and a floorplate (or basepad). To increase the capacity of a magazine, one can simply change out the floorplate, or the follower. It takes less than a minute and can usually be accomplished without tools. Extended capacity floorplates and followers are readily available for most popular magazines. A guy with a well stocked garage could make an extended floorplate in under an hour.

That means any magazine that holds close to 15 rounds could be considered to be "readily convertible". I have a 12 round magazine that I can convert to hold 17 rounds, so even though it only holds 12 it could be a prohibited item after July 1rst, 2013. That means while I can possess it, I can't let anyone hold it, or shoot the pistol it's designed for with it in it.

That also means when a magazine is near the end of its useful life, I'm fairly certain it'd be illegal for me to acquire a new spring, or floorplate, or follower. That would, after all, be manufacture and since I was manufacturing said prohibited item for myself I wouldn't meet any of the exemptions listed for manufacturing.

Those provisions prohibiting transfer and presumably making repair illegal, directly impose upon a person's Right to own and carry weapons, as enumerated in both the federal and state constitutions. Magazines are a necessary component of a firearm, and removing a magazine makes a firearm not only significantly less useful, but in some cases (as with firearms using a magazine disconnect safety, such as the Browning High Power or many models from Ruger, Smith & Wesson, etc. ) completely inoperable.


28 inches of shotshells would cover a 28" barrel with a tube extension that fits almost flush, so as far as I can tell everything is cool with shotguns that have a tubular magazine. Such an extension would, if I recall correctly, hold eight 3"shells or nine 2 & 3/4" shells.

But the next part is a bit baffling:

18-12-301 (2)(a) (III)
"a nontubular, detachable magazine, box, drum, feed strip, or similar device that is capable of accepting more than 8 shotgun shells when combined with a fixed magazine"

The nontubular detachable mag would exclude tube extensions to magazines. But the part about "when combined with a fixed magazine" is a bit puzzling. I do not know of any system wherein a detachable box magazine, or detachable drum, is used in conjunction with a fixed magazine. (If I remember right, the Knoxx Sidewinder was a conversion kit that used a drum or box magazine with a pump action shotgun, but it required replacing the fixed magazine tube with a tube set up for that magazine, so it wasn't a fixed magazine anymore, simply a tube that accepted a detachable magazine.)

This would not be the first time a law was drafted to cover an item that did not exist. But I do wonder what exactly they were trying to do with that section.

The troubling part is that courts take the sometimes optimistic perspective that any section of law was intended to actually do something. So I would worry that an enterprising young judge, or a devious progressive judge, would perform a whole subroutine of mental acrobatics in order to find something that this section actually bans. The bill as originally drafted prohibited 5 shotshells, then it was moved to 8 before this final revision. A careless or dishonest judge might try to claim 8 is still the magic number despite the confusing language used in the text.

Judicial misinterpretation notwithstanding, as it is written, if you have a Saiga shotgun with a 12 round magazine, those magazines would still be legal since they are not combined with a fixed magazine in a Saiga shotgun. A judge's mileage may vary of course, but if the courts go by the text of this bill it would not ban detachable box or drum magazines for shotguns unless they were somehow added to a fixed magazine.

But the purpose of this bill, and others like it, isn't to garner convictions. That's just a side benefit. The idea behind this bill, and others like it, is to make it as perilous as possible to engage in the shooting sports, and virtually impossible to engage in the shooting sports with anyone else. This bill makes teaching new shooters hazardous and complicated.

The practical effects are burdensome to say the least. I don't see many sheriff's deputies actively enforcing this law. A city cop however will see this as a new "tool" in his LEO arsenal. If he comes across an alleged or suspected violation expect to be arrested and have your firearms as well as magazines confiscated. When you go before a judge and explain you had the magazines prior to July 1rst, 2013, or that the detachable magazine for your shotgun was never combined with a fixed magazine, even if the judge agrees and dismisses the charges you still have spent time in jail, likely put down real money to retain a lawyer, and now have the daunting task of getting the police department to return your firearms and magazines.

There are many police departments all over the country that will drag their feet and make it as difficult as possible to return a firearm even when you've been cleared of all wrongdoing. I doubt the Denver or Aurora police departments will make things easy, and the suburbs may have department heads who won't take anything but a direct court order as proof they have to give your property back.

I'm certain that, if this bill become law, almost any judge will strike it down within hours of being presented with the interstate commerce problems it creates. A decent judge would strike it down because of the chilling and burdensome effect it has on the Right to arms, which is enumerated in 2 applicable constitutions. But it would be far better on a number of levels if this bill were vetoed rather than enacted for any length of time.

I'm not a lawyer (I've made an honest living) but I cannot see how such a poorly written bill could withstand any legal challenge, on any of the grounds I've mentioned here. The numerous amendments seeking to fix drafting problems have only created more confusion, and the end result is a bill that conflicts with 2 distinct sections of the federal constitution, as well as definitively questioning the Right to own and carry weapons which is prohibited by the state constitution.

Also, this bill was not solely a local effort. From what I have seen this bill is part of a national effort to implement gun owner control. If this bill does pass into law, even briefly, it will be used to encourage support for similar measures at the state and federal level.

If you're in Colorado you know that it's important to contact the governor and urge - neigh, demand - that he veto this bill. If you're out of state it's still very important, because at this stage a loss here will bolster the anti gunowners in your state as well as nationally, and you may see something like this being pushed in your area.

It's still not law. It's merely a bill. There's still time, and a chance, to convince the governor to veto this bill.

Posted by Publicola at March 14, 2013 04:10 AM | TrackBack
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