November 17, 2004

Rocky Mountain Low

Ya know, I was looking forward to doing a few things around here; cleaning a new acquisition; writing about said new acquisition; loading some ammo for said new acquisition; writing about some older acquisitions; perhaps even watching a movie.

But nope. I'm here reading a very interesting court opinion that's based on a very flawed premise. That would be the opinion in Denver v. Colorado concerning Denver's gun control laws & Colorado's preemption law.

Dave Kopel was kind enough to send me a link to the .pdf of the ruling in this case. There were a few minor surprises but nothing totally unexpected.

Meyer starts off by explaining how the "home rule" thing works. More or less if a mater is of local & not statewide concern then a city that has home rule status if the final authority - not the state legislature. In an area of mixed concern (partially state, partially local) then state law trumps local law unless local law can be viewed to harmonize with state law. & of course if it's a matter of statewide concern then the state wins hands down. He then explains the criteria for making such determinations.

Now let's look at the basis of a flawed decision:

"It is noted that the State's interest in regulation of firearms is based in part on a desire to protect the constitutional right of a person to keep and bear arms. See C.R.S. §§ 18-12-201(e), 29-11.7- 101(a)(b) (2003)."

Huh? The state must regulate a constitutionally acknowledged Right in order to protect it? Does this mean if we don't get our church goer licenses we'll lose the freedom of conscience?

Actually he might be partially correct if he's implying that the state felt it necessary to regulate counties & cities that had firearms laws. In other words he would be correct in saying that state has an interest in passing laws that restrict city & county laws that would violate a person's Right to Arms. But by doing so he would be laying the groundwork for a decision against Denver unless...

"This right, however, is not absolute and does not automatically preempt firearm regulation. Contrary to the declarations in Senate Bill 25, the right to bear arms has not been held by the courts to be a fundamental right. See Trinen, 53 P.3d at 757 (citing People v. Young, 859 P.2d 814 (Colo. 1993)). Moreover, the right is specifically limited where the constitutional provision states that "nothing herein contained shall be construed to justify the practice of carrying concealed weapons." See Art. ii, § 13, Colo. Const."

Ah. As I feared. No Right is Absolute if it can be taken or tampered with by force. It's the same reasoning that says you didn't really own that money since it was stolen from you.

The courts have not held the Right to Arms as Absolute. Hell, most still insist it's a collective rather than an individual Right. But what if, maybe, just maybe, the courts (who are made up of judges who mostly were lawyers) are out to lunch on this one? What if their collective head is so far up their collective robe that they just made an error?

The courts are not infallible. Far from it. What makes matters worse is our case law system & a few doctrines (such as stare decisis) in which a case ruled by a higher court is binding on a lower court no matter how obviously flawed the higher court's reasoning is. (& no I don't have an effective alternative to propose; I'm just pointing out one of the flaws with our current system.)

What has happened with the Right to Arms is that one case was decided badly, another case was decided less than correctly & misinterpreted & thus we have judicial precedent that denies an individual Right to Arms, let alone any possibility of said Right being Absolute.

I've written about a lot of this before. Please see the following:

Rights are Absolute

Concealed Carry & Prior Restraint: It's Not Like Yelling Fire

Reasons Against CCW Permits

The Means, Knowledge & Will to Resist

Florida Constitution & concealed carry

Response to Eugene Volokh concerning levels of judicial scrutiny & the assault weapons ban being constitutional

Colorado's new CCW vs. Colorado's old CCW vs. Colorado's proposed but tabled CCW

Absolutisim 101: Prior Restraint

As He Told The Miller's Tale: Problems With U.S. v. Miller

I will submit that the courts have gotten it all wrong about the Right to Arms. It is an inherent, fundamental individual Right that is by its very nature Absolute. Not that it cannot be touched upon but that it cannot justifiably be touched upon by government.

"Firearm regulations promulgated by the State or a local municipality under the home rule amendment may coexist with the constitutional right to keep and bear arms so long as such regulations are a reasonable exercise of the governments' police powers. Fee, e.g., Robertson v. City and County of Denver, 874 P. 2d 325 (Colo. 1994) (upholding Denver's assault weapons ban); Trine n, 53 P. 3d 754; People v. Pflugbeil, 834 P.2d 843 (Colo. App. 1992) (order depriving mental patient of right to weapons)."

Now here's the conflict: I see nothing in Colorado's constitution which excepts the Right to Arms to "...reasonable exercise of the governments' police powers". In fact, with the exception of the concealed carry language, I'd say Colorado's constitution exempts ownership & possession of weapons from the governments' police powers, reasonable or not. But somehow the courts have decided that the governments interest in controlling people firearms is an obvious exception to the protections of the constitution, even if said exception is never written down or implied in the text.

Judge Alex Kozinski spoke of this type of jurisprudence in his dissent regarding the decision not to re-hear Silveira v. Lockyer en banc:

"Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that 'speech, or . . . the press' also means the Internet, and that 'persons, houses, papers, and effects' also means public telephone booths. When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases - or even the white spaces between lines of constitutional text. But, as the panel amply demonstrates, when we're none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there."

And so Colorado's constitutional acknowledgement of the Right to Arms is casually dismissed by Meyers. I will refer you to an essay called Trust by Kevin of The Smallest Minority. I think it sums up a probable motivation by Meyers & his ilk to dismiss the Right to Arms as being subject to the state. (In any event it's an interesting read.)

Now we come to the particulars of this case:

Firearms in Vehicles: More or less Meyer sides with the state, thus negating most of Denver's law where it conflicts with state law. In effect this means that people with CCW permits can carry in Denver, & a concealed firearm may be carried in a vehicle. Meyer specifically struck down some language in a revised version of Denver's prohibition on carrying firearms in vehicles. The phrase "when there is a direct and immediate threat thereto" was judged to be conflicting with state law in an area of state & local concern & struck down, as was the phrase "while traveling into or through the city to or from another jurisdiction, regardless of the number of times the person stops in the city or the other jurisdiction" thus making Denver's law against concealed carry of firearms in vehicles invalid for most purposes. He does uphold a section of Denver law that states firearms must be unloaded unless they're carried for self defense, but this concerns open carry rather than concealed carry.

This should demonstrate how ridiculous the concept of concealed carry laws are in general, at least in states where open carry is okay. Would someone explain to me the practical difference between carrying a loaded gun concealed, or an unloaded gun openly? Or vice versa. Hell, I'm still wondering why concealed carry is treated any differently than open carry. Aside from the 19th century arguments about an honest man wearing his guns for the world to see I see no compelling reason to regulate or prohibit either form of carry.

Open Carry of Firearms: Denver law has some affirmative defenses for carrying openly. An affirmative defense is simply a shift of the burden of proof from the state to prove you were doing something wrong to you to prove that you were not doing anything wrong. Think of it as guilty until proven innocent.

To quote from Meyer's opinion:

"Section 38-117(b) of the Denver Revised Municipal Code makes it unlawful for any person 'to carry, use or wear any dangerous or deadly weapon, including, but not by way of limitation, any pistol, revolver, rifle, shotgun . . . or any other dangerous or deadly weapon.' It is not an offense if the person has a permit and is carrying a concealed handgun or if the person is carrying the weapon in a private automobile for hunting or self defense. Section 38-117(f)(1) and (2). Affirmative defenses to a charge of openly carrying a firearm are listed in §38-118(a) and (b) and include carrying the weapon in a person's own dwelling, place of business or own property, carrying the weapon in defense of home, person or property when there is a direct and immediate threat, for use on a hunting trip or target shooting, transportation as a collector or licensed dealer, and moving personal property from an old residence to a new residence"

Now just to show how disdainful Denver is of the Right to Arms, openly carrying a pistol can get you cited or possibly even arrested but graciously if you can prove to a judge that you were in your own house or business then the charges will be dropped. Hell, you might even get your pistol back.

Now here's this gem from Meyer:

"State law contains no restriction on the open carrying of firearms, nor does state law expressly permit the open carrying of firearms".

If there is no restriction on an activity, then it's legal. While I can understand why he pointed out that there's no prohibition on open carry on the state level, his following sentence about it not being expressly condoned implies that there's some ambiguity to the law.

Once I went to cash a check at a bank I used to do business with. The lady behind the counter didn't seem enthralled by my appearance & that came through when she informed me that if I didn't deposit all the money from the check into my account then if the check bounced I'd be liable for that amount. She seemed a bit taken aback when I told her that if the check didn't bounce then I'd get to keep it. (Maybe it loses something in a written format but in person it was funny as hell.)

But aside from the seemingly prejudicial slant to the judge's comment, he's wrong. State law does not prohibit open carry, but it is expressly condoned as a matter of Colorado law. The Colorado constitution has a provision that says the Right to own & carry arms shall not be questioned, but this doesn't justify carrying concealed. Now since concealed carry is excepted from the constitution's acknowledgement that leaves only open carry. So open carry is indeed specifically protected by Colorado law. Not by statute, but by the state constitution itself.

Now to his credit Meyer calls Denver on an outright lie: they argue that their law about open carry only regulates it, but Meyer points out that it's on its face a prohibition, not a regulation. Unfortunately that's where the good part ends.

"Denver is by far the most densely populated area of Colorado. See Appendix B to Plaintiffs' Brief in Support of Motion for Summary Judgment Denver also suffers rates of violent crime far in excess of statewide averages. Id., Appendix C. These unique factors predominate over any need for statewide uniformity or any concern about extraterritorial impact. Uniformity in itself is no virtue, Denver v. State, at 769, and uniformity in this area seems to have diminished value due to the wide diversity of localities included in Colorado. As plaintiffs stated in their opening brief. 'Simply put, a bullet fired in Denver--whether maliciously by a criminal or negligently by a law-abiding citizen is more likely to hit something or somebody than a bullet fired in rural Colorado.' Unlike the legislation for concealed carry, Senate Bill 25 fails to set forth a comprehensive regulatory scheme that serves as uniform authority for open carry of firearms. Also, unlike transportation of concealed weapons in automobiles, it should be relatively simple for a gun owner to recall that he or she may not carry a sidearm openly in downtown Denver as is possible in rural Colorado. History is also on the side of the local ordinance. Since 1973, Denver has regulated the open carrying of firearms in public. The State has been silent on the topic until Senate Bill 25"

Hmmm. so stats show Denver has more crime than other areas of the state. I wonder if Meyer noticed that those stats were probably compiled after Denver had set in place its gun control laws. Not that I believe correlation equals causation, but obviously if Denver's rate of crime is higher than the rest of the state while Denver has stricter gun control laws, then I'd say that would make a case that Denver's gun control laws don't really help reduce the crime rate.

Now notice how Denver's brief seeks to talk about firing weapons as a reason to prohibit their possession. The argument is that a shot in a densely populated area will more likely hit someone than a shot in a sparsely populated area. I could also add that fishing in a lake will likely result in catching more fish than fishing in a bathtub. Denver has laws against discharging a firearm within the city limits. Those aren't in dispute. What is in dispute is the Denver law concerning carry & possession. I agree that there are some places where you should discharge a firearm unless the circumstances are extremely dire. I agree that laws prohibiting firing guns in certain areas are okay (for the most part - there are always exceptions). What I will argue is that carrying a weapon does not usually result in discharging one. But Denver wants to equate carrying with negligent discharge or criminal use. It doesn't mention justifiable use, as in self defense. Nor does it mention that the majority of defensive firearms uses do not involve firing shots. Unfortunately Denver was more persuasive.

& for the life of me I keep forgetting that it's illegal to carry a pistol on my hip while walking through downtown Denver. See I keep falsely assuming that the Colorado & U.S. Constitutions mean I can do that. Course I assume the framers of both documents would have included language to make it obvious that Denver does have the authority to step on a Right that existed before government & that the feds & state are forbidden from interfering with.

The judge is simply wrong: it is not correct to assume that concealed carry in a vehicle is different from open carry as a pedestrian. Nor is it remotely logical to say that Denver prohibiting open carry isn't something people would fail to know whereas they'd be fuzzy on how the law applies when they're in their car carrying concealed.

Let me try to break this down for the judge: the state & federal constitution acknowledge the right to own & carry guns. The state constitution distances itself from concealed carry, therefore open carry is the only option left. Since a Right cannot be protected if it is nonexistent, we are forced to conclude that the Colorado constitution, by its exception of concealed carry, applies to open carry implicitly. Therefore unless "Constitution Free Zone" is stamped on all the entrances to Denver it is not reasonable to conclude that a person would know Denver law trumps 2 constitutions & an inherent Right.

"The Colorado Constitution, while protecting the right to bear arms, does not specifically commit regulation of open carrying of firearms to either state or local government."

Ummm ya think maybe it's because the Right to Arms is excepted from the powers of government???? That's kinda the point behind a bill of rights - to keep government from imposing on them. So it's not a stretch to assume that since the Colorado constitution didn't say whether state or local government could infringe upon it then neither can infringe upon it.

What's even worse is that Meyer declares it an unconstitutional infringement for the state to intrude on any city or town's desire to ban open carry. I cannot begin to express my disbelief at the irony of his phrasing.

So open carry in Denver is illegal.

"Assault Weapons" & Saturday Night Specials:

Let's get one thing out in the open. The original phrase was "niggertown Saturday night special". Language is one area where the anti's have been hammering us, even to the point where they can co-opt a phrase blatantly racist in origin & have it used by everyone to further the anti's goals. Racism was a key component of early gun control, & odds are had more than a little to do with Colorado's exception of concealed carry in its constitution. The anti's don't want you to know about the racist origins of gun control, even when they push racist phrases down our throats.

Meyer makes an issue of the state not acting to preempt Denver law before now, since the two laws in question have been in effect since 1989 & 1975 respectively. That is unpersuasive to me, as the amount of time it takes to correct an injustice is not always proportional to that injustice.

Nevertheless Meyer finds both Denver laws are okay & the state can't interfere. Seems Denver has an increasing problem with "assault weapons", despite a city wide ban & having had a ten year federal ban. The Denver law touches on possession though which the federal ban didn't. In any case Meyer fell for Denver's bullshit about "assault weapons" being more dangerous than other types of weapons & them being a special problem that deserved prohibition. The affordable firearms ban was upheld as well, although without as much detail being given other than it was a local, not a state matter that seemingly touched upon sales as opposed to sales & possession.

Juveniles & Safe Storage:

Both Colorado & Denver have laws prohibiting loaning or otherwise furnishing a minor with a firearm. Colorado law has exceptions, such as when hunting with parental permission. Denver law doesn't. Denver's safe storage law has a self defense exception when it comes to minors. Again Denver argued that their prohibition was merely regulation & Meyer rightly called them on that. Meyer strikes Denver's juvenile in possession law but upholds the safe storage law.

Firearms in City Parks:

Meyer says that state law grants cities the final say over its parks & other such property. He again makes a big deal of the state not intervening since Denver passed its laws concerning firearms in parks (around 1996).

"Denver's park system is unique to it, especially with regard to its extensive system of mountain parks and parkways. Any need for uniformity is vastly outweighed by Denver's judgment that its citizens are safer without guns in the parks. There is no extraterritorial impact to this ordinance. Commuter routes typically do not traverse parklands, and it is riot an unreasonable burden for visitors to Denver to inform themselves as to restrictions on guns in parks. The State has not shown any substantial interest in requiring a municipality to open its parks to all guns, as described above, the bare interest in uniformity is unconvincing."

Now it would seem from the language used that Denver owns parks & other recreational land outside its city & county limits. If this is correct then another justification of Meyer's is factually in error:

One of the most ludicrous things I've ever seen was a sign in the Rocky Mountain National Park. I saw it after being in Colorado all of 72 hours. It had warnings about bears, mountain lions & other natural dangers. Right below these warning in much bigger print were the words "NO WEAPONS ALLOWED". Now this was due to an executive order signed by Bill Clinton making it a felony to carry firearms in a National Park, but the reasoning is just as absurd if Denver has parks outside of downtown.

Bears, mountains lions, deer, elk, moose, snakes & a few other varieties of creatures are not uncommon in Colorado. Bear & mountain lion would be the two most identifiable as dangerous, but have you ever seen a moose up close? How bout a pissed off moose? We ain't talking anything out of a Disney pic or rerun of Northern Exposure here. Bullwinkle will ruin your day. Snakes & to a lesser extent coyotes can also be a threat. & these critters don't read city limit signs & turn back. My first year here there was a bear that wandered about 10 blocks from where I was living at the time - & I lived ten minutes from downtown Denver.

So the state does have an interest in keeping bans on personal arms from being implemented in parks. Ya see there just aren't enough park rangers to respond instantaneously in the unlikely but entirely possible event that an animal attacks someone. The state, being a representative of the people (in theory at least) has an interest in not encumbering self defense from predators of the no legged, two legged or four legged variety. Aside from the animal danger where would you plan to rob, rape or kill; a place where the people have guns, or a place when the government has graciously disarmed your prey for you?

& did I mention that a ban on carrying arms runs afoul of two constitutions?

But now back to the ludicrous: Meyer upheld Denver's law banning openly carried firearms in parks, but said that Denver could not ban concealed carry (with the appropriate permission slip) in parks.

The state dropped its arguments against several Denver laws because the state conceded that they did not conflict with state law. Aside from discharging firearms & brandishing there were a few that seemed troubling on the surface, though I admit I haven't delved into the particulars yet. One regards identification & records of weapons sales. The other is a presumption of possession concerning a firearm found in a vehicle. As I said I haven't had time to explore those provisions yet so if any of you have then feel free to leave a comment or e-mail.

Another thing I haven't done as of yet is to secure copies of the briefs from both sides. I really have trouble imagining the state not being able to make the more persuasive argument, unless of course the state approached it from a non-Rights angle.

In other words if the state argued that the Right to Arms could be breached but only by the state then the ground was shaky. If the state would have argued that the Right to Arms is something excepted out of the powers of government then it would have had much more stable ground to work with. Of course this would have negated the state's justification for some of its gun control laws which could be a reason that tactic wasn't used.

If the state's arguments weakly defended or ignored a Rights based approach then I'd point to this as a prime example of compromising or taking a moderate approach being harmful to the cause. We do not gain back ground by incrementalism: we gain it back by direct & persuasive actions.

Meyer had a tough case I'll admit. Weeding through the home rule provisions & the relevant case law is not something one does for fun on a weekend (unless you're really really twisted). But most of his reasoning was based on a faulty premise: that the Right to Arms can be trampled on. Another mistake in reasoning was predominate: that gun control works.

In effect Meyer's conclusion would make it equally possible for Denver to outlaw a certain religion within its city & county limits. Yes it's true that Meyer only said the Right to Arms was not absolute, but if possessing the means of self defense may be restricted at a government’s whim, then how hard would it be to apply that reasoning to religious practice? or printing & reading material? Or any number of things we regard as Rights that government should not touch upon?

I'm a bit calmer than I was when I initially wrote about Meyer's decision. So I can now reflect on my words & say that Denver can go straight to hell without being accused of being rash about it.

& yes; I'm still violating Denver law anytime I have need of passing through its limits. I try to minimize the need for such but some things are unavoidable. One thing that is avoidable is that I haven't spent a damn dime inside Denver since I found out about Meyer's bitchslap of my Rights. I can't say for certain that I'll always be able to keep from spending inside Denver, but I can attest that as cheap a bastard as I am it shouldn't be that difficult.

One thing I would like to see is gun shops & manufacturers refusing to do business with the Denver P.D. There's one store that I regretfully won't be able to purchase anything from as it's within the city limits, but I do intend on stopping by there & explaining why & asking if they'd consider suspending all sales to Denver P.D. employees until such asinine laws are repealed. In the meantime there are other gun stores (though I will miss the one in question). In fact, if the assure me they will stop any & all sales to the city & county of Denver & its employees while these laws are in place I probably could bring myself to trade with them again.

So there you have it: with a CCW permit you can carry in Denver. You can't carry openly. You can carry concealed in your car with or without a permit. You can't carry openly in parks, but you can with a permit. You can't possess "assault weapons" (unless you're just passing through) or sell or buy "...Saturday Night Specials" within the city of Denver. You can loan your kid your gun for target practice but you have to lock it up before & after.

In Denver, according to Meyer & the city's administration, you do not have a Right to Arms; you have a privilege. It can pass almost any laws it wants to, excepting ones that interfere with the states prerogative to restrict your privilege to Arms.

Arvada, Thornton, Broomfield, Lakewood, Edgewater, Wheat Ridge, Littleton, & Westminster are but just a few towns that are minutes away from Denver (traveling westward that is). They all have fine shops, restaurants & other attractions that will make it less burdensome to spend your money outside of Denver. If you need a particular service located within Denver e-mail me & I'll try to find an alternate for you so your tax money doesn't go to a town that disrespects your Rights.

Again, until sanity prevails either in the courts or the city council, don't patronize any business inside Denver.

Posted by Publicola at November 17, 2004 02:45 AM

Rob's Guns on South Parker?

Posted by: MPW at December 13, 2004 05:03 AM

nope. Scotty's on Colfax. & it's not an easy thing to do either.

Posted by: Publicola at December 16, 2004 05:30 AM
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