Colorado U.S. District Court Issues Restraining Order Against Gun And Magazine Ban
BY Herschel Smith2 years, 3 months ago
Today U.S. District Judge Raymond P. Moore issued a temporary restraining order against the ban on so-called “assault weapons” recently enacted by the town of Superior, Colorado, in Boulder County. The case is Rocky Mountain Gun Owners v. Superior.
Lead attorney for the plaintiffs was Barry Arrington, one of Colorado’s top lawyers on education law, and now the victor in a major Second Amendment case. Arrington previously served in the Colorado House of Representatives, and as a trustee of the Independence Institute, where I work.
Judge Moore formerly was a corporate lawyer (Davis, Graham and Stubbs, Denver), and then head Federal Public Defender for Colo. and Wyoming. He was appointed to the bench by President Obama in 2013, and confirmed unanimously.
Like several other towns in Boulder County, Superior recently outlawed semiautomatic centerfire rifles that have at least one supposedly bad characteristic, such as an adjustable stock; various semiautomatic shotguns; various semiautomatic handguns; and magazines with a capacity of over 10 rounds.
It was obvious that such arms are “commonly used by law-abiding citizens for lawful purposes,” which is the Supreme Court’s rule from District of Columbia v. Heller (2008) for which arms are protected by the Second Amendment. First, the Colorado Attorney General and plaintiffs in an earlier case challenging the state of Colorado’s ban on magazines over 15 rounds had so stipulated. Colorado Outfitters Ass’n v. Hickenlooper, 24 F. Supp. 3d 1050, 1068 (D. Colo. 2014), vacated in part on other grounds and remanded, 823 F.3d 537 (10th Cir. 2016). (I represented 55 Colorado Sheriff plaintiffs in the case, which ended up with the 10th Circuit declaring that neither the Sheriffs nor the many other individual and organizational plaintiffs had standing.) Commonality was also found in the undisputed facts set forth in Fourth Circuit Judge Traxler’s dissenting opinion in Kolbe v. Hogan, 849 F.3d 114, 153-55 (4th Cir. 2017). The opinions of many other Circuit Courts provide additional, irrefutable proof of commonality; the banned firearms number in the millions, at least, and the banned magazines comprise over half of all magazines.
Pursuant to the Supreme Court’s recent decision in New York State Rifle & Pistol Association v. Bruen, courts are supposed to decide Second Amendment cases on text, history, and tradition. Judge may not decide based on their own opinions about good policy, nor should they defer to legislative policy judgements. The policy balancing was already conducted by the American people when they adopted the Second Amendment.
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The Colorado plaintiffs also challenged Superior’s ban on open carry of handguns. Judge Moore denied the TRO motion against the open carry ban. As he accurately stated, Bruen affirms the right to bear arms, but also allows governments to decide whether the mode of carry shall be open or concealed. Since 2003 in Colorado, concealed carry permits have been available to adults with safety training who pass a fingerprint-based background check. A system that bans open carry while allowing concealed carry does not violate the Second Amendment.
At least one aspect of the ruling was correct. All the judge can do is follow Bruen, and that decision allowed for bans on mode of carry as long as some mode of carry was allowed.
Of course, I disagree with that part of it as you know.
On July 25, 2022 at 3:55 am, Joe Blow said:
Shall
Not
Be
Infringed
Plain as the nose on my face… every other conversation is a waste of effort and time, and hurts your argument. Don’t expend your resources debating anything less, as they all amount to an infringement on your basic right. Do not give an inch thinking you will gain a foot… hows that worked so far?
On July 25, 2022 at 8:40 am, Rick said:
Would then concealed carry provide that a long gun be carried within a case in common carriage while outside the home? If not, then such a ban would indeed infringe upon Bruen, et al, and most certainly upon original interpretation of the 2A.
On July 25, 2022 at 8:47 am, Rick said:
Further, allowing local jurisdictions to prohibit the mode of carriage, i.e., prohibition of open carry, this would constitute a de facto ban on firearms which could not be readily concealed.
Allowing the only mode for carriage to be concealed carriage, a permit first be acquired, renders the right to become a privilege. That’s a problem.
On July 25, 2022 at 10:56 am, MTHead said:
Gosh, I thought the 2A said the right to keep and BEAR arms. Shall not be infringed?
So ain’t telling you how your NOT allowed to bear arms an infringement?
Or telling you, you can’t bear arms because you didn’t get government permission to bear them the way they want you to????
Thank God I’m simple!