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June 13, 2013
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Sheriffs explain suit against gun laws during Glenwood Springs presentation

GLENWOOD SPRINGS — The road show staged by some of the plaintiffs in a lawsuit seeking to overturn two of the gun-control laws passed by the Colorado Legislature this year made a stop here Wednesday night.

Four of the 54 Colorado county sheriffs who are plaintiffs in the suit — including Garfield County Sheriff Lou Vallario — drew enthusiastic responses from the crowd in the Devereux Room at the Hotel Colorado. Officials with the Independence Institute, the Denver area think tank that sponsored the event and one of the plaintiffs in the lawsuit, said 125 $5 tickets had been presold and dozens more were purchased at the door.

Among local officials in attendance were District 57 state Rep. Rob Rankin, R-Carbondale, Garfield County Commissioner John Martin, and District 8 state Sen. Randy Baumgardner, R-Cowdrey. In the spirit of the evening, Baumgardner was wearing a holstered semi-automatic pistol in plain view on his belt.

“Gun owners ... for the first time are beginning to push back,” said Independence Institute President John Caldara in opening remarks, to raucous applause.

At issue in the lawsuit are House Bill 1224, which limits gun magazines to 15 rounds, and HB 1229, which mandates background checks for all gun transfers. Both bills were signed into law by Gov. John Hickenlooper and are set to take effect July 1.

Can’t walk away

“It simply became clear ... they simply went too far into the rights of citizens,” said Justin Smith, Larimer County sheriff, while explaining why he and his fellow sheriffs filed the lawsuit.

He said he takes his oath of office seriously, particularly the part about protecting law abiding citizens and upholding the U.S. Constitution.

“How can I walk away?” he asked. “We had no other choice ... If not us, who? If not now, when?”

“We’re doing it for the people,” said Weld County Sheriff John Cooke, who gained national notoriety earlier this year when he declared he would not enforce the laws because he thinks they are unconstitutional and too vague.

Among other considerations, he said his stance is a matter of priorities. His priority is putting away criminals, he said, not harassing law-abiding citizens.

Because of his stand, the Denver Post labeled him a “rogue sheriff” in an editorial. Holding up a copy of the editorial, he said he wears the label “like a badge of honor.”

Taking our rights

“What we’re looking at here is a slow, methodical, intentional taking away of our rights,” said Vallario, who received two standing ovations.

Vallario said gun-control backers are the same politicians who are undermining other constitutional rights. He used the analogy of a neighbor building a fence two feet into someone else’s yard, then moving it two more feet, again and again, encroaching a little at a time but inexorably taking over the property.

“I’ve dug in my heels and I’m not going to let them take that two feet of property,” he said.

Mainstream law

David Kopel, Independence Institute research director, adjunct professor of Advanced Constitutional Law at Denver University’s Sturm College of Law and lawyer for the sheriffs in the lawsuit, outlined the constitutional arguments in the lawsuit.

He said plaintiffs in the suit are not saying there cannot be gun-control laws, just that these two laws “go over the line.” He cited a landmark 2008 U.S. Supreme Court case District of Columbia v. Heller, in which the court ruled that the state cannot outlaw individual ownership of firearms “typical” of those owned by law-abiding citizens and used for lawful purposes.

HB 1224 does just that, Kopel argued, because many firearms with magazines that hold more than 15 rounds fall into that “typical” category, and law enforcement personnel use them routinely to protect the lives of law-abiding people.

“All law-abiding citizens should have that same choice,” he said, saying this case is about mainstream American law.

As for HB 1229, known commonly as the universal background check law, Kopel cited several instances he said would constitute violations under the law. Lending a hunting rifle to a friend, for instance, for the duration of a typical hunt would constitute a “transfer” under the law and therefore would require a background check. That, he said, is an unconstitutional infringement.

Guidance on the laws

Many opponents of the magazine restrictions have cited a provision in the law they say could outlaw lower-capacity magazines simply because they can be altered to carry more than 15 rounds since they have a removable base. That vagueness is among the provisions cited in a Wednesday court filing seeking a preliminary injunction, Kopel said.

The injunction seeks to prevent the laws from being implemented on July 1.

Colorado Attorney General John Suthers issued a “technical guidance” statement about the laws on May 16. In it, he said magazine features “must be judged objectively” and magazines that hold 15 rounds or fewer can’t be defined as “large capacity” simply because they can be modified to include more.

Earlier this week, Gov. Hickenlooper made a court filing asking the court to limit interpretation of the magazine law to Suthers’ guidance statement.

Kopel said Suthers’ guidance is no more clear than the law, since it does not enumerate specific characteristics of magazines that would be legal or illegal.

“It was so vague that citizens don’t know what they can or can’t do,” he said.

Another provision of the law, one requiring “continuous possession,” is also frequently cited by opponents as being too vague to be enforceable. Suthers’ guidance addresses the issue and clearly makes it legal for someone to let another person handle their legally “grandfathered” high capacity magazine firearm, “so long as he or she remains in the owner’s physical presence.”

Kopel said that means if someone were to lend a high-capacity firearm to his or her spouse and then leave town or an owner left the gun and magazine with a gunsmith, “by the attorney general’s guidance, those are crimes. ... What is then forbidden, is clearly lawful under the Second Amendment.”

Impetus for the laws

Colorado lawmakers passed the restrictions in reaction to the shooting at an Aurora movie theater last summer and the December 2012 killings at Sandy Hook Elementary School in Newtown, Conn. Today is the six-month anniversary of the Sandy Hook shootings.

While the sheriffs filed suit over the laws, the Colorado Association of Chiefs of Police has issued statements in support of the laws. According to an Associated Press report in May, the chiefs said the measures were “common-sense approaches” to protect the public “while not taking guns from law-abiding citizens in any way.”

The sheriffs and Independence Institute are giving presentations similar to Wednesday night’s throughout the state as fundraisers to help defray the costs of the lawsuit, which they point out is not being funded with any taxpayer dollars.


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The Post Independent Updated Jun 13, 2013 10:48PM Published Jun 14, 2013 01:51PM Copyright 2013 The Post Independent. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.