As we all learn in grade school, the legislature is supposed to craft the laws. But Colorado Democrats did such a poor job of drafting their bill banning the transfer of gun magazines holding more than 15 rounds that the state’s attorney general, John Suthers, had to step in to declare the meaning of the legislation.
On July 1 the magazine ban, Colorado House Bill 1224, went into effect. On July 10, in response to litigation by Colorado sheriffs, Suthers agreed to “redraft guidance” (in the Denver Post’s words) specifying what the legislation means.
A media release from Suthers’s office explains the attorney general’s position:
At issue was what it means for a magazine to be “designed to be readily convertible” to one in excess of 15 rounds and what it means for a weapon to be in the “continuous possession” of its owner. Specifically, the additional guidance is that:
Magazines with a capacity of 15 or fewer rounds are not large capacity magazines as defined in HB 13-1224 whether or not they have removable base plates. These baseplates themselves do not enable the magazines to be expanded, and they serve functions aside from expansion—notable, they allow the magazines to be cleaned and repaired. To actually convert them to higher capacity, one must purchase additional equipment or permanently alter their operation mechanically. Unless so altered, they are not prohibited.
The phrase “continuous” possession in HB 13-1224 shall be afforded its reasonable, every-day interpretation, which is the fact of having or holding property in one’s power or the exercise of dominion over property, that is uninterrupted in time, sequence, substance or extent. “Continuous possession” does not require a large-capacity magazine owner to maintain literally continuous physical possession of the magazine. “Continuous possession” is only lost by a voluntary relinquishment of dominion and control
It is, of course, debatable whether a “reasonable, every-day interpretation” of the phrase “continuous possession” means that you need not “literally” continuously possess a magazine. Absent the attorney general’s pronouncement, I would have thought it quite reasonable to think that “continuous possession” means, well, continuous possession. But both sides of the dispute regard Suthers’s reading as a convenient legal contrivance.
Under Suthers’s pronouncement, you maintain “continuous possession” of a magazine even if you lend it to your sister for a week or if a criminal steals it from you (as examples). And if you lend it to her for a year or for ten years? Apparently prosecutors will still need to sort out the finer meaning of the term “dominion” as they prosecute peaceable gun owners under the statute. But at least gun owners now have some assurance that they will not be prosecuted for short-term loans of the magazines in question.
Let’s back up and see why the legislation was drafted so poorly in the first place.
The legislation was never intended primarily to create good law for Coloradans or to improve public safety here; instead, it was intended to spearhead a national gun control campaign orchestrated by the Obama administration and by New York Mayor Michael Bloomberg. That’s why Joseph Biden, the nations’ vice president, personally called Colorado legislators to politically threaten and cajole them into passing gun legislation; and that’s why Bloomberg personally called Colorado’s governor, John Hickenlooper, during the debates over the gun laws.
From the standpoint of these outside interests, the fact that the bill was badly written—the fact that it potentially created legal nightmares for law enforcement and gun owners alike—is merely an irrelevant complication. These outside interests are only sorry that the Colorado legislation was not superseded by even more severe federal legislation.
Notably, Suthers’s interpretation of HB-1224 is totally different from the interpretation of it by the bill’s own sponsor, State Representative Rhonda Fields. After Fields introduced her bill, the Independence Institute’s Jon Caldara demonstrated that most standard fifteen-round magazines can be converted to a larger magazine simply by removing the base plate and adding an extender. So did a removable base plate outlaw any gun magazine?
Fields had not even considered the ambiguity of her bill’s language by the time her bill reached the governor’s desk. As 9Newsreported, “Fields says there was no discussion about the extenders while drafting the bill.” Fields confirmed in the video interview, “I’m just hearing about that right now.”
Field’s ignorance of the subject matter of her own bill, however, did not stop her from making a snap interpretation of its meaning while talking with 9News. The news station asked her, “So you’re viewing this as a relatively broad interpretation of that clause—if it’s capable of having its capacity increased at all above fifteen, it’s out.” Fields replied, “It would be illegal.”
Now, Suthers says, Fields was wrong about the meaning of her own bill.
Consider the implications of the legislature passing a sloppily drafted, ambiguous bill that its own sponsor did not even understand. A statute is not merely a statement of legislative desire; it imposes criminal penalties. HB-1224 specifies that a peaceable gun owner “who sells, transfers, or possesses a large-capacity magazine commits a Class 2 misdemeanor” (aside from the “grandfather” clause and a few other exceptions), and for a second offense it’s a Class 1 misdemeanor. A Class 2 misdemeanor carries a maximum jail sentence of a year imprisonment, while a Class 1 misdemeanors carries a maximum sentence of eighteen months imprisonment.
Spurred on by Biden and Bloomberg, the majority of Colorado’s Democrats imposed a bill they knew to be poorly drafted, a bill that threatened to lock peaceable people in a metal cage for months on end, depending on the legal interpretation of the ambiguous phrases “readily convertible” and “continuous possession.”
Consider a few of the many potential problems with the legislation’s “continuous possession” clause prior to Suthers’s July 10 pronouncement:
* Literally interpreted, one loses “continuous possession” of a magazine by allowing a friend to shoot a round with it or when passing it to a gunsmith for routine maintenance. However, in opposition to the literal meaning of the legislation, Hickenlooper in signing the bill opined that, under his interpretation, “Responsible maintenance and handling of magazines obviously contemplates that gun owners may allow others to physically hold and handle them under appropriate circumstances.”
* If someone in the military leaves “firearms and their associated [‘large-capacity’] magazines with a spouse when he or she is called into service away from home,” than the soldier loses “continuous possession” of the magazines, under the phrase’s literal meaning.
* If a criminal burgles a woman’s home and steals her guns and “large-capacity” magazines, then, by a literal reading, she has lost “continuous possession” of those magazines. By the literal meaning of the law, the police officer who recovers the magazines may not legally return them to her. (Sheriff Justin Smith of Larimer County suggested this scenario on his Facebook page.)
* If a drunk driver strikes your car while you are driving, and you have a “large-capacity” magazine in the car that a police officer safeguards while you are in the hospital, then you have lost “continuous possession” of the magazine, according to a literal interpretation. (Smith suggested this scenario as well.)
The fact that Suthers has rejected the literal interpretation of the law is a double-edged sword. On one hand, it gives Colorado’s gun owners some assurance that they will not be prosecuted for normal activities associated with gun ownership. On the other hand, it reassures legislators and the governor that they need not worry about doing their jobs in drafting and signing clear legislation, for the attorney general will step in to save them from their recklessness.
Of course the fact that, thanks to Suthers, the bill now has a stable, non-insane (because non-literal) meaning, does not make the magazine ban good legislation. Even on the most narrow interpretation of the magazine statute, the measure violates the rights of peaceable gun owners to self-defense, to peaceable trade, and to private property.
The law creates a legal barrier to selling, giving away, or willing one’s property to others, and this constitutes a legal deprivation of property (whether or not the courts view it as a violation of the Fifth Amendment).
More fundamentally, peaceable gun owners have a right (whether or not the government recognizes that right) to purchase, transfer, and possess gun magazines containing more than fifteen rounds. So-called “large-capacity magazines”—and in fact many handguns come factory standard with magazines up to 20 rounds, while many rifles come factory standard with magazines up to 30 rounds—are useful in a variety of self-defense scenarios, ranging from home defense against multiple intruders to violent mass riots.
In short, the magazine ban threatens to lock peaceable people in a metal cage for months on end, for the “crime” of exercising their fundamental, inalienable human rights. For the sake of justice, let us hope that the lawsuit brought by Colorado sheriffs against the statute will prevail.
Ari Armstrong is editor of the Free Colorado website