Civil Liberties, Constitutional Law, Featured, Gold Dome, Right To Arms

Ruling stretches law and fact to uphold Colorado gun control legislation

Federal Judge Marcia S. Krieger (Chief Judge, 10th Circuit District Court) seems to have stretched both facts and law in ruling against the individual rights of Colorado citizens and in favor of government restrictions and control in finding the 2013 Colorado “gun ban” legislation constitutional.

Judge Krieger’s 50-page ruling selectively omits relevant facts and applies a strained interpretation of “significant” or “substantial” infringements of rights as well as what constitutes “substantially related to an important government objective” in upholding the legislation.

The opinion’s prefatory background noted,

A number of claims were dismissed prior to trial. The issues at trial were: (1) whether § 18-12-302 and § 18-12-112 violate the Second Amendment of the United States Constitution, which guarantees the people’s right to “keep and bear arms;” (2) whether the phrase “continuous possession” in the grandfather clause of § 18-12-302 is so vague as to violate the people’s right to Due Process under the Fourteenth Amendment of the United States Constitution; and (3) whether the statutes violate Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132.

Krieger found that none of the issues met or surpassed the threshold of unconstitutionality.

I. Standing to Sue the State in Challenging Constitutionality

The Colorado Attorney General (John Suthers) on behalf of the named defendant (Colorado’s Governor John Hickenlooper) and the State of Colorado challenged the right of the plaintiffs to sue the state (“standing”) to overturn the legislation at all. Standing is an important issue in law:

To have standing, a plaintiff must show that he, she, or it has been or is being injured, that the challenged law causes the injury, and that the lawsuit will provide relief for the injury. [Ruling at 7]

Normally, standing to sue arises only after an actual injury has been sustained, but a constitutional challenge to a law can be brought in advance

if it can be shown that: (1) the plaintiff genuinely intends to engage in a course of conduct that is constitutionally protected but is proscribed by the challenged statute, and (2) if the plaintiff engaged in such conduct, there exists “a credible threat” that the plaintiff would be prosecuted under the statute. [Ruling at 8]

Judge Krieger ruled that none of the individual plaintiffs (Colorado Sheriffs and other named individuals in the lawsuit) have standing to challenge either the magazine ban legislation (§ 18-12-302 C.R.S.) or the background checks on private sales legislation (§ 18-12-112) and that many (even most – but not all) of the businesses and organizations filing suit also lacked standing. However, since at least one associative entity (Women for Concealed Carry) was held to have standing, the court did not dismiss the suit entirely and did address the claims on the merits.

II. Analytical Framework for 2nd Amendment Challenges

Judge Krieger asserts that

Until 2008, most courts did not construe the Second Amendment to protect an individual’s right to possess and use firearms. Courts were guided by the Supreme Court’s decision in United States v. Miller, 307 U.S. 174, 179 (1939), which held that a right protected by the Second Amendment required “some reasonable relationship to the preservation or efficiency of a well regulated militia.” [Ruling at 20]

Although admitting that the previous collectivist interpretation of the 2nd Amendment was superseded by the 2008 Heller case, Judge Krieger clearly and expressly retained sympathy for the view that government restrictions of the individual “right to keep and bear arms” are presupposed to be valid and constitutional unless explicitly excepted – turning the notion of “rights” on its head.

Judge Krieger applied a “two-step approach” in determining the legislation’s constitutionality:

  • Does the legislation “burden a right or conduct protected by the Second Amendment?”
  • If it does burden a right or conduct, how much?

More specifically,

As part of this determination, the Court may consider whether the challenged law impacts firearms or firearm use, whether the affected firearms are currently in “common use,” whether the affected firearms are used for self-defense inside or outside of the home, and whether the restriction is akin to restrictions that were historically imposed and customarily accepted. [Ruling at 22]


If the challenged law burdens conduct protected by the Second Amendment, then a court must determine what level of constitutional scrutiny to apply. [Ruling at 22]

The “levels of constitutional scrutiny” are a legal construct that, essentially, allows a court to decide just how important your rights are versus a government claim of a “need” to impose legislation or policy mandates on the populace. Basically, the construct allows the courts to determine that “some rights are more equal than others” – and, essentially, that some “rights” must give way to government power.

The three levels generally recognized (with some variations in-between) are

  • “Rational Basis” – basically, if the government can come up with some reason for the legislation, your rights are forfeit
  • “Intermediate Scrutiny” – “which applies to laws that infringe upon, but do not substantially burden, fundamental individual rights” [Ruling at 23]
  • “Strict Scrutiny” – applying to laws “that substantially burden fundamental individual rights”

Note that the courts get to determine what the definition of “substantially burden” is on a case-by-case basis, per the whim of the judge.

III. Applying the Constitutionality Test to the Magazine-Ban Bill

Although Judge Krieger grants as to the fact that the Mag-Ban Bill “burdens the right of individuals to possess commonly-used weapons, such as handguns, for self-defense” [Ruling at 26], she spends a half-dozen pages tortuously arguing that the legislation does not impose a “severe” burden on that right, in order to justify applying the “intermediate scrutiny” test. At that point, it’s a foregone conclusion.

For § 18-12-302 to survive intermediate scrutiny, Colorado must prove that its objective in enacting § 18-12-302 was “important” — that is, that that the statute was based on “reasoned analysis,” Concrete Works of Colo., Inc. v. City and Cnty. of Denver, 321 F.3d 950, 959 (10th Cir. 2003) — and that the provisions of § 18-12-302 are “substantially related” to its stated objective. [Ruling at 32]

The judge spent the next four pages arguing that

the evidence establishes both an important governmental policy and a substantial relationship between that policy and the restriction of § 18-12-302 [Ruling at 36]

in order to find the legislation constitutional.

IV. Applying the Constitutionality Test to the “Background Checks on Private Sales” Bill

Similarly, Judge Krieger grudging concedes that” the right to “keep and bear” firearms implies some protection of the right to acquire firearms in the first place” before contending that “the burden imposed on the right is no more severe than the law already provides with regard to firearm sales” in commercial transactions. [Ruling at 37]

This contention flies in the face of the facts and evidence presented at trial and in documents filed with the court.

Despite the evidence that obtaining background checks for private sales and transfers – particularly outside of municipalities with multiple firearms dealers able to process the background checks – does impose a substantial burden, the judge found “that § 18-12-112 does not severely impact the Second Amendment right” to obtain arms, in order to (once again) apply the “intermediate scrutiny” standard. Again, the conclusion is foregone:

Accordingly, the Court concludes that § 18-12-112 is constitutionally permissible under the Second Amendment. [Ruling at 41]

V. Vagueness Challenge

The “continuous possession” clause of the prior ownership exception in the Mag-Ban Bill (HB13-1224) was also challenged as being unconstitutionally vague, and subject to uneven, arbitrary enforcement “based on the personal predilections of individual law enforcement officers or jurisdictions” (which is an additional violation of the due process clause under the 14th Amendment).

Judge Krieger argues that although “it is possible that the “continuous possession” requirement may not be clear in every application” that such lack of clarity is not enough to “render the statute unconstitutionally vague.” [Ruling at 43, 44]

She then cites as an example that “an owner who loaned out his or her magazine to another after July 1, 2013 would clearly not have maintained “possession” of it” – even though that directly contradicts the “technical guidance” on the “continuous possession” language promulgated by the governor and attorney general to “clarify” the legislation.

Ironically, Judge Krieger later relies on the existence of said “technical guidance” as a factor in “evaluating a facial challenge to a Colorado law” stating that a federal court must

“consider any limiting construction that a Colorado court or enforcement agency has proffered.” [Ruling at 45]

Notwithstanding Judge Krieger’s self-contradictory citation of facts and evidence, she holds that since

the Plaintiffs have failed to sustain their burden of establishing that § 18-12-302(2)(a) is unconstitutionally vague in all applications, the Court finds the statute permissible under the Fourteenth Amendment to the United States Constitution. [Ruling at 46] (emphasis added)

Finally, Judge Krieger ruled that the claims of violating the Americans with Disabilities Act (ADA) were not substantiated because the legislation did not restrict “a government service, program, or activity” nor did the evidence prove a “disparate impact” to statistically significant numbers of people.

Thus, the court found in favor of Defendant John Hickenlooper and the state of Colorado on all counts, and held the legislation to be “compliant with the provisions of the Second and Fourteenth Amendments to the United States Constitution.” [Ruling at 50]


The 2013 Colorado legislation – both HB13-1224, banning certain “ammunition feeding devices” and HB13-1229, controlling private sales or transfers of firearms – clearly “infringes” upon individual rights secured and protected under the 2nd and 14th Amendments to the United States Constitution. In addition, both pieces of legislation are practically unenforceable, constitutionally vague, and lend themselves to uneven, arbitrary enforcement “based on the personal predilections of individual law enforcement officers or jurisdictions” (an additional violation of the due process clause under the 14th Amendment). Any court with fealty to the rule of law (or constitutional precedent) would have found them to be in violation of the Constitution (2nd and 14th Amendments). Unfortunately, Krieger’s ruling appears to have more fealty to the rule of government and public passions than to the rule of law and individual rights.

The Colorado Sheriffs and other plaintiffs have already signaled their intent to appeal Krieger’s ruling to the 10th Circuit Court of Appeals and “if necessary all the way to the Supreme Court” of the United States.

Read Judge Marcia Krieger’s 50-page Ruling here:

Matt Arnold is director of Clear the Bench Colorado and the Colorado Courts Examiner at


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