Boulder’s gun ban ordinance struck down; state preemption, constitutional rights prevail

BOULDER–A Boulder District Court judge has struck down the City of Boulder’s anti-gun ordinance that made the possession, sale or transfer of semi-automatic, magazine-fed sporting rifles, pistols and ammunition magazines that can hold more than 10 rounds illegal.

In a March 12 ruling Judge Andrew Hartman held that Boulder’s “Assault Weapons Possession, Sale, and Transfer Ban” ordinance is illegal under Colorado’s statutory ban on local laws, ordinances or regulations that “prohibits the sale, purchase, or possession of a firearm that a person may lawfully sell, purchase, or possess under state or federal law.”

Boulder residents Robert Chambers and James Jones sued the city on June 14, 2018, just days after the Boulder City Council enacted the gun ban.

Judge Hartman granted a request for summary judgment and issued a permanent injunction against Boulder’s enforcement of the ordinance.

“The Court has determined that only Colorado state (or federal) law can prohibit the possession, sale, and transfer of assault weapons and large capacity magazines,” says Hartman. “…the State of Colorado has passed laws that are effectively a scheme preempting local governments from enacting municipal firearms and magazine possession ordinances.”

The Boulder gun ban

In the ordinance the city defined “assault weapon” as “All semi-automatic center-fire rifles that have the capacity to accept a detachable magazine and that have any of the following characteristics,” including a “pistol grip or thumbhole stock; a folding or telescoping stock; or any protruding grip or other device to allow the weapon to be stabilized with the non-trigger hand.”

Also included were semi-automatic shotguns and handguns that use a detachable magazine and had one or more similar cosmetic features and all “ammunition feeding device with the capacity to accept more than 10 rounds,” “bump stocks” or other “trigger-activating device” that “increases the rate of fire of that firearm.”

Standing to sue

Hartman held that the plaintiffs had standing to sue the city because “Plaintiffs are presently being injured by sale and transfer ban.” Boulder claimed that the plaintiffs had not “demonstrated that they plan to imminently sell, transfer, or acquire assault weapons or LCMs,” but the court rejected this argument, citing more than a half-dozen Colorado cases holding that a person doesn’t have to wait to be arrested before having sufficient standing to challenge a statute or ordinance when it affects a legally protected interest.

Hartman links the “legally cognizable interest, namely, their right to possess firearms in defense of home, person, and property” to the 2nd Amendment to the U.S. Constitution and Article 2, Section 13 of the Colorado Constitution, which says, “The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question.”

State preemption

Hartman dismissed the claim that as a home rule city, Boulder could regulate firearms more strictly than the state does because such weapons “pose a special danger to a demographically unique Boulder.”

Boulder argued that a 2006 Colorado Supreme Court case upholding a Denver District Court ruling that Denver’s home-rule power to ban firearms was a reasonable exercise of the city’s police power gave Boulder the right to do so also.

But Hartman said that the Denver case was “non binding” and has been overruled by two state supreme court cases involving local control of oil and gas operations that clarified the relationship between local governments and the state regarding state preemption laws.

The crux of the issue is whether the matter is one of statewide, local or mixed state and local concern.

Hartman ruled that because the state comprehensively regulates firearms, including by enacting the preemption statute, the matter is one of mixed state and local concern, therefore the state preemption law prevails.

Whether the City of Boulder decides to appeal the ruling to the Colorado Supreme Court has not yet been determined, but for now the ordinance is void.

Constitutional rights

Although this particular case revolves around home rule city powers and state preemption authority, there are deeper constitutional issues involved that are pending in a separate federal lawsuit against the Boulder gun ban.

Since 1994, the state supreme court has used a “reasonableness” standard of review when it comes to the rights of citizens to keep and bear arms enunciated in the state Constitution, which is why Denver is still allowed to ban open carry and ban certain firearms, including so-called “assault weapons” under its home rule authority.

However, the legal situation nationally has changed dramatically in favor of the right to keep and bear arms being a fundamental right, like the right to free speech, which means the “strict scrutiny” test for constitutionality could apply in some cases.

The U.S. Supreme Court 2008 ruling in District of Columbia v. Heller, overturning D.C.’s complete ban on handguns held that the 2nd Amendment not only protects an individual right to keep and bear arms unrelated to militia service, but also to keep and bear those arms “in common use at the time for lawful purposes.”

In applying the 2nd Amendment to the states through the 14th Amendment for the first time, the U.S. Supreme Court tipped the balance in favor of gun owners when it comes to state and local gun regulations.

Recognizing the new balance, Jon Caldara, president of the Independence Institute, along the Boulder Rifle Club, General Commerce, LLC, Tyler Faye and Mark Ringer sued Boulder over the ban in federal court in 2018 as well, making 39 claims related to state and federal law and invoking the 2nd, 4th, 5th and 14th Amendments, among other claims.

That case has been on hold under federal rules of procedure until the state law issues over home rule versus state preemption were settled.