DENVER–Governor Polis signed the recently passed “Safe Storage of Firearms” bill into law April 19. The new law imposes criminal penalties on gun owners who fail to store their firearms “in a locked gun safe or other secure container or in a manner that a reasonable person would believe to be secure” from unauthorized access. But at least one law professor and Second Amendment expert sees potential constitutional issues with the law, noting it may well run afoul of a landmark U.S. Supreme Court decision affirming the right to arms.
Creating new criminals
The new law makes “unlawful storage of a firearm” a class 2 misdemeanor that carries a maximum penalty of 364 days in jail and/or a $1,000 fine if a gun owner “fails to responsibly and securely store a firearm…upon any premises that the person owns or controls and the person knows or reasonably should know” that a juvenile can gain access without permission from a parent or guardian or that “a resident of the premises is ineligible to possess a firearm under state or federal law.”
The parents or guardian of the juvenile can give the juvenile permission to gain access to a firearm, both in their own home or in some other premises like that of a friend or family member.
But the burden is placed on the gun owner to ensure that the juvenile has that permission.
The law provides an affirmative defense to a criminal charge if the juvenile “gained possession of, and used, the firearm for the purposes of” lawful self-defense, defense of another, defense against an intruder under Colorado’s Castle Doctrine law or “in defense of livestock.” (Emphasis added)
An affirmative defense means that a gun owner arrested and charged under the law must wait until trial to invoke the defense and potentially have the charges dismissed.
The other problem with the affirmative defense is that the gun owner’s culpability depends on whether the juvenile acted within the law, something the owner may have little or no control over, and which he must prove to the court to be absolved of the crime.
Likewise, the safe storage requirement imposes a criminal penalty on the gun owner if a disqualified resident commits a felony by taking possession of one of the owner’s unsecured firearms. Ordinarily people are not held criminally liable for the unknown criminal acts of others they live with.
The law also specifies the way a firearm must be stored and gives some examples of acceptable devices, including gun safes that slow access in an emergency and locks that make the gun inoperable.
There is an exemption if the owner carries it or is in proximity “as if the person carried the firearm on his or her person.”
It also makes it a criminal offense for a licensed gun dealer to fail to provide “a locking device capable of securing the firearm” with each gun sold “or otherwise transferred.” This means that a person who leaves a gun with a gun dealer for gun smithing work must be given a locking device when he picks it up, even if he already has one at home.
According to Don Kilmer, a practicing Second Amendment and constitutional torts attorney, and Professor of Law at Lincoln Law School in San Jose, California, there are concerns with the constitutionality of the new law.
In the landmark 2008 U.S. Supreme Court decision D.C. v. Heller, the late Justice Antonin Scalia wrote, “In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.”
“My guess is that a case would come down to what the government is requiring,” Kilmer told Complete Colorado in an interview. “If it’s requiring that you render your firearm inoperable or unable to be used in the two seconds that it takes to make a decision in a self-defense scenario, then clearly they’re trenching on the right of self-defense in the home.”
“If the government is proposing a solution that doesn’t trench on the right to get your weapon out and deployable in an emergency, the burden is going to be on the government to prove that their remedy doesn’t do that,” Kilmer continued. “It’s going to be up to the gun lawyer in that case to make a showing to either a jury or a judge that no matter how newfangled your devices or how quickly it deploys, is anything quicker than reaching into your nightstand and pulling out your pistol?”
Kilmer says the reticence of the Supreme Court to take 2nd Amendment cases since the 2010 McDonald v. Chicago decision is emboldening anti-gun states and local jurisdictions to restrict gun rights.
“It appears that because the U.S. Supreme Court has gone a little bit dormant on the Second Amendment since McDonald, the more aggressive states and more aggressive jurisdictions are taking that as a sign that they can push the envelope on restrictions,” said Kilmer. “You have the recent decision out of the Ninth Circuit, Young v. Hawaii, that there is no right to open carry, and the Peruta [v. San Diego]decision that there’s no right to concealed carry. The Ninth Circuit is basically saying there’s no right to carry, which means they’re just striking the word “bear” from “keeping and bearing” in the 2nd Amendment.”
“Can they do it? Well, yeah, they can do it,” Kilmer continued. “The question is whether or not there’s a court out there with the stones to say, ‘No, this is this is a violation of law,’ and Heller spoke pretty clearly on this.”
The Ninth Circuit Court of Appeals covers Alaska, California, Guam, Hawaii, Idaho, Montana, Nevada, Oregon, Washington and the Northern Mariana Islands, so its rulings are not binding in Colorado, which is part of the 10th Circuit.
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