2021 Leg Session, Boulder, Civil Liberties, Constitutional Law, Exclusives, Gold Dome, Legal, Original Report, Politics, Right To Arms, Scott Weiser, Uncategorized

Bill granting ‘local control’ over guns allows only stricter regulation; reverses decades of state preemption

DENVER–A little more than a month after the tragic mass shooting at the King Soopers grocery store in Boulder, legislative Democrats introduced Senate Bill 21-256  in an attempt to reverse decades of state firearms protection laws. While purporting to grant local governments authority to enact their own gun-related ordinances, critics note the bill only allows for local regulations stricter than those at the state level, a marked departure from the traditional meaning of ‘local control,’ and sets up the potential for otherwise law-abiding gun owners to be ensnared in a patchwork of conflicting gun laws around the state.

The bill passed its first hearing Tuesday in the Senate State, Veterans and Military Affairs committee hearing on a party-line 3-2 vote. More than 50 people spoke at the nearly three-hour long hearing, and opinion for and against were about equally represented. It now heads to the Senate floor to be heard at 9:00 a.m. Friday.

Among other things, the bill allows local governments, including “a statutory or home rule city and county, county, city or town” to enact ordinances, regulations or laws “governing the sale, purchase, transfer or possession of a firearm, ammunition, or firearm component or accessory that a person may lawfully sell, purchase, transfer or possess under state or federal law.” 

The power granted to local governments by the bill is so broad that it would appear to allow outright bans on possession of firearms and ammunition in the home, or anywhere else.

Right to arms under state, federal Constitutions

The U.S. Supreme Court ruled such bans unconstitutional in the 2007 landmark case affirming the right to arms, D.C. v. Heller, which overturned the District of Columbia’s ban on handguns and its prohibition on keeping a firearm assembled for immediate self-defense in emergencies.

At the senate hearing, one of the bill sponsors, Senator Stephen Fenberg, D-Boulder, repeatedly insisted that regulation of firearms is a matter of local control to be decided by local politicians. According to the bill, “officials of local governments are uniquely equipped to make determinations as to regulations necessary in their local jurisdictions.”

Fenberg, also admitted he was “not totally aware that state law in Colorado preempts local governments from having any role in regulating firearms at the local level,”

At no time did Fenberg or anyone else discuss or even mention the state and federal constitutional rights implications of the bill.

The Colorado Constitution 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,” and the 2nd Amendment to the U.S. Constitution says that “…the right of the people to keep and bear arms shall not be infringed.”

In the Heller majority opinion, Justice Antonin Scalia addressed the issue of local control under the 2nd Amendment saying, “We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government…the power to decide on a case-by-case basis whether the right is really worth insisting upon…Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.”

A tortured definition of ‘local control’

Former state Senator Greg Brophy spoke with Ross Kaminsky about the bill on May 7 on Kaminsky’s 630KHOW radio program.

Brophy noted that the bill purports to support local control, but doesn’t believe that it reflects the true meaning of “local control,” which usually involves the right of local authorities to create more permissive regulations in matters of strictly local, not statewide interest. 

“Later on in the bill they say that local governments can only regulate firearms if they regulate them in a manner that’s more strict than what the state does,”  said Brophy.

Brophy continued, “This really does allow for the worst possible type of firearms laws that we can imagine.

Kevin Bommer, Executive Director of the Colorado Municipal League, a consortium of cities and towns, said the CML had not taken a position on the bill in an interview with Complete Colorado Tuesday.

A patchwork of concealed carry bans

The bill goes even further by allowing local governments, including “a special district, or the governing board of an institution of higher education” to ban the carrying of concealed handguns within its jurisdiction, despite the person having a valid concealed handgun permit. 

There are more than 2,000 special districts in Colorado ranging from residential special improvement districts to parks and open space districts to library, business improvement and water districts, each of which would be able to set policies under this bill regarding concealed carry that would be separate from other districts or even from the municipality within which the district is formed. 

Several speakers at the hearing pointed out that traveling through the state can take one through many towns, cities, counties and special districts, each of which could have an entirely different set of restrictions under the bill, leaving both Coloradans and visitors from out of state legally carrying a concealed handgun under reciprocity agreements between their home state and Colorado at risk of arrest and criminal charges.

Fenberg dismissed these concerns saying another state law protects people carrying firearms in their cars, but ignored the potential for arrest if a person stops for gas or a meal while otherwise lawfully carrying a concealed handgun. 

Since 1971 Colorado has preempted local regulations and restrictions on legal carrying of concealed weapons by saying “a permit to carry a concealed handgun authorizes the permittee to carry a concealed handgun in all areas of the state, except as specifically limited in this section.” 

In 1993 the state legislature addressed the issue of concealed weapons on college or university grounds by making it legal to do so with a permit, and it clarified its intent in 2013 by saying that on college and university campuses, but not K-12 schools, permitted concealed carry is “not an offense.”  

Some speakers in favor of the bill objected to the idea of concealed handguns on university campuses, but none pointed to a single instance in which a person licensed to do so has committed any crime. Objectors pointed out several instances of rapes committed on campus, including one where the victim had left her legally-permitted handgun in her car out of concern it might be illegal for her to carry it on campus.

The bill sponsors are Stephen Fenberg, D-Boulder and Dominick Moreno, D-Commerce City, along with co-sponsors Rep. Edie Hooton, D-Boulder, Rep. Lindsey Daugherty, D-Arvada and Rep. Karen McCormac, D-Hygiene.

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