Dear Denver City Council:
This letter is to address some of the questions about licensed concealed carry raised at the April 13, 2022, meeting of the Committee on Safety, Housing, Education & Homelessness. This letter is also being made available to the public.
What are crime rates for persons with licensed carry permits?
A concealed handgun permit (CHP) is issued only to persons 21 and over. Roughly speaking, among the Colorado population 21 and over, an adult with a concealed handgun permit is about 39 times less likely to be arrested than an adult without a CHP. The data are as follows.
The 2003 statute creating Colorado’s current system of licensed carry required sheriffs to make annual reports to the legislature.[1] For 2020, the statewide total was 37,909 new permits issued, and 23,141 renewals. (Permits are valid for 5 years.) In that same period, there were 348 revocations. The majority (196) were for arrests. In Denver, there were 1,685 permits issued and 470 renewals. There was one revocation of a Denver permit in 2020, under the category “mental illness or addiction.”[2]
The figures for 2019 are similar: statewide 23,250 new licenses; 24,473 renewals; and 377 revocations. Two revocations in Denver, both for arrest.[3] Likewise in 2018: 25,643 new licenses; 35,141 renewals; and 537 revocations. Seven revocations in Denver, six for arrest, and one for restraining order.[4] An arrest that leads to a revocation does not necessarily involve misuse of a firearm; anything that, if leading to a conviction, would make the person ineligible for a carry permit would be sufficient.
The FBI annually publishes the report Crime in the United States, and the most recent such report is for 2019.[5] According to Table 69, in Colorado in 2019 there were 178,985 arrests of persons over 18.[6] Nationally, about 8.6% of adult crimes are perpetrated by persons ages 18 to 20. So to estimate Colorado arrests for adults 21 and over, we reduce the 179,985 arrests for persons 18 and older by 8.6%.[7] The resulting figure is 163,592 Colorado arrests of persons 21 and older in 2019.
According to the Census Bureau, Colorado’s population in 2019 was 5,758,736. Of these, 4,205,643 were age 20 or older.[8] Subtracting the approximately 75,553 persons of age 20 gives us 4,130,090 persons aged 21 and older.[9]
Thus, the figures for 2019 are: Coloradans aged 21 and older: 4,130,090. Arrests in this group: 163,592. Result: one arrest per 25 persons
Coloradans with concealed handgun permits, for which the minimum age is 21: 233,606 CHP holders.[10] Permit revocations based on arrest: 237. Result: one arrest per 986 persons.
That means that Coloradans without a concealed handgun permit are about 39 times more likely to be arrested than persons who have a CHP. There is one arrest per 25 persons for the general population, versus one arrest per 986 persons for CHP holders.[11]
The reason is obvious: concealed carry is, by its nature, virtually impossible to detect, unless a person walks through a metal detector or is frisked by the police. Obtaining a concealed carry permit requires hundreds of dollars in fees and expenses, including for training, as well as the post-training hours necessary to go through the permitting process. In Denver, applicants must go through long waits even to schedule appointments for fingerprinting and filing an application. The only people who bother to go through the onerous process are people who are so concerned about legal compliance that they spend significant resources just to obtain a card from the government allowing them to legally do what they could done anyway for free, and with very low risk of being caught. It is no wonder that Colorado’s concealed carry permitees are much more law-abiding than the general population.
The strictness of Colorado’s permit system
Colorado’s concealed carry law is unusually strict compared to the most states. At present, 25 states do not require a permit for concealed carry, as long as the carrier is an adult who can lawfully possess a handgun. Of the states that do require a permit, the norm is a purely objective licensing system.
Colorado, however, allows application denials or permit revocations for additional, subjective reasons: “if the sheriff has a reasonable belief that documented previous behavior by the applicant makes it likely the applicant will present a danger to self or others.” C.R.S. §§ 18-12-203(2); 18-12-206(1) & (2). If the individual seeks judicial review, the burden of proof is on the sheriff. C.R.S. §§ 18-12-203(3)(c), 18-12-207.
In addition, Colorado not only requires that an applicant pass a safety training class, part of the class must be conducted in-person.[12] I testified in favor of the 2013 bill that added the in-person requirement. The in-person component ensures that the certified instructor can observe the individual’s demeanor.
Would the proposed bill violate the Second Amendment?
In early November, the U.S. Supreme Court heard oral argument in New York State Rifle and Pistol Association v. Bruen.[13] Some counties in New York have a policy of denying concealed carry permits to impeccable adult applicants who pass all background checks and safety training, because the issuing authority is opposed to gun carrying in general. Based on oral argument, it appears very likely that the Court will hold the denial policy to violate the Second Amendment right to “bear arms.”[14] The opinion could be issued soon, or it might not be issued until late June.
Much of the Bruen oral argument addressed the question of “sensitive places.” In the landmark 2008 decision District of Columbia v. Heller, holding the District’s handgun ban unconstitutional, the Court offered some guidelines for the Second Amendment. In particular: “Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on . . . laws forbidding the carrying of firearms in sensitive places such as schools and government buildings . . .”[15]
The 2022 Bruen decision will likely elaborate on the “sensitive places” rule articulated in Heller. Because Bruen will be the Supreme Court’s first major decision addressing in detail the right to “bear arms,” it would be prudent for the Denver City Council to wait for the Bruen decision. Otherwise, the City might end up on the losing side of litigation and would have to pay legal fees to whoever challenged a pre-Bruen ordinance that violated Bruen.
Lower court decisions
Since 2008, lower courts have grappled with Heller’s terse language about “sensitive places.” Although the impending Bruen decision will likely provide much more clarity, the bottom line so far, from lower courts, is that a ban on licensed carry in government buildings would have the greatest chance of passing judicial review, and a parks ban would have much less.
After all, Heller expressly said “government buildings.” Parks are not buildings. Whatever characteristics make government buildings, such as courthouses, especially “sensitive” are not present in parks—which are traditionally open to all persons for all legitimate purposes. Many government buildings are protected full-time by armed law enforcement officers, so the need for personal defense therein is reduced. This is not true in parks.
Last year, a U.S. District Court in Illinois held unconstitutional the Cook County (Chicago plus suburbs) ban on licensed carry in government forest preserves. Solomon v. Cook County Board of Commissioners, — F.Supp.3d —-, 2021 WL 4147167 (N.D. Ill., Sept. 13, 2021).[16]
By a 3-0 vote, the U.S. Court of Appeals for the Tenth Circuit, which includes Colorado, upheld the federal statute against carrying firearms in post offices. The court also upheld the ban on arms in postal parking lots by 2-1, since parking lots are integral to postal buildings’ operation, such as in loading mail onto delivery trucks. Bonidy v. United States Postal Service, 790 F.3d 1121 (10th Cir. 2015).[17] The Tenth Circuit reversed the U.S. District Court’s decision, by Judge Matsch, which had held the parking lot ban to violate the Second Amendment.
In other words, in Colorado’s federal courts two judges have said that the postal parking lot ban was constitutional, and two, including the distinguished and long-serving Richard Matsch, said the opposite.
The Bonidy appellate majority stated that judicial review of the Second Amendment should be more lax than judicial review of other parts of the Bill of Rights, because firearms are dangerous.[18] This seems in tension with the U.S. Supreme Court’s 2010 decision in McDonald v. City of Chicago, which rejected the idea “that the Second Amendment should be singled out for special—and specially unfavorable—treatment.”[19]
The Bruen decision may well address the point. Four current Justices of the Supreme Court—Alito, Gorsuch, Kavanaugh, and Thomas—have expressed concerns about lower courts underenforcing the Second Amendment, and sometimes specifically the right to bear arms.[20]
Nobody except the Supreme Court Justices and their clerks knows what the Bruen decision will say. The “government buildings” language from Heller could be affirmed, or it could be narrowed to certain types of government buildings. Heller offered no support for the idea that there is a Second Amendment exception for parks or for parking lots, neither of which are “government buildings.” (Other than parking lots that are themselves buildings, or integrated into the lower floors of office buildings.) The Bruen decision may provide long-awaited clarity on the above questions.
Accordingly, the Council might consider continuing to study the issue of licensed carry, while waiting until the Bruen decision to craft legislation.
David B. Kopel is research director at the Independence Institute and adjunct professor of advanced constitutional law at the University of Denver’s Sturm College of Law.
***
[1] C.R.S. § 18-12-206(4). The annual reports are available here:
[2] https://www.coloradosheriffs.org/assets/docs/2020%20CHP%20Report%20.pdf
[3] https://www.coloradosheriffs.org/assets/docs/2019%20CHP%20Report%20.pdf
[4] https://www.coloradosheriffs.org/assets/docs/2018%20CHP%20Report.pdf
[5] https://ucr.fbi.gov/crime-in-the-u.s/2019/crime-in-the-u.s.-2019
[6] https://ucr.fbi.gov/crime-in-the-u.s/2019/crime-in-the-u.s.-2019/tables/table-69. There were 195,870 total arrests, from which I subtracted the 16,885 arrests of persons under 18.
[7] The FBI Colorado data do not break down arrests into smaller age bands. So I used national data to estimate the number of arrests of persons 18-20, and remove them from the figures. The following data are based on the Statistical Briefing Book published by the U.S. Department of Justice Office of Juvenile Justice and Delinquency. https://www.ojjdp.gov/ojstatbb/crime/ucr.asp?table_in=1. In 2019, there were 9,388,590 offenses by person 18 or older. Of these, 807,210 were perpetrated by persons ages 18 to 20. So persons 18 to 20 perpetrated about 8.6% of all adult offenses.
[8] Go to https://www.census.gov/data/datasets/time-series/demo/popest/2010s-state-detail.html. Click “Colorado.” This will open an Excel spreadsheet with the data. The age data are divided into 5-years. I subtracted all age categories for persons younger than “20 to 24 years.”
[9] The Census Bureau showed 377,765 persons in Colorado ages 20 to 24. Assuming that 20-year-olds constitute about one-fifth of this five-year age group, there were about 75,553 Coloradans age 20 in 2019.
[10] The current website of County Sheriffs of Colorado has the reports for 2018, 2019, 2020. The 2018-20 average for renewals was 27,585 annually. The average of new permits for 2018 and 2019 was 24,446. (For figuring extant permits in 2019, I did not include the 2020 figures in the average, because new permits increased in 2020, due to heightened concerns about public safety that year.) For 2019, I estimate the total number of permits extant permits as follows: Older permits in the five-year renewal cycle 27,585 x 5 years = 137,925. Plus new permits issued in 2016, 2017, 2018, and 2019: 24,446 x 4 = 97,784. Total = 235,709. From this we subtract the revocations, which in 2018-20 averaged 420.6 per year. Or 2,103 in the five year cycle concluding with 2019. So as of 2019, there about 233,606 extant permits.
[11] It is possible for a person to be arrested more than once in a single year. The data from the FBI and the County Sheriffs do not indicate whether a person was arrested more than once.
Of course not all persons arrested are ultimately found guilty, so permits that were revoked because of a mistaken arrest would presumably be reissued later. The data do not indicate how often this happens.
[12] C.R.S. § 18-12-202(5)(b).
[13] All the written documents in case are available at https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/20-843.html.
[14] The audio and a transcript are available at: https://www.supremecourt.gov/oral_arguments/audio/2021/20-843.
[15] District of Columbia v. Heller, 554 U.S. 570, 626 (2008).
[16] https://www.leagle.com/decision/infdco20210914e60
[17] https://casetext.com/case/bonidy-v-us-postal-serv-1
[18] “The risk inherent in firearms and other weapons distinguishes the Second Amendment right from other fundamental rights that have been held to be evaluated under a strict scrutiny test . . .” Bonidy at 1126.
[19] McDonald v. City of Chicago, 561 U.S. 742, 779-80 (2010).
[20] See, e.g., Peruta v. California, 137 S. Ct. 1995 (2017) (Justice Thomas, joined by Justice Gorsuch, dissenting from denial of certiorari) (right to bear arms); Rogers v. Grewal, 140 S. Ct. 1865 (2020) (Justice Thomas, joined by Justice Gorsuch, dissenting from denial of certiorari) (right to bear arms); New York State Rifle & Pistol Ass’n v. City of New York, 140 S. Ct. 1525 (2020) (Justice Kavanaugh, concurring) (Justice Alito, joined by Justices Gorsuch and Thomas, dissenting) (ban on taking licensed handgun out of New York City; the local regulation was repealed before the case was decided).
