Boulder County, Civil Liberties, Constitutional Law, Dave Kopel, Featured, Local Gun Rights, Right To Arms

Kopel: Boulder County’s gun rights restrictions target the law-abiding

Boulder’s elected officials self-identify as being progressive, tolerant, and realistic. Yet the gun-control package enacted recently by Boulder County Commissioners is the opposite.

Consider, for example, the new restrictions on the licensed carrying of firearms. Similar bans have been enacted in several Boulder County municipalities. Ever since 2003, Colorado has had a fair system for licensing concealed carry. Applicants must take safety training and pass a fingerprint background check. Even if an applicant has a clean record, the application may be denied if the sheriff has specific evidence that the applicant could be a danger to self or others.

Persons who are issued carry permits are among the most law-abiding in Colorado.

Sheriffs must file annual reports to the legislature about concealed-carry permit issuances and revocations. The data, available on the website of County Sheriffs of Colorado, show the number of permit revocations based on a permit-holder’s arrest. The FBI’s annual report Crime in the United States shows the number of Coloradans in the general population who are arrested in a given year.

Based on the data, a Colorado adult with a concealed carry permit is 39 times less likely to be arrested than an adult in the Colorado general public.

If everyone were as law-abiding as concealed-carry licensees, crime would be so rare that hardly anyone would need a defensive firearm.

Yet, the Boulder County commissioners targeted this exceptionally law-abiding group. The new law bans licensed carry in all county open space and parks. There is no public safety benefit to prohibiting an early morning jogger from protecting herself against a mountain lion or a human predator.

Pretending to obey the Supreme Court, the commissioners’ “findings” quote the court’s recent ruling in New York State Rifle & Pistol Association v. Bruen.

The quote includes the court’s citation of my law review article about the legal history of banning arms carrying in “sensitive places.” Despite the quote, the commissioners do not appear to have read or obeyed the Bruen opinion.

Bruen cited my article for listing 18th and 19th century bans in a few jurisdictions on carrying arms in “legislative assemblies, polling places, and courthouses.” Bruen also repeated language from the Supreme Court’s 2008 Heller decision listing “schools and government buildings” as “sensitive places” where bearing arms could be prohibited.

According to Bruen, today’s “courts can use analogies to those historical regulations of ‘sensitive places’ to determine that modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible.”

The problem with the Boulder ban on parks and open spaces is that such places are not “new.” Bruen’s review of the “historical tradition” of restrictions on bearing arms ends in 1900, and Bruen expressly states that subsequent laws come too late to override the Second Amendment text. Before 1900, no American state forbade arms carrying in parks and open space. Under present Supreme Court doctrine, there is no realistic legal argument to support such a ban.

Likewise dubious is the commissioners’ prohibition on licensed carry in houses of worship “without express permission in writing.” Some religious organizations are pacifist, and some are not.

For those that believe in the morality of forcible defense of others, the Boulder law imposes an extreme burden. If a large church wants worshipers to be able to possess a concealed handgun, giving a written letter of approval to every church member would be a difficult feat.

Instead, churches ought to be able to set their own rules, just like other private property owners.

Like churches, some grocery stores exercise their private property right to forbid licensed carry, and some welcome everyone. The Boulder commissioners take away the choices of the grocery stores that do not want their customers to be sitting ducks for mass shooters.

The Boulder resolution purports to be based on preventing mass shootings in churches and grocery stores. Yet none of the atrocious crimes they list were perpetrated by persons with a licensed carry permit.

To the contrary, a church shooting was stopped in White Settlement, Texas, in 2019 by an armed congregant. This July, a mass shooter at a shopping mall in Greenwood, Ind., was taken out by an armed customer.

According to a May 20, 2018, Washington Post fact check, “We found that about 86 percent of mass public shootings took place in gun-free zones from 2009 to 2016.” This figure excludes shootings in private residences and is based on defining “gun-free zone” as a place where licensed carry is forbidden.

The new Boulder County law is regressive for public safety. It based on animus against exceptionally law-abiding Coloradans.

David Kopel is research director at the Independence Institute and adjunct professor of advanced constitutional law at Denver University’s Sturm College of Law.


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