DENVER — In one of their first moves of the 2023 legislative session, majority Democrats — who control nearly two-thirds of both chambers — are gearing up to enact a ban on what appears to be the entire class of semi-automatic weapons.
In fact, it may be easier to know what guns would still be legal in Colorado by simply reading one paragraph of the 16-page draft bill, which says a so-called “assault weapon” does not include any firearm that “has been made permanently inoperable; an antique firearm manufactured before 1899; a replica of an antique firearm; a firearm that is manually operated by bolt; pump; lever; slide action, unless the firearm is a shotgun with a revolving cylinder; or a firearm that can only fire rimfire ammunition.”
The bill, embedded at the end of this article, will prohibit anyone in Colorado from “possessing, manufacturing, importing, purchasing, selling, offering to sell, or transferring ownership of” a so-called assault weapon. A violation of the new law would be considered a class 2 misdemeanor, but if that weapon is then used in the commission of a felony or a crime of violence the seller could then be charged with a class 6 felony.
Constitutional concerns voiced
David Kopel, an adjunct professor of advanced constitutional law at Denver University’s Sturm College of Law as well as research director of the Independence Institute*, said he doesn’t believe this bill will stand up in court as written.
Although there is some precedent for a much narrower scope of bans on semiautomatic weapons, banning the entire class is a different subject matter.
“There has never been anything enacted like this that has been held constitutional,” Kopel said.
Sponsors of the bill, dubbed the “Mass Shooting Prevention Act of 2023,” want Coloradans to believe that banning what they refer to as an “assault rifle” will stop mass shootings, despite no real evidence that idea is true.
Larimer County Rep. Andrew Boesenecker, Denver Rep. Elisabeth Epps and Adams County Sen. Rhonda Fields are the bill’s prime sponsors.
Weld County Sheriff Steve Reams also took issue with the constitutionality of the bill.
“On face value, it violates someone’s Fourth and Fifth Amendment rights by forcing them to provide evidence against themselves,” Reams said. “It’s just like the magazine bill. The time and effort it will take to try and enforce this is not practical.”
Reams was referring to a 2013 bill that limited the size of gun magazines that can be sold in Colorado. The Fourth Amendment protects against unlawful search and seizure, and the Fifth Amendment is the right against self-incrimination.
Reams has long been vocal against encroachment on gun rights. He has openly said he won’t enforce the existing Red Flag Law and told Complete Colorado this bill is even more problematic for him. He said everything about the bill is wrong, beginning with the idea this law will prevent mass shootings.
“Assault weapons in civilian hands endanger Colorado’s streets, stores, restaurants, places of worship, music venues, schools, movie theaters, and communities at large,” the current draft of the bill reads. “With an assault weapon, even a firearms novice can perpetrate a mass casualty incident.”
The bill allows anyone who lawfully possessed an “assault weapon” prior to the effective date of the bill — July 31, 2023 for much of the law — to continue to posses the firearm under certain circumstances, such as possessing “documentation of ownership,” secure storage and only possessing the firearm on limited property locations, conditions Reams said puts the burden of proof on citizens rather than the state and violates due process.
“The way this requires someone to declare ownership is a massive problem,” Reams said. “If I’ve owned a gun for 20 years, trying to produce a receipt, or even a gun I’ve owned for two days. If I buy a gun from a guy in Wyoming, there is no law that says I have to have a receipt. It’s a private party transaction. They are trying to create a de facto gun registry.”
Sweeping definition of ‘assault weapon’
Even more problematic, Reams said, is the extremely broad definition of an “assault weapon,” in the bill:
- A semiautomatic rifle that has the capacity to accept a detachable magazine, or that may be readily modified to accept a detachable magazine, and has one or more of the following characteristics:
- A pistol grip.
- Any feature capable of functioning as a protruding grip that can be held by the non-trigger hand.
- A folding, telescoping, thumbhole, or detachable stock that is otherwise foldable or adjustable in a manner that operates to reduce the length, size, or any other dimension, or otherwise enhances the ability to conceal the weapon.
- A flash suppressor.
- A functional grenade launcher.
- A shroud attached to the barrel, or that partially or completely encircles the barrel, allowing the bearer to hold the firearm with the non-trigger hand without being burned, but excluding a slide that encloses the barrel.
- A threaded barrel.
- A semiautomatic rifle that has a fixed large-capacity magazine.
- A .50 caliber rifle.
- A semiautomatic pistol that has the capacity to accept a detachable magazine, or that may be readily modified to accept a detachable magazine, if the semiautomatic pistol meets another set of circumstances (found here).
- A semiautomatic shotgun that meets another set of circumstances (found here).
- A semiautomatic firearm that has the capacity to accept a belt ammunition feeding device.
- A semiautomatic firearm that has been modified to be operable as an assault weapon as defined.
- Any part or combination of parts designed or intended to covert a firearm into an assault weapon as defined.
Reams called the definitions “all encompassing,” and said they don’t make sense, using the weight of gun as one example.
“Whoever authored the bill has some familiarity with guns, but not complete familiarity,” Reams said. “The nomenclature they use doesn’t make any sense, including the things they are using to describe an assault rifle. So If I buy gun that weighs more than 50 ounces (which under the new law would be illegal), but I put different grips on it making it less than 50 ounces, it’s now legal?”
The new law would also require law enforcement to hold guns for three days before destroying them to allow an owner the chance to prove ownership, something Reams said his office will not be participating in.
“I don’t do firearms storage now because I don’t have the space for it,” he said. “And the whole destruction of something, again, we are requiring an innocent person to prove they have legitimate ownership of something with the express ability to destroy it if the person doesn’t do it within three days. I don’t know (who) has ever dealt with getting a receipt or dealt with the ATF (Alcohol, Tobacco and Firearms), but three days is not a very big window.
“I am not going to take something away from someone and have them try to prove to me that it’s legal. That’s just not the way the constitution works. “
Reams said legislators are running a risk this will set up black market gun sales.
“They are creating an incentive for people to sell their stuff in maybe not the most legitimate way to get some money out of their guns before they can’t get any money at all,” Reams said, adding there will likely be the largest increase in gun sales in Colorado history between now and the effective date of this bill.
“They are looking for a righteous fix,” Reams said. “Nobody wants to see mass shootings, but this isn’t the fix.”
*Independence Institute is the publisher of Complete Colorado.
