Why Colorado Needs Firearms Preemption

William R. Dietrick

Synopsis: House Bills 1305 and 1316 specify that all gun laws be made by the state legislature, not by city or county governments. These bills are essential to protect the constitutional right to keep and bear arms of the people of Colorado. Careful examination of existing local laws show that they do not protect public safety, but instead place unjustifiable burdens on the exercise of constitutional rights. In this Backgrounder, we detail some (but by no means all) of the unjustifiable gun laws.

Aurora ammunition ban: Has a restricted ammunition ordinance. This states that any ammunition coated or treated with Teflon or similar synthetic compound is unlawful.

I have loaded, in one of my .38 Specials, some Federal brand ammunition, which has basic lead bullets. They are, however, coated with Teflon. This coating is provided on this readily-available commercial ammunition to keep the pistol from having too much lead build-up in the barrel from higher-velocity bullets.

This normal ammunition--which is banned by Aurora--is not the infamous “cop-killer” extremely-penetrant ammunition. Such ammunition is banned by federal law, and the federal definition has nothing to do with teflon. Rather, “armor piercing ammunition” is a handgun bullet “constructed entirely” from “tungsten alloys, steel, iron, brass, bronze, berylium copper, or depleted uranium.” 27 Code of Federal Regulations § 178.11. The Aurora “teflon” ban is a perfect example of how local governments lack the expertise to craft appropriate firearms laws. The federal ban (which, by the way, was supported by the National Rifle Association) focuses on the types of bullet materials which give a bullet armor-piercing capability. The Aurora ban does nothing about high-penetration bullets. Instead, the Aurora law merely bans a type of bullet coating.

When the Colorado legislature enacts gun laws, the legislature usually brings in experts of all types to craft technically appropriate legislation. But the Aurora government apparently enacted a law based on little more than what some councilperson had heard from a television program.

Thus, it is now illegal in Aurora to possess ordinary Federal brand ammunition, which has no more penetrating power than any other commercially-available self­defensive .38 Special ammunition, and which certainly will not penetrate a police jacket.

The Federal ammunition is perfectly legal in all other areas of the State, and can be purchased over the counter by anyone legally capable of buying pistol ammunition.

Yet, if a citizen who was not aware were to bring such ammunition to a target shooting range in Aurora, he could be arrested. Aurora has the same affirmative defenses concerning concealed carry as does the State law. It does have a presumptive evidence rule, wherein any firearm located hidden in a vehicle causes presumptive evidence that the firearm is in the possession of all the occupants of the vehicle, unless the firearm is carried on one person.

Denver property confiscation: Denver’s property confiscation ordinances are discussed in a separate Independence Institute Issue Backgrounder. Briefly put, the ordinances allow the confiscation of the gun and the car of people with concealed handgun permits who travel through Denver. The ordinances make a mockery of due process; for example the ordinances declare that judges must enforce them “without regard to. ..the culpability or innocence of those who hold these rights.” (Denver R.M.C. § 37-70(a).)

Denver juvenile “weapons” ban: Denver’s juvenile weapons ordinance is now touted as the reason for Denver’s recent drop in homicides--although the decline in crime in Denver is no greater than the trend in most other large American cities in the same period. And the statewide juvenile handgun law (enacted three months after the Denver ordinance) would remain in place, and restrict most handgun possession by juveniles. But as detailed in a 1993 Independence Institute Issue Paper, the Denver ban goes far beyond any reasonable form of gun control. In Denver, it is currently illegal to allow someone under 18 years old to even touch a gun, even during a safety training class.

It is even illegal. for a father and son to drive to a hunting trip in the Yampa Valley, with an unloaded rifle in the rack of a pick-up truck. Read the “Spot the Crimes” op-ed attached .to the end of this Issue Backgrounder, and decide whether Denver’s ordinance is an asset to public safety--or a poorly written exercise in public relations from politicians who hold the Second Amendment in complete contempt.

Englewood: The forfeiture ordinance states that “In every case where a person is charged with a violation involving a weapons offense, he/she shall forfeit to the City such dangerous or illegal weapon.” This does not say convicted, but simply charged.

Lakewood: It is unlawful to carry a firearm where vinous, spirituous or malt liquors are sold, but that this ordinance does not apply to peace officers or proprietors. This would make it illegal for me, as a concealed-carry permit holder, even to walk into a liquor store and buy a bottle of wine for dinner that night. It is also illegal for a person with a concealed handgun permit to go into a grocery store, since most grocery stores sell beer. Likewise, it is illegal for a person with a concealed handgun permit to have dinner with his/her spouse in any restaurant which serves liquor--even if the permit holder never drinks a drop. Thus, the average permit holder is in danger of arrest for the perfectly innocent acts of going to a grocery store or going out to dinner.

Thornton:  Colorado law currently allows persons to carry a handgun in their place of business for lawful protection, or in their automobile for lawful protection “while traveling.” (C.R.S. § 18-12-105.) Like Denver, Thornton drastically narrows the statewide law, and allows business owners or travelers to carry only when there is a direct or immediate threat! Thus, proprietors of small businesses, or travelers, are deprived of their right to self-protection. Thornton and Denver apparently expect that small business owners will be able to ask robbers to wait a minute with the robbery, so that the owners can lawfully retrieve his/her handgun.

Constitutional priorities: The purpose of state government is not to make local government officials happy. Rather, the purpose of government, the Declaration of Independence teaches, is to protect human rights, which come from God, not the government. In our Colorado Constitution, the rights of the people are more important than the powers of government. Immediately after Article I of our State Constitution (defining the boundaries of the state), Article II sets forth the Bill of Rights, beginning, “In order to assert our rights, acknowledge our duties, and proclaim the principles upon which our government is founded, we declare:” Thus, the Bill of Rights precedes the creation of any of the branches of state government (Articles III through VI). Local governments do not come until Article XIV (counties) and Article XX (home rule cities and towns).

If local governments censored speech or discriminated against minorities, the Legislature would act to halt those abuses. Likewise, when local governments attack the right to arms, or take property without due process, the Legislature is also obligated to act. Every resident of Colorado is entitled to enjoy the full benefits of the Colorado Constitution’s Bill of Rights in every square inch of the state. That is why we have a state government.

Preemption legislation such as House Bills 1305 and 1316 is not an interference with local law making, because local governments have no lawful authority to infringe the Colorado Constitution’s Bill of Rights. Preemption legislation is long overdue, to remove from the people of Colorado the burden of intolerant, ignorant, oppressive, and illegal “laws.”

Prepared by Bill Dietrick and David B. Kopel, for the Independence Institute

March 9, 1999

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