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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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