September 28, 2022

US District Court in Colorado issues TRO against magazine and gun ban

Today, U.S. District Judge Raymond P. Moore issued a temporary restraining order against the ban on so-called “assault weapons” recently enacted by the city of Superior, Colorado in Boulder County. . The case is Rocky Mountain Gun Owners v. Superior.

The plaintiffs’ lead attorney was Barry Arrington, one of Colorado’s top education law attorneys and now the winner of a major Second Amendment case. Arrington previously served in the Colorado House of Representatives and as a trustee of the Independence Institute, where I work.

Judge Moore was previously a corporate lawyer (Davis, Graham and Stubbs, Denver) and then Chief Federal Public Defender for Colorado and Wyoming. He was nominated to the bench by President Obama in 2013 and confirmed unanimously.

Like several other towns in Boulder County, Superior recently banned semi-automatic centerfire rifles that have at least one supposedly bad feature, such as an adjustable stock; various semi-automatic shotguns; various semi-automatic handguns; and magazines with a capacity of more than 10 rounds.

It was obvious that these weapons are “commonly used by law-abiding citizens for lawful purposes”, which has been the rule of the Supreme Court since then. District of Columbia v. Heller (2008) for which weapons are protected by the Second Amendment. First, the Colorado attorney general and the plaintiffs in an earlier case challenging the state of Colorado’s ban on magazines longer than 15 turns had said so. Colorado Outfitters Ass’n vs. Hickenlooper, 24 F. Supp. 3d 1050, 1068 (D. Colo. 2014), partly released for other reasons and sent back, 823 F.3d 537 (10th Cir. 2016). (I represented 55 Colorado sheriff plaintiffs in the case, which ended with the 10th Circuit declaring that neither the sheriffs nor the many other individual and organizational plaintiffs had standing.) Commonalities have also been found in the undisputed facts set forth in the judgment of Judge Traxler of the Fourth Circuit. dissenting opinion in Kolbe vs. Hogan, 849 F.3d 114, 153-55 (4th Cir. 2017). The opinions of many other circuit courts provide further and compelling evidence of commonalities; banned firearms number in the millions, at least, and banned magazines account for more than half of all magazines.

In accordance with the recent Supreme Court decision in New York State Rifles and Pistols Association vs. Bruen, courts are expected to decide Second Amendment cases on text, history, and tradition. The judge cannot decide based on his own opinions about good policy, nor should he defer to the judgments of legislative policy. The balancing policy was already being pursued by the American people when they passed the Second Amendment.

In BrownAccording to the historical approach of , the most significant periods are the Founding Era and the Reconstruction (when the Fourteenth Amendment made the Second Amendment binding on state and local governments). English history is relevant in that it shows an unbroken tradition that was adopted in America and continued to the founding. Colonial history is also relevant. The same goes for 19th century history and (with the exception of reconstruction) the sooner the better. The end of the 19th century is weaker and the 20th century is much too late to show a historical tradition that could override the text of the Second Amendment.

Judge Moore wrote: “the Court ignores historical precedent that would allow a government entity to ban a type of weapon entirely which is commonly used by law-abiding citizens for lawful purposes, whether in at home or in public.”

To be precise, there are a few precedents prior to 1900, but none are more valid.

After incidents in which armed blacks deterred mobs from lynching, Florida in 1893 enacted a license requirement, an exorbitant bond for carrying or possessing a “Winchester or other repeating rifle.” Florida Statutes 1893, c. 4147, §1. In 1941, a Florida Supreme Court justice explained that the law was enacted to control black workers:

The statute was never intended to be applied to the white population and in practice was never so applied…. [T]here, to my knowledge, no effort has been made to enforce the provisions of this law against whites, as it has been generally agreed that it contravenes the Constitution and is unenforceable if challenged .

Watson vs. Stone, 4 So. 2d 700, 703 (1941) (Buford, J., agreeing) (agreeing with the majority holding that the law does not apply to the transportation of automobiles).

Once the racist white “redeemed” governments regained control of Tennessee and Arkansas after Reconstruction ended, they banned concealable handguns and the bans were upheld in state courts. State v. Wilburn66 Tennessee (7 Bax.) 57 (1872); Fife v State, 31 Ark. 455 (1876). Given that Brown affirms the right to carry a concealed handgun, these precedents are invalid.

The supervisory case law of Brown being clear, and the exercise of a constitutional right being removed, the advisability of a TRO was obvious.

The Colorado plaintiffs also challenged Superior’s ban on open carry of handguns. Judge Moore denied the TRO’s motion against the open carry ban. As he rightly said, Brown affirms the right to bear arms, but also allows governments to decide whether the mode of transport should be open or concealed. Since 2003 in Colorado, concealed carry permits have been available to security-trained adults who pass a fingerprint-based background check. A system that prohibits open carry while allowing concealed carry does not violate the Second Amendment.

After Brown, the Supreme Court granted, quashed, and remanded the California and New Jersey 10-Round magazine forfeiture cases. GVR’d was also a case regarding Maryland’s ban on ordinary rifles. Additionally, new cases involving similar bans have been filed in various jurisdictions.

The Superior case is the first to result in a judicial opinion and could be a compelling, though not binding, precedent in cases nationwide.