A federal judge in Colorado overruled a local assault weapon / high capacity magazine ban, based on the NYSRPA decision. The judge is an Obama appointee.

Where's Modern Day Savage?

quote:

Originally posted by BBMW:
Where's Modern Day Savage?

Woohoo! Hell ya!

I'm right here... with a big good ol' boy grin on my face.

Firstly, thanks for posting this, because I've been listening to local radio and hadn't heard a single news blurb on this ruling. I'll do a little digging tomorrow and see if I can find local news on this.

Not mentioned in the video is that while the standard mag. cap ban is statewide, the so-called "assault weapons" ban has only been passed in a few cities, including Boulder and Denver, and so I would assume that the Superior ruling will be extended to not just the other ban cities, but statewide.

I can hear Democrat heads in the state legislature exploding now, and I have no doubt they will be plotting their work around shortly... but I am savoring the moment.

If we ever meet I'll be buying you a beverage of your choice.

Well, we now know that there's a federal judge at the district level somewhere in CO that will hew to the NYSRPA ruling. Someone needs to file a suite against all your state level restrictions that have been slathered on since your state government went to the dark side, that will end up in this judge's court room.

Apparently the House with their AWB have completely ignored Bruen and Heller and forged ahead with an open challenge to SCOTUS authority. Hopefully that bill never gets out of the House let alone the Senate.

Not to throw any cold water on this ruling, but the judge ruling in the case only issued a Temporary Restraining Order (TRO), and so this case will undoubtedly be eventually appealed upwards to the 10th Circuit court.

The author of the piece below is noted Constitution and 2A lawyer David Kopel, one of the lawyers who argued in support of the SCOTUS Heller case. There is some interesting historical gun control measures that apparently influenced this case, in addition to previous rulings on challenges to these bans.

[Note: hyperlinks found at linked website article.]

Emphasis added in bold.

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Colorado U.S. District Court issues TRO against magazine and gun ban

Ruling against town of Superior's law is the first post-Bruen decision on arms bans

DAVID KOPEL
7.22.2022 9:02 PM

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 town of Superior, Colorado, in Boulder County. The case is Rocky Mountain Gun Owners v. Superior.

Lead attorney for the plaintiffs was Barry Arrington, one of Colorado's top lawyers on education law, and now the victor in 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 formerly was a corporate lawyer (Davis, Graham and Stubbs, Denver), and then head Federal Public Defender for Colo. and Wyoming. He was appointed to the bench by President Obama in 2013, and confirmed unanimously.

Like several other towns in Boulder County, Superior recently outlawed semiautomatic centerfire rifles that have at least one supposedly bad characteristic, such as an adjustable stock; various semiautomatic shotguns; various semiautomatic handguns; and magazines with a capacity of over 10 rounds.

It was obvious that such arms are "commonly used by law-abiding citizens for lawful purposes," which is the Supreme Court's rule from District of Columbia v. Heller (2008) for which arms are protected by the Second Amendment. First, the Colorado Attorney General and plaintiffs in an earlier case challenging the state of Colorado's ban on magazines over 15 rounds had so stipulated. Colorado Outfitters Ass'n v. Hickenlooper, 24 F. Supp. 3d 1050, 1068 (D. Colo. 2014), vacated in part on other grounds and remanded, 823 F.3d 537 (10th Cir. 2016). (I represented 55 Colorado Sheriff plaintiffs in the case, which ended up with the 10th Circuit declaring that neither the Sheriffs nor the many other individual and organizational plaintiffs had standing.) Commonality was also found in the undisputed facts set forth in Fourth Circuit Judge Traxler's dissenting opinion in Kolbe v. Hogan, 849 F.3d 114, 153-55 (4th Cir. 2017). The opinions of many other Circuit Courts provide additional, irrefutable proof of commonality; the banned firearms number in the millions, at least, and the banned magazines comprise over half of all magazines.


Pursuant to the Supreme Court's recent decision in New York State Rifle & Pistol Association v. Bruen, courts are supposed to decide Second Amendment cases on text, history, and tradition. Judge may not decide based on their own opinions about good policy, nor should they defer to legislative policy judgements. The policy balancing was already conducted by the American people when they adopted the Second Amendment.

In Bruen's historical approach, the most important periods are the Founding Era and Reconstruction (when the Fourteenth Amendment made the Second Amendment enforceable against state and local governments). English history is relevant to the extent that is shows an unbroken tradition that was adopted in America and continued to the Founding. Colonial history is also relevant. So is 19th century history, and (Reconstruction excepted), the earlier the better. The late 19th century is weaker, and the 20th century is far too late to show a historical tradition that could override the text of the Second Amendment.

Judge Moore wrote: "the Court is unaware of historical precedent that would permit a governmental entity to entirely ban a type of weapon that is commonly used by law-abiding citizens for lawful purposes, whether in an individual's home or in public."

To be precise, there are a few precedents pre-1900, but none are valid any longer.

After incidents in which armed black people deterred lynch mobs, Florida in 1893 enacted a license requirement an exorbitant bond to carry or possess a "Winchester rifle or other repeating rifle." Fla. Laws 1893, ch. 4147, §1. In a 1941, a Florida Supreme Court Justice explained that the statute was enacted to control black laborers:

The statute was never intended to be applied to the white population and in practice has never been so applied…. [T]here has never been, within my knowledge, any effort to enforce the provisions of this statute as to white people, because it has been generally conceded to be in contravention of the Constitution and nonenforceable if contested.

Watson v. Stone, 4 So. 2d 700, 703 (1941) (Buford, J., concurring) (agreeing with majority holding that the statute does not apply to automobile carry).

Once "redeemed" white racist governments regained control over Tennessee and Arkansas after the end of Reconstruction, they banned concealable handguns, and the bans were upheld by state courts. State v. Wilburn, 66 Tenn. (7 Bax.) 57 (1872), Fife v. State, 31 Ark. 455 (1876). Given that Bruen affirms the right to carry a concealed handgun, these precedents are invalid.

The controlling case law of Bruen being clear, and the exercise of a constitutional right being suppressed, the appropriateness of a TRO was plain.

The Colorado plaintiffs also challenged Superior's ban on open carry of handguns. Judge Moore denied the TRO motion against the open carry ban. As he accurately stated, Bruen affirms the right to bear arms, but also allows governments to decide whether the mode of carry shall be open or concealed. Since 2003 in Colorado, concealed carry permits have been available to adults with safety training who pass a fingerprint-based background check. A system that bans open carry while allowing concealed carry does not violate the Second Amendment.

After Bruen, the Supreme Court granted, vacated, and remanded California and New Jersey cases on the confiscation of magazines over 10 rounds. Also GVR'd was a case about Maryland's ban on common rifles. Additionally, new cases on similar bans have been filed in a variety of jurisdictions.

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

Excellent news !!! Praise God in the Highest !!! God Bless !!

Now get rid of the pointless magazine capacity limit so I can fully participate in matches at the nice Cameo range!

I'm just glad I no longer have to listen to some dumb idiot say, "It only arms the National Guard."

It's an individual right, and always was.

I want to be able to have a short barrel rifle and suppressor without having to register with the ATF and paying a stamp tax.

It's going to be interesting to see how the 'historical precedent' measure plays out. Questions like when does history begin and how long does it last could lead to some fun challenges to things like California's absolute ban on privately-owned automatic weapons. That, in turn, would give anyone wanting to challenge the NFA a few different potential arenas in which to develop their arguments.

Yeah, I know - you can count on some of those state courts tying themselves in knots to create bad precendents that are difficult to appeal. I don't think the federales are intimidated by state court decisions, in that they either support the decisions from a social and political perspective or they show no fear in overturning badly formed decisions. I also think that, given the political excitement around guns, whoever loses a gun control case is going to appeal it up to as high a court as they can get it into.

So. Temporary Restraining Order, Schmemporary Restraining Order. The whistle's been blown, the ball's been kicked, and its wonderful to see it all begin after so many years of nothing but bad news and an occasional chorus of pessimism from those who should know that you don't get nothin' if you don't try.

Checks and balances.

I love it when a plan comes together. (puffs cigar)