This article was first published by the McAlvany Intelligence Advisor on Monday, June 30, 2014:
With her ruling that Colorado's new gun laws are constitutional, U.S. District Court Judge Marcia Kreiger didn't let logic interfere with her thought process. She ruled that it was OK for the Colorado legislature to restrict magazine capacities to 15 rounds because the impact on precious rights was so small. In addition, she ruled that background checks on all private sales was constitutional because other states had passed similar laws and other courts had ruled them constitutional.
The Colorado Shooting Sports Federation, one of the several plaintiffs in the case which included many of Colorado's county sheriffs who joined as individuals, smelled a rat without locating where it was in her 50-page ruling issued last week:
The significance of the Second Amendment as a core portion of the Bill of Rights and its importance has virtually no reference in the decision.
Most noteworthy was the court's focus on the important government interest at hand while ignoring the complete absence of support for [it] in the legislative record.
That's true as far as it goes. She quoted the Second Amendment in her ruling and then for all intents and purposes ignored it, especially that part about “shall not be infringed.” Instead she made passing reference to the precious rights that allow citizens to defend themselves, and then wrote off the incursions as acceptable, whether they made any sense or not:
[This] court does not act as a super-legislature to determine the wisdom or workability of legislation. Instead, it determines only whether legislation is constitutionally permissible….
The judge must only compare the public policy adopted by the legislature against the constitutional minimums that protect individual rights….
This Court will not express a qualitative opinion as to whether a law is “good” or “bad,” “wise” or “unwise,” “sound policy” or a “hastily-considered overreaction.”
After determining that most of the plaintiffs had standing to sue on the matter, Krieger summarized the opposing points of view:
Plaintiffs argue that by limiting magazines to 15 rounds or less, this statute impairs an individual's Second Amendment “right of self-defense.”
Colorado reflexively responds that because people can still defend themselves, no Second Amendment right is impaired.
She noted accurately that the new laws are universal in scope:
This ban applies to every person in Colorado, in every venue, and for every use, including self-defense inside and outside of the home.
It impacts a large number of semiautomatic firearms, both handguns and rifles. Viewed in this light, the scope of the statute is broad, and it touches the core of an individual right guaranteed by the Second Amendment….
But they are modest in impact:
Despite such broad scope, however, the statute's impact on a person's ability to keep and bear (use) firearms for the purpose of self-defense is not severe….
Thus, this statute does not prevent the people of Colorado from possessing semiautomatic weapons for self-defense, or from using those weapons as they are designed to function.
The only limitation imposed is how frequently they must reload their weapons.
Notice how she diverts the conversation away from a plain reading of the Second Amendment and instead directs it to how little the law will inconvenience a gun owner.
Notice also the flaw in her argument on which this conclusion is based:
There is no dispute that when a shooter [attacking innocents] pauses to reload a weapon or shift to another weapon, there is [a] pause….
This gives victims an opportunity to hide, escape, or attack the shooter. This pause also gives law enforcement or other armed individuals an opportunity to act.
Here's her error:
The limitation on magazine size makes the critical pause mandatory because continued use of the gun requires reloading or switching to another gun….
A pause, of any duration, imposed on the offensive shooter can only be beneficial, allowing some period of time for victims to escape, victims to attack, or law enforcement to intervene.
The error is in her assumption that the shooter will follow the rules, or be forced to follow them, by being limited by the Colorado legislature's ruling that no one may own a magazine that contains more than 15 rounds. By her own admission, he is an “offensive shooter” and so he is highly unlikely to worry about such niceties of following the rules.
So her statement that the ban “applies to every person in Colorado, in every venue, and for every use” is simply false. It doesn't apply to criminal shooters, nor can it. It only applies to law-abiding citizens. In sum, the law impinges on the rights of law-abiding citizens in order to punish in some unknown fashion a criminal who doesn't follow the rules!
There are other flaws in her arguments, especially those concerning background checks. She holds that since other states have passed such laws and other courts have ruled such laws constitutional, then Colorado's must be, too. Here is Her Honor on that:
Logically, if the government can lawfully regulate the ability of persons to obtain firearms from commercial dealers, the same power to regulate should extend to non-commercial [private] transactions, lest the loophole swallow the regulatory purpose.
Never once does she consider the word “infringe” in her ruling. The definition of infringe means to violate, transgress, encroach, or trespass upon. The Latin root of the word is infringere which means to break or weaken. Instead she concentrates on how little the new laws will really affect the average citizen.
One wonders if the Founders would be impressed with the argument that infringements of the Second Amendment are allowed because they are modest.
If Abraham Lincoln were alive he might once again agree that Krieger's arguments supporting the unsupportable are “as thin as the soup that was made by boiling the shadow of a sparrow that had starved to death.” As would H. L. Menken, who would no doubt hold that Krieger's “explanations exist; they have existed to all time; there is always a well-known solution to every human problem – neat, plausible, and wrong.”
Plaintiffs are appealing her decision. Perhaps the next court will avoid such disingenuousness as Krieger engaged in, and get to the real meat of the matter: do these laws infringe on people's rights, or don't they?
USAToday: U.S. judge upholds Colorado gun restrictions
Chicago Tribune: Federal judge upholds Colorado gun laws, dismisses lawsuit
SFGate: Federal judge upholds Colorado gun restrictions
Huffington Post: Colorado Gun Restrictions Upheld By Federal Judge
Denver Post: Federal judge upholds Colorado's new gun-control laws
Abraham Lincoln quote on sparrow