Colorado's New Gun Controls Promise Dubious Public Safety Benefits and Lurking Legal Perils


Independence Institute

Yesterday Colorado Gov. John Hickenlooper signed bills imposing a 15-round limit on gun magazines and requiring background checks for almost all firearm transfers. The magazine limit, which was raised from 10 rounds in the original version of the bill, takes effect on July 1, after which it will be illegal to obtain standard magazines such as the ones that ship with the Glock 17, one of the most popular handguns in America, or the AR-15, one of the most popular rifles. Since people who own "large- capacity magazines" before then will be allowed to keep them, Coloradans have been stocking up in anticipation of the ban.

Hickenlooper acknowledges that the magazine limit imposes a burden on law-abiding gun owners but argues that "the potential for damage seems to outweigh, significantly, the inconvenience that people would have." That judgment is based on the premise that mass shooters will kill fewer people because they have to switch magazines more often. "In certain circumstances," Hickenlooper says, "someone bent on destruction, even if they're slowed just for a number of seconds, that allows others to escape."

One cannot dismiss that possibility out of hand, and supporters of magazine limits cite two mass shootings—the 2011 Tucson massacre and Colin Ferguson's 1993 rampage on the Long Island Rail Road—that stopped when the gunman was overpowered as he reloaded. At the same time, however, extra rounds might make an important difference for people using guns in self-defense, especially if they face multiple attackers. In fact, the seconds it takes to switch magazines are apt to matter more for someone who is suddenly attacked by armed criminals than for a killer who carefully plans an assault on defenseless people in a school or movie theater. Furthermore, law-abiding people are more likely to be constrained by a legal limit on magazine capacity than people bent on mass murder.

Hickenlooper also did not consider the implications of defining prohibited "large-capacity magazines" to include magazines that can be "readily converted" to accept more than 15 rounds. Critics such as Independence Institute President Jon Caldara note that most magazines include a base plate that can be removed to attach an extender holding additional cartridges. (Caldara shows how in the video at the end of this post.) Hence seemingly legal magazines can be "readily converted" to hold more than 15 rounds, which means they will be illegal to sell as of July. The upshot, Caldara warns, is that "almost all guns in Colorado will never be able to get a magazine again."

Another wrinkle highlighted by the Independence Institute: Current owners of "large-capacity magazines" must maintain "continuous possession" of them after June 30. If they transfer them to someone else—even temporarily, even to a friend or relative at a shooting range—they are committing a crime. At the same time, it is a crime that is unlikely to be detected. Although transfers of grandfathered magazines are notionally prohibited, if police encounter somebody with one they will have a hard time proving he did not legally possess it prior to the ban.

The new background check requirement applies to all transfers of firearms except "a bona fide gift or loan between immediate family members" (meaning "spouses, parents, children, siblings, grandparents, grandchildren, nieces, nephews, first cousins, aunts, and uncles"). There are also exceptions for temporary transfers at shooting ranges or while hunting. In almost all other cases people who sell, swap, or give away their guns will have to seek the services of a licensed firearms dealer so he can check whether the recipient has a disqualifying criminal or psychiatric record. The dealer will be required to keep a record of the transfer, as he would for one of his own sales.

The problem (or redeeming feature, depending on your perspective) is that there is no way to seriously enforce this requirement without gun registration. If the state does not know where all the guns are, it cannot know when one has been transferred without a background check. It seems the issue would arise only when someone commits a crime with a gun, gets caught, and fingers the guy who sold him the weapon. But as I've said before, since the categories of people who are legally barred from owning guns are ridiculously broad, spotty enforcement is preferable to "universal background checks," especially if they are combined with better databases.

Addendum: A group of county sheriffs is planning a legal challenge to the magazine limit and the expanded background check requirement, arguing that the laws violate the Second Amendment and are unconstitutionally vague under the 14th Amendment.