This Colorado Bill Would Abolish the Right to Armed Self-Defense in Many 'Sensitive Places'

Legislators are taking a page from constitutionally dubious state laws that make carry permits highly impractical to use.

After the U.S. Supreme Court upheld the right to bear arms in 2022, several states simultaneously made it easier to obtain carry permits and much harder to use them. Once they could no longer require a "special need" before allowing residents to carry guns in public for self-defense, politicians in those states worried that residents would start exercising that right. Deeming that outcome intolerable, legislators banned guns from long lists of "sensitive" locations, making it highly impractical for people to legally carry guns outside their homes even after obtaining the requisite license.

In contrast with "may issue" states like New York, New Jersey, Maryland, California, and Hawaii, where licensing officials had wide discretion to deny carry permits prior to the Supreme Court's ruling in New York State Rifle & Pistol Association v. Bruen, Colorado already was a "shall issue" state, meaning residents could obtain permits as long as they met specific, objective criteria. Colorado legislators nevertheless are taking a page from New York et al. by proposing broad restrictions on where permit holders may carry guns.

Senate Bill 24-131, introduced last month, would ban guns from "sensitive places" such as parks, playgrounds, recreation facilities, zoos, museums, libraries, "public gathering[s]," medical facilities, banks, stadiums, amusement parks, bars, pot shops, college campuses, and houses of worship (without "express permission"). Violating these restrictions would be a misdemeanor punishable by a maximum $250 fine, rising to $1,000 for subsequent offenses. While the bill is still in the early stages of consideration, Colorado Newsline notes that "Democrats hold a majority in both chambers" of the state legislature and "can easily pass their legislative priorities."

State Sen. Sonya Jaquez Lewis (D–Longmont), who introduced the bill in her chamber along with Sen. Chris Kolker (D–Centennial), says it is "just common sense," because "we really need to have a designation of where it's OK to have a firearm and where it's not." Kolker likewise invokes "common sense," saying, "I am sponsoring this bill because my constituents are tired of thoughts and prayers in response to gun violence."

Since Democrats frequently criticize Republicans who oppose stricter gun control for offering nothing but "thoughts and prayers" after mass shootings, the implication is that S.B. 24-131 would help prevent such crimes. But that expectation is highly implausible, since mass murderers are unlikely to be deterred by laws that notionally create gun-free zones. School shootings, for example, happen in settings where firearms already are prohibited under state and federal law.

"Five out of six mass shooters choose 'gun-free zones,' and the bill creates many more of them," David B. Kopel, a gun policy expert at Colorado's Independence Institute, notes in written testimony against S.B. 24-131. That estimate is based on a 2018 Washington Post analysis of mass public shootings from 2009 through 2016, which found that 86 percent happened in gun-free zones. "The bill creates many safe zones where criminals can attack without risk of armed citizens being able to fight back," Kopel says.

What about "gun violence" more generally? "Even the leading anti-gun expert witness nationally states that the 2003 Concealed Carry Act [which created the state's current licensing system] reduced violent crime in Colorado by 1.2%," Kopel says. He is referring to a 2017 study in which Stanford law professor John J. Donohue and two co-authors reported that the "effect" of Colorado's right-to-carry law on the "violent crime rate" 10 years after it was enacted was "−1.2%."

S.B. 24-131 specifically targets permit holders, since anyone who carries a concealed handgun in public is already breaking the law unless he is licensed to do so. Kopel notes that Coloradans with carry permits "are far more law-abiding than the general population." He says they are "39 times less likely to be arrested than someone without a carry permit." That calculation is based on the number of permits revoked because of arrests in 2020. Kopel adds that "data from other states are similar," indicating that "persons with a license to carry are very highly law-abiding compared to persons without permits."

In contrast with the dubious public safety benefits of S.B. 24-131, its impact on the right to armed self-defense in public affirmed by Bruen would be substantial. Notably, the bill applies to "adjacent parking areas" as well as the "sensitive" locations themselves. It makes an exception for "firearms stored in locked containers in vehicles." But on its face, that seems to mean a carry permit holder who visits, say, a bar, a museum, or a government office would already be violating the law when he pulls into the parking lot unless he had previously locked up his gun, which he would have to do in a location that is not deemed "sensitive."

Kopel describes the bill as "ridiculously overbroad." For example, he says, "it bans licensed carry from the entire parking lot of a shopping mall" if the mall contains a single "tavern" or "one small branch bank." He also notes that "a woman who goes jogging or walking in parks in early mornings would be prevented from defending herself." More generally, he says, the bill "guarantees that violent attackers will be safe from the danger of being shot by armed citizens, as long as the attackers choose to attack in the locations specified in the bill."

A similar California law, currently on hold thanks to a preliminary injunction that the U.S. Court of Appeals for the 9th Circuit allowed to take effect in January, likewise classifies banks as a "sensitive" location. The plaintiffs in that case, Carralero v. Bonta, noted that the state "provided no evidence of a single bank robbery or other crime at a bank committed by a CCW permit holder." According to the state's reply brief, that is irrelevant, because "the Supreme Court has never suggested that sensitive places restrictions must be limited to those locations where there have been crimes committed by a concealed carry license holder."

Given that "there is no instance of a licensed handgun carrier committing a crime at a bank" in "the entire history of the United States," Kopel wonders, "what is the logic" of "imposing a prohibition, over-riding the decisions of many banks? What is the logic of prohibiting self-defense in every inch of a shopping mall parking lot just because the mall includes one small branch bank?"

Under Bruen, in any case, courts cannot uphold a gun control law by weighing its purported public safety benefits against its restrictions on Second Amendment rights. The government has the burden of showing that a law is "consistent with this Nation's historical tradition of firearm regulation."

Courts applying that test to location-specific gun bans have reached varying conclusions. But federal judges in California, Hawaii, Maryland, New Jersey, and New York have deemed at least some of those restrictions unconstitutional under Bruen. And even the U.S. Court of Appeals for the 2nd Circuit, which in December upheld several of New York's "sensitive location" restrictions, rejected the state's default rule against guns in all businesses open to the public unless the owner posts "clear and conspicuous signage" allowing them or "has otherwise given express consent."

That provision "functionally creates a universal default presumption against carrying firearms in public places, seriously burdening lawful gun owners' Second Amendment rights," the unanimous 2nd Circuit panel said. "That burden is entirely out of step with that imposed by the proffered analogues, which appear to have created a presumption against carriage only on private property not open to the public."

The Colorado bill, unlike California's law, does not include a sweeping rule like that. But the cumulative burden of its restrictions would pose a serious obstacle for permit holders who want to carry guns for self-defense in many quotidian contexts.

Given Democratic control of the state legislature, Colorado Newsline says, "the most effective opposition to any gun law reforms will likely come from groups that challenge the legislation in court" under Bruen. Jaquez Lewis is unfazed by that prospect.

The senator notes that resolution of Carralero v. Bonta "could take another one or two years." Although S.B. 24-131 claims its restrictions are "consistent with the second amendment," its supporters think waiting to see whether the 9th Circuit agrees would be reckless. "We didn't want to wait two years," Jaquez Lewis says, "because we know how many incidents of gun violence occur in Colorado in one year—way too many." Given the mismatch between that problem and her proposed solution, the logic is hard to follow.