The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.
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.