GREELEY, Colo. â A sheriff in Colorado who spearheaded a lawsuit against the state’s radical gun laws, adopted by Democrats in 2013 and this week upheld by a federal judge, said the case is not over, vowing to take the battle all the way to the highest court in the land if necessary.
“These laws are unconstitutional and unenforceable due to the way they are written,” Weld County Sheriff John Cooke said.
This week’s ruling came from U.S. District Court Judge Marcia Krieger, who presided over a case filed by a majority of Colorado’s sheriffs as well as citizens, hunting advocates and Second Amendment groups.
Krieger claimed that prior to 2008 the Second Amendment was not recognized as an individual right and that the laws do not place an unreasonable burden on those rights now in Colorado.
She contended that since there is no evidence law enforcement officials are enforcing the law as plainly written, there is no threat to Second Amendment rights.
The lawsuit was filed after Democrat lawmakers, without any GOP support, passed a series of gun-control laws that are among the most restrictive in the nation. The laws being challenged included a ban on all magazines that hold more than 15 rounds or that can be “readily converted” to hold more than 15 rounds as well as a requirement that a background check be conducted on any “gun transfer” lasting more than 72 hours.
The sheriffs sued, contending the laws are unenforceable. For one thing, they say that since magazines do not have a date of manufacture on them, there is nothing that prevents a state resident from buying a 30-round magazine in Wyoming and then claiming he bought it before the ban. Law enforcement has no way to verify the claim. Those who purchased magazines before the ban are grandfathered in as long as they maintain “continuous possession” of the magazine.
However, Cooke, who is running for state senator due to being term-limited as sheriff, highlighted the absurdity of the laws by handing one of his 30-round magazines to a fellow sheriff and stating that he has just broken the law since the magazine is no longer in his continuous possession.
“Most magazines have a removable plate to aid in cleaning,” he pointed out. “Once this plate is removed, the magazine can be made to hold additional rounds. In other words, almost every magazine out there violates the law and is illegal.”
Cooke explained sheriffs were not allowed to present much evidence about the effects of the law during arguments in court.
“The judge ruled we did not have standing as sheriffs in our official capacity, and as such we were not able to show how the magazine ban affected nearly every magazine,” Cooke said. “As such we could not testify as sheriffs as to how the law was putting people in harm’s way for fear of prosecution and arrest.”
He said the problem is that courts don’t always have justice as their goal.
“The court system is not about the truth. It’s not about justice; it’s about process and procedure. That’s all the courts are for and as such we weren’t able to get in a lot of the information we wanted,” he said.
The background check provision is also problematic, the critics say, because it isn’t limited to sales of firearms but applies anytime the weapon is transferred to another person for more than 72 hours.
One of the plaintiffs, Dylan Harrell, operates a business sighting in and installing scopes on rifles. Harrell noted that at times he has had a client’s gun for more than 72 hours, which would break the law, because no background check was conducted.
Krieger dismissed the issue saying in her ruling that if he had the gun for more than three days “it was not clear that he did so out of necessity rather than convenience.”
“Assuming Mr. Harrell could regularly perform the scoping or sighting of the firearm within the 72-hour period and return the weapon, he would suffer no injury from the operation of the statute.”
However, Krieger failed to take into account that in many of the state’s rural areas, a gun owner may not come back into town for several days, critics said.
The judge also attempted to downplay Harrell’s concern about violating the law by stating that since the gun owner gave him permission to keep the weapon, he would probably not be prosecuted.
“In addition, assuming that he kept a firearm for longer than 72 hours with the owner’s permission while performing maintenance duties on it, he has not shown any credible threat that he would be prosecuted for not first obtaining a background check,” Krieger wrote.
The judge made a similar statement regarding concerns by the state’s rural residents that they could face arrest for leaving their guns in their truck or in their house while they were gone for more than 72 hours if their hired hand had access to them. Krieger wrote there is no evidence of anyone being prosecuted for this type of transfer, and it is unlikely such a thing would happen. Further, Krieger noted that Attorney General John Suthers has issued guidelines stipulating that giving a magazine or a gun to a person for repair did not violate the “continuous possession” clause, and, therefore, the laws were not an undue burden on the Second Amendment rights of the state’s residents.
Cooke said despite what the judge said, the law does not exempt a person from getting a background check just because the gun owner said so.
“It’s not about unlikeliness, what happens if somebody does get arrested for giving their magazine to someone on the range or lets someone have their gun for over 72 hours without the background check,” Cooke said. “There’s still a chance because it is still the law and somebody could get charged for this. She’s speculating that prosecutors won’t prosecute in the instances she cited.
“Regardless of what Suthers said, his technical guidelines are just that, guidelines. They do not have the force of law,” Cooke said.
Cooke argued that the sheriffs’ refusal to enforce the law has backed up her claim that the law is reasonable.
“In a way we didn’t help our case by the fact that to date that not a single person has been arrested for breaking the law, but that’s more because of us refusing to enforce the law as written than the plain language of the law.”
WND reported two Democrat lawmakers were thrown out of office by voters over the gun control measures. A third quit just before a recall vote so that her party could pick a replacement, enabling the Democrats to avoid losing control of the state Senate.
WND reported the Colorado gun-control measures were encouraged by the White House and viewed an a stepping stone to more restrictions.
State Sen. Evie Hudak reportedly was following the White House line on gun control when she sparked a controversy. In a legislative hearing, she scolded a witness opposing a gun restriction.
Amanda Collins, 27, of Reno, Nev., told her story of being assaulted and explained that had she been carrying a concealed weapon, the incident might have ended differently.
Hudak told Collins: “I just want to say that, actually statistics are not on your side even if you had a gun. And, chances are that if you would have had a gun, then he would have been able to get that from you and possibly use it against you.”
Hudak continued, speaking over the committee witness: “The Colorado Coalition Against Gun Violence says that every one woman who used a handgun in self-defense, 83 here are killed by them.”
Finally able to resume her testimony, Collins said: “Senator, you weren’t there. I know without a doubt [the outcome would have been different with a gun].
“He already had a weapon,” she told the meeting of the Senate State, Veterans and Military Affairs Committee. “He didnât need mine.”
Other Democrats also admitted Vice President Joe Biden called them to lobby for the gun bills.