Federal Court Enjoins “Assault Gun” Ban in Boulder County, Colorado
By Jonathan Turley
As various states move to pass controversial new gun control laws after the decision in New York State Rifle & Pistol Association v. Bruen, one such law was just enjoined by a federal court in Colorado. In Rocky Mountain Gun Owners v. Superior, District Judge Raymond P. Moore granted a motion for a preliminary injunction to stop enforcement of the law enacted by the town of Superior, Colorado to ban on the sale or possession of a wide array of guns.
Under Section 10-9-40, “Possession and sale of illegal weapons,” an “illegal weapon” is defined as “an assault weapon, large-capacity magazine, rapid- fire trigger activator, blackjack, gas gun, metallic knuckles, gravity knife or switchblade knife.” § 10-9-20. An “assault weapon” is then defined as including a semi-automatic center-fire rifle which has the capacity to accept a detachable magazine and also has one of a list of enumerated characteristics, a semi-automatic center-fire pistol with any one of certain listed characteristics, a semi-automatic center-fire pistol with a fixed magazine that has the capacity to accept more than ten (10) rounds, all semi-automatic shotguns with any one of a list of characteristics, any firearm that has been modified to be operable as an assault weapon, and any part designed to convert a firearm into an assault weapon.
Under the standard for a TRO, the burden is quite high. The challengers must establish
“(1) a substantial likelihood of prevailing on the merits; (2) irreparable harm unless the injunction is issued; (3) that the threatened injury outweighs the harm that the preliminary injunction may cause the opposing party; and (4) that the injunction, if issued, will not adversely affect the public interest.”
Diné Citizens Against Ruining Our Environment v. Jewell, 839 F.3d 1276, 1281 (10th Cir. 2016) (quotation omitted). Even under the standard, Judge Moore found that an injunction is warranted.
Moore, an Obama appointee and the former head Federal Public Defender for Colo. and Wyoming, correctly found that the law clearly ran afoul of the controlling precedent. The Court held in District of Columbia v. Heller that the Second Amendment protects arms that are “commonly used by law-abiding citizens for lawful purposes.”
Judge Moore held that “the Court is sympathetic to the Town’s stated reasoning. However, 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.”
The Court also notes that the law has bizarre contradictions and a failure to protect citizens who owned such weapons before the critical date or move to the area after the deadline. Accordingly, Judge Moore holds:
“As previously discussed, the Court concludes that the Second Amendment encompasses the conduct addressed by this provision. And, also as previously discussed, the Court is unaware of a historical precedent that would permit the Town of Superior to impose such a regulation that would, in reality, eventually ban all assault weapons. Therefore, despite the Town of Superior’s substantial and legitimate concerns, the Court concludes that Plaintiffs are likely to prevail on the merits of their claim as to this provision.”
As I have previously written, the rush to pass such laws are likely to magnify court losses and expand precedent in favor of gun ownership. States like New York have been bottomless sources of such laws that ultimately curtailed gun control options. This is another example of such impulse-buy legislation that should be welcomed by gun rights groups as easy targets for challenges.
(TLB) published this article from Jonathan Turley with our appreciation for this perspective.
Header featured image (edited) credit: Injunction doc/www.flsa6.gov/injunctions
Professor Jonathan Turley is a nationally recognized legal scholar who has written extensively in areas ranging from constitutional law to legal theory to tort law. He has written over three dozen academic articles that have appeared in a variety of leading law journals at Cornell, Duke, Georgetown, Harvard, Northwestern, University of Chicago, and other schools.
After a stint at Tulane Law School, Professor Turley joined the George Washington faculty in 1990 and, in 1998, was given the prestigious Shapiro Chair for Public Interest Law, the youngest chaired professor in the school’s history. In addition to his extensive publications, Professor Turley has served as counsel in some of the most notable cases in the last two decades including the representation of whistleblowers, military personnel, judges, members of Congress, and a wide range of other clients.
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