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Colorado county is asking for a lawsuit with proposed gun control ordinances

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I hope the taxpayers in Boulder County, Colorado are ready to pay some attorneys fees, because several new ordinances set to be imposed by county commissioners are sure to face a court challenge and face long odds of survival.

The Supreme Court just said in its decision in NYSPRA v. Bruen that in order to survive a constitutional challenge, gun control laws must fall within the historical scope of gun regulations as well as comport with the text of the Second Amendment itself. That’s definitely not the case with the new restrictions unveiled in Boulder County on Wednesday.

The five measures include limiting magazine capacity to 10 rounds instead of Colorado’s 15-round limit; extending the waiting period after purchasing firearms from three to 10 days; banning guns from county property and “sensitive places” such as bars; prohibiting firearms without serial numbers; and raising the minimum gun purchasing age from 18 to 21.

If the proposals pass, Boulder County will join other Colorado cities including Denver and Louisville in what some lawmakers hope to be a wave of local action across the state.

“It’s exactly what we intended when we passed the law,” said Stephen Fenberg, the Colorado Senate president who sponsored the 2021 bill. “It’s heartening.”

It’s also going to be pretty short-lived, at least in most cases. Just last week the Supreme Court vacated decisions upholding 10-round magazine bans in California and New Jersey and ordered a re-hearing of the cases in the Ninth and Third Circuits, as well as vacating and remanding a Fourth Circuit Court of Appeals decision that found Maryland’s ban on so-called assault weapons in compliance with the Second Amendment. That’s not a guarantee that SCOTUS will overturn those laws when the cases reach them for a second time, but it’s a pretty good indication that the Court views those laws with plenty of skepticism.

Bans on gun sales to under-21s could also be on the Supreme Court’s radar before long, with challenges pending in both the Ninth and Eleventh Circuits. In fact, a three-judge panel on the Ninth Circuit recently overturned California’s ban on sales of so-called assault weapons to those under the age of 21, while a trial judge in Florida upheld that state’s ban on all gun sales to under-21s, but expressed discomfort and doubt about the underlying precedent requiring him to do so.

The expanded list of “sensitive places” in Boulder County is also ripe for judicial review if it goes into effect. Not only is lawful concealed carry banned from all government buildings and within 500 feet of polling places, it’s also banned in all public parks, restaurants that serve alcohol, “healthcare faciliities”, theaters, and grocery stores. Those are pretty broad restrictions, and

A murderous loser demonstrated with deadly effectiveness the utter uselessness of gun-free zones when he slaughtered ten people and injured two others in a Boulder grocery store last year, and yet the county commissioners are doubling down on the idea that we’ll all be safer when we’re all unable to protect ourselves or others in public without committing a misdemeanor offense. Can they explain how a madman set on murdering as many innocent people as possible is going to be dissuaded in the slightest by the possibility of a fine and a few days in jail if he’s caught carrying a gun where he’s not allowed? If so, I’d love to hear it.

The good news is that there’s still time for the Boulder County Commission to do the right thing and pull these ordinances from consideration. A final vote on the five ordinances is expected on August 2nd, and the public will have an opportunity to sound off in person before commissioners cast their deciding vote.

Honestly, though, even if there are far more opponents than supporters of the ordinances the measures are gonna get approved by the county commission. They’re too invested in the idea of banning their way to safety to back off now, and it’s not like the attorneys’ fees the county is likely to have pay when it loses its case is going to come out of commissioners’ paychecks. It’ll be taxpayers on the hook for the commission’s willful decision to continue treating the right to keep and bear arms as a privilege to be doled out by elected officials.

Yale law prof suggests new route to carry ban, but is it constitutional?

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Short answer? Almost certainly not, based on what the Supreme Court said last week in New York State Rifle & Pistol Association vs. Bruen, but as we’ve already seen in states like New York, New Jersey, and California, anti-gun activists aren’t letting a little thing like a Supreme Court decision get in the way of their desire to disarm average, everyday Americans.

So what is Ian Ayres’ big idea? Basically, he wants to flip the current law in the vast majority of states to make concealed carry banned on private property unless the owners of that property decide to allow it.

You might be surprised to learn that when you ask someone to come and repair your dishwasher, they can legally carry a concealed weapon into your kitchen unless you expressly object. In all but three states and D.C., any visitor can, by default, carry a firearm into your home without your explicit permission. The repairman has a Second Amendment right to bear arms, but you have a right to control whether people carry guns onto your land.

A central attribute of property ownership is the right to exclude unwanted people from your land. Forty-seven states fail to adequately protect this right of landowners to control their property because they provide the wrong default rule regarding the right of invitees to bear arms. Property owners cannot make an informed choice if they don’t know they have to object (more than two-thirds of people are unaware of these default rules). And it is hard for a property owner to know that she needs to object when the objectionable firearm is concealed.

The same problem exists regarding private commercial land. All 50 states permit individuals to carry their firearms into private retail establishments by default. Private businesses must post “No Guns” signs to make their stores gun-free, and these signs must often meet strict requirements. Many retailers fear customer backlash if they post signs either restricting or permitting gun carry in their stores. So, they are inclined to stick with a state’s default rule regardless of their preferences.

If this idea sounds familiar it’s because New York Gov. Kathy Hochul has decided to implement this idea, at least when it comes to businesses, as part of plan to defy the Supreme Court and make it as difficult as possible for New Yorkers to exercise their right to armed self-defense in public.

There are two big problems with Ayers idea; one constitutional and one practical. As Ayers himself notes, every state in the union says that if you want to ban guns from commercial properties you can do so, but you must provide notice to the public in some form or fashion. 47 out of 50 states take the same view when it comes to non-commercial private property. These laws are widespread and longstanding, and there is nothing in the history or tradition of the right to keep and bear arms that supports what Ayers (and Hochul) are demanding. Given the negative implications that these policies would have on the right of the people to bear arms for self-defense in public and the fact that they have no similar analogues in American history, I don’t think there’s any way that they would be upheld by the Supreme Court.

From a practical perspective the idea is just as flawed. Ayers acknowledges that “it is hard for a property owner to know that she needs to object when the objectionable firearm is concealed,” and that wouldn’t change if all privately-owned spaces become gun-free zones by default. It would be just as difficult to determine if someone was carrying in violation of the law, but we’d also likely see far more individuals inadvertently doing so because of the reversal of the longstanding status quo. Ayers idea wouldn’t stop a single violent criminal, but would turn a lot of otherwise law-abiding citizens into accidental outlaws because they would no longer be able to legally carry in most of the places where they’ve been able to exercise their right to bear arms in the past.

Part of Ayers’ problem is that he, like many other gun control fans, still just doesn’t want to accept that the right to keep and bear arms is a real right. In his piece at The Hill, the Yale professor claims that the Second Amendment is about “individuals’ ability to defend their homes by arming themselves.” That is simply not true. The right to keep and bear arms is fundamentally about protecting yourself, not your property, and as the Supreme Court made clear last week, the right of self-defense doesn’t stop once you set foot outside your front door. If private property owners want to ban lawful carrying on their premises they can do so, but in a country with a right to keep and bear arms, the default position has historically respected that right and must continue to do so in the future.

New Jersey governor wants concealed carry banned in restaurants and more

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Justice Clarence Thomas’ opinion in NYSPRA v. Bruen was pretty clear when it came to “may issue” states trying to get around the Court’s ruling by declaring broad swathes of the public sphere “sensitive places” off-limits to concealed carry; it’s not going to work. The majority opinion notes that “sensitive places” cannot broadly encompass most of the places where law-abiding citizens may want to bear arms in self-defense, and instead suggests that these places must be “exceptional” in nature, because we don’t have a history or tradition of “broadly prohibiting the public carry of commonly used firearms for self-defense.” Bans on carrying firearms in courthouses, government buildings, and even polling places may pass constitutional muster, according to Thomas, but again, those places are going to be the exception rather than the rule.

Not surprisingly, New Jersey Gov. Phil Murphy has given Thomas and the rest of the Court the middle finger in his response to the Bruen decision, calling on legislators to pass sweeping new restrictions on where concealed carry holders can lawfully bear arms and utterly ignoring what SCOTUS had to say about “sensitive places”.

The governor wants to expand New Jersey’s gun-free zones to include locations such as hospitals, public transit, bars and restaurants.

Murphy signed an executive order Friday that directs all state departments and agencies to review statutes, rules and regulations to determine where New Jersey can limit firearms. The governor also intends to work with the state Legislature on expanding the number of places where people cannot carry guns.

Places up for consideration include the following, according to Murphy:

  • High-density locations, including stadiums and arenas, amusement parks, bars and restaurants where alcohol is served and public transit.
  • Places with “inherently vulnerable populations,” such as day care and child care facilities, hospitals and other health care centers, long-term care facilities and nursing homes.
  • Locations of First Amendment-protected activities, such as anywhere governmental bodies may meet, polling places, courthouses and police stations and places where demonstrations, protests or licensed gatherings may occur

I suspect the courts might go along with labeling a couple of these places as “sensitive”, including stadiums and amusement parks along with some government buildings, but blanket bans on lawful carrying in restaurants, public transit, and any place where a protest, demonstration, or licensed gathering “may” occur isn’t going to fly. Private property owners are free to declare their businesses gun-free zones if they want, but based on the Bruen decision the government is tightly limited when it comes to labeling spaces in the public sphere “sensitive.”

Then there’s the fact that the governor’s proposal would hit working-class gun owners the hardest. Don’t have a car and have to rely on public transportation? You’re out of luck when it comes to being able to protect yourself. If you can’t carry while you’re on public transportation you also can’t carry once you get off the bus or train, which would mean that many New Jersey residents would be unable to protect themselves on their way to or from work simply because they rely on public transit to get around.

Of course, based on Murphy’s comments its clear that he doesn’t really care about hurting gun owners or what SCOTUS had to say because he still doesn’t view the Second Amendment as a real right.

“A right to carry a concealed weapon is, in actuality, a recipe for tragedy,” Murphy said. “Moreover, it is not in line with our long-standing New Jersey values — values which have always supported the 2nd Amendment through carefully crafted and equally as carefully enforced laws to ensure that guns do not needlessly proliferate in our communities.”

It’s laughable to claim that New Jersey supports the Second Amendment when residents must beg permission to both keep a gun in the home and to carry one in public. New Jersey’s laws start with a presumption that you don’t have the right to keep and bear arms, and unless or until you can convince the authorities otherwise you must be an unarmed citizen or else risk felony charges if found with a gun.

But pay attention to Murphy’s last comment as well. The right to keep and bear arms is a fundamental right enjoyed by all law-abiding Americans, and when the New Jersey governor talks about trying to keep guns from “needlessly” proliferating what he’s really talking about is his desire to chill the exercise of a fundamental right and to artificially suppress the number of New Jersey gun owners because he doesn’t think that they should own a gun.

Well, that’s not Phil Murphy’s decision to make, and if lawmakers follow his lead and impose these sweeping new restrictions on where law-abiding residents can carry he’s going to lead New Jersey into a costly and time-consuming fight that’s going to result in a Second Amendment smackdown for the Garden State. With Murphy allegedly thinking about running for president in 2024, though, the governor probably sees a court fight as an opportunity to preen for the cameras and pose for progressives as a stalwart fighter for “common sense” gun controls. It’s free publicity, at least for him. The folks who will really bear the cost of his anti-gun stunt are those law-abiding New Jersey residents who simply want to exercise their right to protect themselves and their loved ones outside the home.

2A attorney warns Denver: lose your ban on concealed carry in parks or prepare to be sued

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Will the Denver City Council listen to what Dave Kopel has to say? Well, they ignored his advice a few weeks ago when they passed new regulations banning the lawful carry of firearms in public parks and government-owned buildings, so I kind of doubt that they’ll pay more attention now, but the attorney and Second Amendment scholar is right that the Supreme Court’s decision last week in New York State Rifle & Pistol Association v. Bruen is bad news for the types of far-reaching bans that the city (and several suburbs) have recently enacted.

Kopel told Denver weekly Westword that the Bruen decision was an “outstanding” result for the exercise of our right to keep and bear arms, but warned that anti-gun politicians like the ones in charge in Denver are going to be wasting a lot of taxpayer dollars if they continue trying to broadly stop law-abiding citizens from carrying in self-defense.

“The Denver ban on guns in government buildings is okay. The ban on guns in city parks is definitely not,” says David Kopel, research director at the libertarian Independence Institute. “They should repeal the parks ban pretty damn quick, or somebody, not me, may well sue them and make some easy money in attorney’s fees.”

… Since the ruling did not specifically mention city parks, there’s no specific indication of how it could affect Denver’s concealed-carry ban in parks. But Kopel thinks the connection is clear.

“To start with, every place that seems to be sensitive is a building, and not just a general building, but a building that has something special about it. Is Washington Park or the Denver parkland near Evergreen, is that analogous to a courthouse, a legislative assembly, a polling place, a school or a government building?” asks Kopel. “Lawyers can try to make that argument, but I think it’s pretty hard to make an analogy there.”

That’s why he thinks Denver City Council should repeal the parks aspect of the new ordinance as soon as possible rather than face a lawsuit. “I think their chances of success are quite slender,” Kopel says. “It’s just going to rack on the taxing meter on the fees that they’re going to have to pay.”

Denver city council members might not have to worry much about paying for their own attorneys, especially if gun control groups offer to defend the city’s ordinance free of charge, but when they lose their case and have to pay the attorneys fees for the plaintiffs who challenge these new laws, taxpayers are going to be on the hook.

And yes, I agree with Kopel that this is going to be a case of “when,” not “if”. The majority opinion authored by Justice Clarence Thomas specifically addressed the idea of cities or states declaring broad swathes of publicly accessible places as “sensitive spaces” where concealed carry can be banned, and made it clear that those types of bans aren’t going to pass constitutional muster, in part by citing the work of a Second Amendment scholar named… Dave Kopel.

Although the historical record yields relatively few 18th- and 19th-century “sensitive places” where weapons were altogether prohibited—e.g., legislative assemblies, polling places, and courthouses—we are also aware of no disputes regarding the lawfulness of such prohibitions. See D. Kopel & J. Greenlee, The “Sensitive Places” Doctrine, 13 Charleston L. Rev. 205, 229–236, 244– 247 (2018); see also Brief for Independent Institute as Amicus Curiae 11–17.

We therefore can assume it settled that these locations were “sensitive places” where arms carrying could be prohibited consistent with the Second Amendment. And courts can use analogies to those historical regulations of “sensitive places” to determine that modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible.

Although we have no occasion to comprehensively define “sensitive places” in this case, we do think respondents err in their attempt to characterize New York’s proper-cause requirement as a “sensitive-place” law. In their view, “sensitive places” where the government may lawfully disarm law-abiding citizens include all “places where people typically congregate and where law-enforcement and other public-safety professionals are presumptively available.”

It is true that people sometimes congregate in “sensitive places,” and it is likewise true that law enforcement professionals are usually presumptively available in those locations. But expanding the category of “sensitive places” simply to all places of public congregation that are not isolated from law enforcement defines the category of “sensitive places” far too broadly. Respondents’ argument would in effect exempt cities from the Second Amendment and would eviscerate the general right to publicly carry arms for self-defense that we discuss in detail below. Put simply, there is no historical basis for New York to effectively declare the island of Manhattan a “sensitive place” simply because it is crowded and protected generally by the New York City Police Department.

According to the law review article authored by Kopel and Joseph Greenlee that was cited by Thomas, while “gun bans in certain government buildings and in polling places do have historical precedent, bans that apply to all government buildings do not.” That goes for gun bans all government property, including parks, as well.

Laws that widely prohibit bearing arms are contrary to the text of the Second Amendment. Accordingly, they are not a legitimate part of the history and tradition of the right to bear arms. So no “sensitive places” precedent can be drawn from statutes that forbade bearing arms at all public assemblies or social gatherings. Although some of these laws were enacted long ago, none of them are longstanding, for every one of them has been repealed. Every state that had such a law has replaced it with laws allowing licensed concealed carry, or open carry, in public places, including places of public assembly or social intercourse.

Kopel also points out that governments can’t just declare a place to be “sensitive” and be done with it. Most “sensitive” places aren’t just simply off-limits to lawful concealed carry, they’re often “protected by metal detectors and guards,” which Kopel says is an indication that “the government shows the seriousness of the government’s belief that the building is sensitive. This is what Colorado law requires for government office buildings that wish to ban licensed carry on the premises.”

Denver’s public parks do not have police officers on permanent guard duty, nor do they have metal detectors or any sort of screening device to detect firearms and deter unlawful carrying. They’re deemed “sensitive” only because a majority of city council members believe they can get away with banning guns on every inch of land owned by the city. Now that Kopel (and Justice Thomas) have reminded city officials of their error in judgement, the city council should move swiftly to rescind its ban. Something tells me, however, that Kopel or another Second Amendment attorney will get their chance to earn some “easy money” off the city’s stubborn insistence that the general public has no right to bear arms in self-defense in public parks.

Bruen attorneys leave law firm after being told to ditch 2A clients

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Yesterday should have been a triumphant day for Paul Clement and Erin Murphy. The pair won a landmark victory at the Supreme Court when justices ruled 6-3 in favor of their clients in New York State Rifle & Pistol Association v. Bruen, striking down the state’s unconstitutional “may issue” carry laws. But yesterday the pair also learned that the other partners at Kirkland and Ellis, the law firm where both work, apparently weren’t too happy about the win and told the two attorneys they had a choice to make: ditch their Second Amendment-related clients or leave the firm.

So, as of yesterday, Clement and Murphy are free agents.

This isn’t the first time we have left a firm to stick by a client. What makes this circumstance different is that the firm approved our representation of these clients years ago, and dropping them would cost the clients years of institutional memory. More remarkable still, in one of the cases we were asked to drop, we prevailed in the Supreme Court on Thursday. Those who object to the representation are thus taking issue with the Constitution as interpreted by a majority of the high court.

The Constitution is the foundation of American liberty, but it isn’t self-executing. It depends on lawyers who are willing to take on controversial matters and on judges who are able to hear the best possible arguments from both sides. The Supreme Court’s jurisdiction is limited to cases and controversies, which means the justices can’t uphold rights without an advocate to make the argument.

The American legal profession’s willingness to take on and stand by controversial clients has made our system of justice the envy of the world. The profession shouldn’t back down from its willingness to tackle the most divisive issues. We certainly won’t.

Our decision, then, has little to do with the issues in this case and everything to do with the underlying principle. We would make the same choice for any of our clients. The scope of the Second Amendment and the plague of gun violence are more controversial than the Federal Arbitration Act or even religious speech. But that makes resisting the pressure to drop an unpopular client all the more crucial. The problems posed by the spate of recent violent gun crimes are real. But the solution isn’t to fire clients who have just vindicated a fundamental constitutional right. We are sticking with our clients.

I’ve had the opportunity to interview Clement a few times over the years as well as read a number of his briefs in 2A cases (including Bruen) and I’ve always been impressed with his legal acumen. I’m equally impressed by the conviction on display here on the part of both attorneys. It would have been easy to walk away from Second Amendment litigation and to abide by the wishes of the law firm where they work, especially in a town so hostile to the right to keep and bear arms as Washington, D.C. Clement and Murphy would have probably elevated their social standing by doing so, but instead they chose to stand by their clients and their desire to seek justice before the highest court in the land.

Clement and Murphy were not only the lead attorneys in the Bruen case, they’re also involved in two other cases that are pending in conference at the Court. Clement is the counsel of record in two separate magazine ban cases, one from California and the other out of New Jersey. It’s anticipated that the Court will act on those cases when orders are released next Monday, though whether or not they accept either case or remand them back down to the appellate courts with instructions to follow the “text and history” test laid out by Justice Clarence Thomas in the Bruen opinion remains to be seen. Either way, these cases are still very much live issues, and I’m glad to know that the plaintiffs will continue to be represented by the pair (and a host of other great attorneys as well).

The decision by Kirkland and Ellis to make Clement and Murphy choose between representing 2A clients or continuing to work at the firm does demonstrate a big problem for 2A activists, however. Major gun control groups like Everytown and Giffords not only have their own in-house litigation teams, they regularly receive the help of white-shoe firms offering their services free of charge. Second Amendment organizations, meanwhile, have to worry about the attorneys they hired possibly getting canned from their place of employment thanks to partners’ anti-gun attitudes or willingness to bend a knee to the woke mob.

We have the better argument, and we’ve got some great attorneys, but Clement and Murphy’s tale is a grim reminder that the gun control lobby is trying to do everything they can to turn any and every supporter of the right to keep and bear arms into social and professional pariahs. The fight for our Second Amendment rights is also a defense of our First Amendment freedoms of expression and association, and that won’t change no matter how many great decisions are handed down by the Supreme Court.