Last year, the Colorado legislature hastily passed a package of gun regulations. The new laws include a ban on all magazines capable of holding more than 15 rounds, and the requirement that all transfers of firearms between individuals go through a gun dealer and be subject to a background check. To say this was an unpopular decision with the voters would be an understatement.
Two sitting state Senators were recalled from office, and a third resigned in the face of an impending recall. The Governor himself seems to regret signing it.
A large group of plaintiffs brought a lawsuit, but the Colorado District Court has ruled that both laws are constitutional [pdf].
(…) the Court finds that although § 18-12-302 burdens the operation of semiautomatic weapons, the burden is not severe because it does not materially reduce the ability of a person to use a semiautomatic firearm for self-defense, nor does it reduce the effectiveness of self-defensive efforts [p. 32]
Likewise, Judge Krieger found that the background-check requirement does not impose enough of a burden to violate the 2nd Amendment. Dave Kopel and Weld County Sheriff John Cooke have stated that they plan to appeal her ruling in the 10th Circuit.
I think that’s a very bad idea.
Since the Heller and McDonald decisions, the Supreme Court has been reluctant to hear any more 2nd Amendment cases (despite claims of gun-control advocates, Abramski wasn’t a 2nd Amendment case). In the meantime, the lower courts have chosen to apply a doctrine of intermediate scrutiny when it comes to 2nd Amendment challenges. It’s a subjective and nebulous level of scrutiny, and the courts have used it to get as close as they can to the rational basis standard Heller forbade without actually calling it such.
At this point, plaintiffs have to prove their rights are being “substantially” burdened. Whether said burden is substantial enough is up to the judge hearing the arguments. Given the precedents the lower courts have provided, we’d be hard-pressed to find a circuit judge who’s willing to buck the trend. It’s just easier to cherry-pick evidence* and tow the line.
In the current climate, we’re not going to win things like this in the courts. It’s a fight that needs to take place in the legislature.
(*) Judge Krieger initially refused to allow 55 of the 62 sheriffs in Colorado to bring suit, and she has chosen to ignore their input in this case. Instead, she relies on testimony provided by an NYPD officer who retired in 1988, and a Chief of Police from Connecticut [p. 29, footnote 24].