Denver district judge’s gun ruling misses the mark |

Denver district judge’s gun ruling misses the mark

Special to DailySenator Mark Hillman

In a Nov. 5 decision largely unnoticed amid pre-election hype, Denver District Judge Joseph Meyer ruled on the constitutionality of two gun laws passed by the Legislature in 2003.Senate Bill 24 established statewide uniformity for concealed carry permits. Senate Bill 25 called for uniformity of laws concerning ownership and possession of firearms and nullified local ordinances which were more restrictive than state law.The City and County of Denver filed suit claiming that those bills unconstitutionally infringed on Denver’s authority as a home-rule city.The relevant constitutional provisions are these:Article II, Section 3, which lists “defending their lives,” “possessing and protecting property,” and “seeking and obtain … safety” as inalienable rights.

Article II, Section 13, which says the right to “keep and bear arms” is a personal right which cannot “be called in question” and excludes concealed carrying of weapons from that right.Article XX, Section 6, which grants home-rule cities and towns “the full right of self-government in both local and municipal matters” and authorizes city charters to supersede state statutes in such cases.I voted for both SB 24 and SB 25 because an “inalienable right” is just that – a right which cannot be pre-empted by government, whether state or local. Although Colorado’s constitution gives home-rule cities broad authority, nowhere does the home rule amendment authorize cities to infringe on constitutional rights.If I were deciding the case, that would be my decision. Period. Of course, I haven’t been scarred by years of law school.Instead of ruling on the plain language of the constitution, Judge Meyer issued a 16-page dissertation on legal precedent which essentially boils down to this: “Based on the totality of the circumstances,” the concealed carry bill is constitutional, but much of the ownership and possession bill is not.”Totality of the circumstances” is one of those convenient phrases – like “compelling state interest” – that sounds quite erudite but really means, “When I can’t square my opinion with anything in the constitution, I will do what I darn well please.”

Judge Meyer produced some astonishing findings:– “Uniformity in itself is no virtue.” While this may have been a worthy argument in the Legislature, it has no constitutional relevance. There may be no clearer indication of Meyer’s willingness to legislate from the bench.– A gun carried under your jacket is a matter of statewide concern, but that same gun becomes a local matter when you take off your jacket.– “Unlike the legislation for concealed carry, Senate Bill 25 fails to set forth a comprehensive regulatory scheme that serves as uniform authority for open carry of firearms.”In other words, Judge Meyer would likely have stricken down a concealed carry law that simply said, “Any citizen who isn’t a criminal, drug user or mental patient may legally carry a concealed weapon without obtaining a permit.” The merits of such a law can be argued, but the policy is no more or no less constitutional than existing law.

— “Denver is by far the most densely populated area of Colorado. Denver also suffers rates of violent crime far in excess of statewide averages. These unique factors predominate over any need for statewide uniformity…. ‘Simply put, a bullet fired in Denver … is more likely to hit something or somebody than a bullet fired in rural Colorado.'”Meyer seems oblivious to the fact that “a bullet fired” describes use of a gun. SB 25 doesn’t address use – only possession and ownership. Denver ordinances against flourishing, firing and discharging firearms were not even contested by the state’s attorneys. Moreover, “need for uniformity” is a legislative consideration, not a factor for determining constitutionality.This ruling and Judge Meyer’s far-fetched decision – moderated by the Supreme Court – in last year’s school choice case make him the poster child for judicial activism.State Sen. Mark Hillman (R-Burlington) is the majority leader of the State Senate, until Jan. 12. Then he becomes the minority.

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