Mountain Law: Colorado Supreme Court opens the door to broader gun restrictions
A recent decision of the Colorado Supreme Court has changed long-standing precedent and may open the door to broader gun restrictions.
The Colorado Constitution mandates: “The right of no person to keep and bear arms in defense of his home, person and property . . . shall be called in question.”
In 1921, the state legislature tested this language when it passed a law that prohibited any unnaturalized, foreign-born resident from possessing a firearm. The Colorado Supreme Court struck down the law in 1936, reasoning that under the Colorado Constitution, the state legislature “cannot disarm any class of persons or deprive them of the right guaranteed under … the Constitution, to bear arms in defense of home, person and property.” In other words, the court found that the Colorado Constitution creates a robust, substantive right to possess firearms for the purpose of defending one’s home, person or property.
In 1971, the state legislature again tested the language when it passed a law that prohibits possession of a weapon by a previous (felony) offender (POWPO). This resulted in the Colorado Supreme Court issuing two major decisions in the 1970s that addressed the tension between the right to bear arms enshrined in the Colorado Constitution and the POWPO statute.
These decisions were interpreted by the lower courts to mean that the Colorado Constitution provides a defense to a felon accused of violating the POWPO statute if the felon shows that his, or her, possession of firearms was for defense of home, person or property. In the intervening forty years, that defense has basically been allowed as a matter of course.
Then, in 2014, the Colorado Supreme Court turned Colorado gun law on its head.
In People v. Carbajal, it held that the lower courts had been misinterpreting its decisions from the 1970s all along. According to the Carbajal Court, a felon accused of violating the POWPO statute does not have a defense based directly on the constitutional right to keep and bear arms. Instead, a felon is limited to invoking a defense known as “choice of evils,” which basically requires the felon to show that an imminent harm would have occurred if the felon did not possess a firearm. A choice of evils defense is practically impossible to prove because of the need to show imminent harm, making it more likely that felons will now be convicted under the POWPO statute.
Why did the Colorado Supreme Court change course? The controlling decision from the 1970s was based directly on the language in the Colorado Constitution, which expresses the right to keep and bear arms as more or less absolute. In contrast, Carbajal is grounded in the legislature’s power to pass reasonable regulations under what is known as the “police power.” In essence, the court decided to defer to the legislature and felt that the choice of evils defense went far enough to protect a defendant if extremely exigent circumstances exist.
For Coloradans who believe in strong gun rights, Carbajal is alarming. By holding that the choice of evils defense is sufficient to satisfy the Colorado Constitution’s right to bear arms, the Supreme Court has opened the door to far broader gun restrictions. Though Carbajal addressed a restriction on felons, there is no reason that the same logic would not apply to, for example, firearms restrictions on those who commit misdemeanors, have used drugs or suffer from mental-health problems.
Some would undoubtedly argue that such restrictions are a good thing. Whatever one’s viewpoint, the Carbajal decision will likely increase POWPO convictions and make new gun restrictions more likely to be found constitutional.
Noah Klug is owner of The Klug Law Firm, LLC, in Summit County, Colorado. He may be reached at (970) 468-4953 or Noah@TheKlugLawFirm.com.
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