FPC and CSSA filed Elliott v. Denver to challenge Denver’s so-called “assault weapon” ban and Colorado magazine restrictions as the Supreme Court prepares to hear major AR-15 ban cases. IMG Travis Pike
Denver’s long-running gun ban just picked up another serious legal problem.
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The Firearms Policy Coalition and the Colorado State Shooting Association have filed a new federal lawsuit challenging Denver’s ban on so-called “assault weapons” and Denver’s and Colorado’s bans on magazines that hold more than 15 rounds. The case, Elliott v. Denver, was filed the same day the U.S. Supreme Court agreed to hear major challenges to “assault weapon” bans in Viramontes v. Cook County and Grant v. Higgins.
Denver’s Ban Targets Common Semiautomatic Firearms
The plaintiffs argue that these bans infringe the right to keep and bear commonly possessed arms (including standard-capacity magazines) for self-defense, home defense, and other lawful purposes. They claim that these bans fail the Bruen standard (the text-and-history test). The first step in the Bruen analysis is to determine whether the conduct falls within the plain text of the Second Amendment. As affirmed by the Supreme Court’s Wolforddecision, the question in step one is whether the plaintiffs are members of the “people.” The plaintiffs are undoubtedly part of the political community and therefore part of “the people.”
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The second question in step one is whether the arm is bearable. Anti-gun attorneys and judges have tried to shoehorn other meanings into step one, such as claiming that the plain text does not cover “military-style” weapons. Wolford shut the door on this underhanded tactic. Courts can only consider if an arm is bearable, full stop. The latest Supreme Court Second Amendment cases make the localities’ job of defending such bans harder than ever.
After the text analysis is complete, the case moves to step two.
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Colorado Magazine Ban Also Challenged
According to FPC, it will be up to the state and city to use the nation’s history and tradition of firearms regulations from the founding era to prove that Denver’s bans are constitutional. FPC and the other plaintiffs do not believe that either Denver or Colorado can meet that burden. The complaint highlights that magazines with over 15 rounds have been common since the mid-19th century (for example, in Winchester rifles).
The plaintiffs also point to Heller. They argue that semiautomatic firearms and standard-capacity magazines are in common use today and thus cannot be banned as “dangerous and unusual.” Anti-gun defendants have tried to append “for self-defense” to the phrase “in common use,” but Wolford clarified that it is common use for both defensive and offensive purposes. Even if they could prove that AR-15s are not used for self-defense, they will not be able to prove that the firearms and magazines are not in common use for other lawful purposes.
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The state will be hard-pressed to find historical analogues to support the city’s ban. What anti-gun states had success with in the past was shifting the relevant founding era from the ratification date of the Second Amendment (1791) to the ratification date of the Fourteenth Amendment (1868). This had allowed the states to use racist Black Codes from the Reconstruction era to justify modern bans, but the Supreme Court has been hostile to using racist gun laws to justify modern-day restrictions. Even from last year, the state’s task of defending Denver’s ban has become significantly harder.
DOJ Already Has Denver And Colorado In Court
The lawsuit asks the court to issue declaratory and injunctive relief to block enforcement of the bans, plus attorneys’ fees and costs under § 1983 and § 1988. This isn’t the only lawsuit the city is facing. The DOJ has also set its sights on the City’s ban.
With SCOTUS taking up two “assault weapons” ban cases, many believe that bans across the country might be heading to the trash heap of history.
you still don’t get it.
