For Immediate Release March 4, 1998

Back in 1989, after an incident in which a repeat violent criminal killed people using a so-called "assault weapon", Senator Pat Pascoe began a crusade in the Colorado General Assembly to enact a California-style prohibition of these firearms. The Pascoe bill was rejected by the first committee to study it.

Pascoe’s failures were not to deter the Denver City Council, however. In 1989 it enacted an "assault weapon" ban. Several Denver residents responded by filing a lawsuit challenging the ordinance’s constitutionality (Robertson v. City and County of Denver). The judge in that case, R. Michael Mullins, found the ordinance to be an unconstitutional infringement of the right to keep and bear arms as guaranteed by Article II, Section 13 of the Colorado Constitution. However, the Colorado Supreme Court overturned Mullins’ ruling in 1994.

The constitutional question concerning "assault weapon" bans having been adjudicated, Representative Daniel Grossman attempted to revive the measure in the General Assembly this session. Nevertheless, the House Judiciary Committee killed Grossman’s bill in an 8 to 3 vote.

Although the bill’s advocates appealed to Robertson in hopes of persuading the Judiciary Committee to pass the bill out of committee, evidence had been presented to the committee that it was Judge Mullins, not the Supreme Court, who had reached the right decision in Robertson.

Mullins had taken into account the clear intent of the Colorado Constitution’s framers to protect ownership of small arms. The Supreme Court merely ignored this, even though it is a settled principle of judicial interpretation that a court must attempt to determine original intent when interpreting the meaning of the Constitution.

Furthermore, Judge Mullins had correctly ruled that the right to keep and bear arms is a "fundamental right," and that Denver’s ordinance therefore required a "strict scrutiny" standard of judicial review. Under the strict scrutiny standard, a law curtailing a fundamental right can survive a constitutional challenge only if it is necessary to protect a compelling state interest when there is no less restrictive alternative available. Mullins applied the strict scrutiny analysis and consequently had to strike down the ban.

But in its breathtakingly cavalier analysis, the Supreme Court’s majority stated that it had "never found it necessary" to determine whether the right to arms was a fundamental right in Colorado. It therefore found it possible to apply a less rigorous standard of review that allowed Denver to simply demonstrate a "reasonable relationship" between the law and the city’s goal to reduce crime involving "assault weapons."

Perhaps the reason why the Supreme Court "never found it necessary" to determine whether the right to keep and bear arms is a fundamental right is that all rights enumerated in a written constitution are by definition fundamental rights. But the court even ignored its own 1972 decision, Lakewood v. Pillow, in which it classed the right to keep and bear arms among Coloradoans’ "fundamental personal liberties."

Lastly, relying on the rationale of Lakewood, Judge Mullins found Denver’s gun ban to be "unconstitutionally overbroad," because the ordinance banned numerous firearms that were no more dangerous than non-banned firearms. The Supreme Court passed over this as well, in effect ignoring its own precedent on overbroad firearms legislation.

If the 8 members of the Judiciary Committee who voted to kill Grossman’s bill were aware of the Supreme Court’s malfeasance in Robertson, they didn’t let on. Two things seemed to impress them more:

In commenting on the severity of the bill, Representative Gary McPherson found it to be analogous to passing a bill against marriage in order to prevent spousal abuse. Using an "assault weapon" in a crime is already illegal, he reasoned, so why curtail the activities of law-abiding gun enthusiasts? Proponents of the bill seemed unable to answer McPherson’s argument, thus highlighting the irrationality of Grossman’s legislation.

When Denver District Attorney Bill Ritter testified as to the dire necessity for this law, several members of the Judiciary Committee asked him how many "assault weapons" in Denver had been seized in the commission of crime. The committee had been presented with the evidence set forth by the plaintiffs in Robertson that "assault weapons" were used in less than 1% of all gun-related crime in Denver. But Ritter simply had no statistics on this matter. Several members seemed to find illuminating Ritter’s appeal to the absolute necessity of the legislation without having any factual support.

For these reasons, the committee sent Grossman’s bill to an early death. Colorado’s gun prohibitionists were thus treated, yet again, to a rather unpleasant lesson: though the lawless judges in our Supreme Court won’t protect the citizenry from unconstitutional gun legislation, there are clearly enough people at the statehouse who will.

This article, from the Independence Institute staff, fellows and research network, is offered for your use at no charge. Independence Feature Syndicate articles are published for educational purposes only, and the authors speak for themselves. Nothing written here is to be construed as necessarily representing the views of the Independence Institute or as an attempt to influence any election or legislative action.
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