Publicola

The following is a response to this post by Clayton Cramer over at the Volokh Conspiracy:

Colorado's new CCW law has been heralded as good news by a lot of people. Among them is Clayton Cramer. I have corresponded with Mr. Cramer on this subject a few times & apparently have failed to change his mind. (Yes, I was the anonymous reader he referred to in the above linked blog). So at the risk of being repetitious & at no risk of being brief I will attempt to illustrate why the new CCW law is worse than the old, why both are worse than one proposed but tabled so the current law could proceed, & finally why all three are worse than they should be. & please do not thinking I am picking on Mr. Cramer in particular: a lot of people I know seem to agree with him. Mr. Cramer just happens to be a more convenient subject, as both he & his views are well known.

Let’s start with looking at the old CCW system in place in Colorado:



The Right to arms is partially protected by the Colorado Constitution. (1) It has clear language stating that carrying concealed is not a part of that Right & as a result of that language the Legislature reasons it has authority to regulate or prohibit carrying weapons concealed. Hence it is illegal to carry a concealed weapon in Colorado. (2)
There are exceptions to this such as having a permit to carry a concealed weapon that is issued by a Colorado sheriff (3) in accordance with the guidelines set out for sheriff’s to issue them. Fingerprints & a background check are required as well as fees to cover the expense of the state in conducting these checks. The sheriff is also entitled to receive compensation for his & his employees’ time in processing the permits. The Sheriff is entitled to set any restrictions he deems appropriate on each individual permit & can deny a permit to any or all individuals who apply at his discretion. (4)
Unless further restricted by the issuing Sheriff these permits are valid anywhere within the state, even on school grounds. (5)
A Sheriff had very broad discretion in issuing permits as he saw fit as long as the state requirements were met. He could have imposed restrictions that the state did not, or he could have imposed no restrictions other than those the state set. A permit issued was valid anywhere in the state unless he imposed restrictions to the contrary, & an applicant did not have to apply for a permit in his county of residence, hence any Colorado Sheriff could issue a permit to any Colorado resident.

There were a few sheriffs who refused to issue any permits whatsoever. There were also a few who issued permits to anyone who could meet the state requirements. There were Sheriffs who would refuse to issue a permit to anyone who lived outside of their county & there were some who made it clear that county of residence did not matter if the state criteria could be met. There were some who charged very high fees, as well as some who charged only what the state required.

An important factor is that under the old state law the permit was not solely for handguns, but for concealed weapons. It was assumed that handguns would be the weapon carried, but since no distinction was made in the language it also prevented arrest for carrying a knife that could be considered a weapon.

Now for the new Concealed Carry Law. (6)

The new law establishes that a Sheriff or person who acts in the capacity of Sheriff for a city or county is responsible for issuing a permit. (7) It also establishes that a resident of a specific county can only apply for a permit with the Sheriff or other suitable official of his county. It further establishes requirements to be eligible for a permit, such as but not limited to; age, recent participation in an approved firearms training course, no more than one alcohol related conviction within the previous ten years. (8)
Despite the Shall Issue description often given the Sheriff can deny a permit to an otherwise qualifying applicant based upon reasonable belief. (9) (Reasonable suspicion is the closest match to be found in a legal dictionary so I will assume that reasonable belief & reasonable suspicion hold the same legal weight, which is a more lenient standard than probable cause. [10]) In effect the Sheriff is held to a lesser standard in denying a concealed handgun permit than he is in making a warrantless arrest.
The law provides that a Sheriff keep records of all holders of concealed handgun permits & must turn over any information at the request of any criminal justice agency for law enforcement purposes. (11)
Several exemptions are provided for law enforcement officers as well as retired law enforcement officers. (12) Of note is that an officer retired within the last five years may submit a letter from his last commanding officer stating he meets the requirements for a permit & the permit shall be issued without fee. (13)
Reciprocity of permits issued by states that recognize Colorado permits is granted. (14)
The new law allows a peace officer to temporarily confiscate a permit holder’s handgun during a lawful stop of the permit holder. (15) It prohibits the carrying of a handgun on public school property, including elementary, middle, junior & high schools. Although it says a permit holder may have a handgun in his car while on school property if he is in the vehicle & locked in a separate container if he is outside the vehicle (16) Colorado law already provides an exception to the law prohibiting weapons on school property. (17)
The new law also states that a permit is not required to carry a concealed handgun while in your vehicle or while hunting, (18) but Colorado law already states that concealed carry of a weapon inside a vehicle is not prohibited by its concealed weapons law. (19)
In most other respects the new concealed handgun permit law doesn’t differ much from the old concealed weapon permit law, except for one potentially very important detail: it refers to carrying a concealed handgun as being based on the individual Right to Self-Protection. (20) While the language used claims state necessity in regulating the concealed carry of handguns, it does provide a foothold that if used properly could demonstrate that the state has no legitimate authority to regulate a Right, especially not to the point of reducing it to privilege.

Now let us look at Senate Bill 63, the concealed carry bill that was passed over in favor of the previous bill. (21)

If SB63 was enacted into law it would establish requirements for obtaining a concealed weapons permit. The requirements are: you must be a Colorado resident; you must be at least twenty-one; you must not be prohibited by state or federal law from possessing a handgun. If you meet these three requirements the Sheriff must issue you a permit. (22)
It establishes no prohibitions upon concealed carry except as provided by state or federal law & prohibits city, county & quasi-governmental bodies from enacting laws, ordinances or regulations that prohibit carry by a permit holder. (23)
It establishes a background check be performed, but forbids the Sheriff from asking or retaining any information about an applicant’s weapons. (24) It stipulates that the background check shall consist of requesting the Colorado Bureau of Investigation conduct an NICS check (the same check required when one purchases a firearm through a Federally Licensed dealer) & a search of a state maintained criminal database. (25)
It establishes that the Sheriff may set a fee for the concealed carry permits but must not exceed $50, $6 of which will go to the state to offset the costs of the background check. 26 Renewals would be a maximum of $25. (27) Permits are valid for five years. (28)
It allows a Sheriff to keep records of permits that he issues, but prohibits sharing them for the purpose of creating or maintaining a statewide or regional database. (29)
It requires a Sheriff to issue a permit or deny a permit within fifteen days based solely upon the three qualifications listed above. 30 It establishes reciprocity with states who recognize Colorado permits. (31)
It states that previously issued permits shall expire naturally (32) & prohibits the Colorado Bureau of Investigation from compiling a database in either paper or electronic form of applicants for permits as well as permit holders themselves. (33)

Analysis:

While the old CCW law was flawed in many respects the new CCW law is not an improvement except for its reciprocity language.
Under the old system a sheriff could refuse to issue any permits at all even if the few requirements were met. The new system requires a permit to be issued if all the requirements are met but it gives the sheriff a great deal of discretion as he is held to a lesser legal standard in justifying the refusal of an applicant. A person whom he knows nothing about cannot be searched without a warrant &/or probable cause, yet a person who passes the state mandated background checks & has received some sort of training may be denied because of a sheriff’s reasonable belief that the person should not be armed. This goes back to a very old saying: “we know he’s guilty we just can’t prove it”. While one can immediately think of situations where this axiom might prove true one should also be able to recognize that a cornerstone of our system of jurisprudence is the belief that all are innocent until proven guilty. Another basic element of our system of law is that no one may be punished without due process of law. Most would find suspect a judge proclaiming that even though a defendant was acquitted by a jury in a fair & legal trial the defendant must serve 60 days in jail. Similarly we should find it odd that even though a background check & safety requirement are met that a sheriff can deny an applicant a permit with less justification than it would take to search an unknown persons’ car.
It is therefore incorrect to refer to the new CCW law as a “Shall Issue” law. It is also incorrect to assume it is better than the old law. While a sheriff could arbitrarily deny a permit under the old law, the new law provides the sheriff almost as much discretion. Under the old law if your county sheriff refused your application one could simply go to a sheriff in another county. Under the new law the permit must be issued by the sheriff in the county that you reside in. So it is no improvement in that regard.

Public schools are treated differently under the new law: one cannot carry while on school grounds with the exception of carrying in your vehicle. The old law did not prohibit carry on school grounds by a permit holder & in a separate law an exemption for carry in your vehicle was provided to everyone. Hence the new law guarantees that criminals will have a low risk of meeting armed resistance if they choose to commit a crime on school property unless they are in the parking lot.

The requirements for a permit under the new law are more stringent than under the old, & it includes disqualification for 2 alcohol related convictions within the past decade. Most assume that this would mean 2 DUI’s, but the language does not make any distinction between a felony DUI conviction & a misdemeanor conviction for carrying an open container. Hence under the new law non-felony convictions punishable by less than one year in prison are grounds for denial.

The new law requires that records of permit holders be kept & made available to any criminal justice organization upon request. Under the old law this was optional, and a few sheriffs were entering records of permit holders into a state criminal database which created a bit of a stir. This amounts to nothing more than gun owner registration & while not prohibited under the old law it is required under the new law.

A provision in the new law allows retired Law Enforcement Officers to receive a permit with nothing more than a request for one written on department letterhead by their last boss. A fee is not required, neither is fingerprinting nor background check. To be fair most LEO’s are fingerprinted at some point in their law enforcement career & while the quality of training varies they do receive some sort of firearms training. But they are not made subject to the same requirements as non-LEO’s. This amounts to preferential treatment & should be looked upon with suspicion as the NRA worked closely with the Colorado sheriff’s to work out the details of this particular bill.

The new law requires a permit holder to surrender his weapon to an LEO during a lawful stop when requested to do so. There was no provision in the old law that mandated a permit holder relinquish his property during the course of a lawful stop. While it is common practice in most states for an LEO to seize a weapon during a traffic stop & generally supported by case law, it is a violation of the Right to Property & the Right to Arms. Any deprivation of access to property initiated by an agent of the government without probable cause is in violation of the 4th article of the Bill of Rights, no matter how long or short the duration is. Further this requirement presents a very real danger in Colorado as there have been more than a few people claiming to have been stopped or told to stop by people who were imitating LEO’s. If one were to relinquish his or her weapon to a man claiming to be an LEO then one is defenseless if that person turns out to be a criminal. While the odds of this happening are small it is a possibility that should not be discounted. The new law requires you give up any claims under the 4th article of the Bill of Rights when an officer asks for your handgun. This is a condition of receiving the permit.

The new law specifically states that handguns are the object of the permits, while the old law merely said weapons. Hence a knife which would be viewed as a weapon is illegal to carry in your pocket even if you have a permit to carry a handgun.

From the preceding we can deduce that the new law is not an improvement over the old except in two areas & that in some the new law is worse than the old. Those two areas are reciprocity & the language which mentions the Right of Self Protection.

As for the law that could have been, Senate Bill 63, we can see some marked improvements over both the old & new law:

There are only four requirements which if met guaranteed a permit for the applicant. Those four requirements were: an applicant must be 21, must be a Colorado resident, must not be prohibited by state or federal law from possessing a handgun & an applicant must pay the fee.

The first two requirements can be met simply by producing a Colorado drivers license or state issued I.D. The third is met by having the sheriff request that the SBI conduct an NICS check upon the applicant. This is accomplished by filling out federal form 4473, the same form required of anyone who purchases a firearm from a federally licensed dealer. The NICS check is the exact same check used by Federal Firearms License holders (more commonly referred to as gun dealers). In Colorado the SBI conducts a check of its database in addition to the NICS check when a handgun is purchased but these are accomplished within the same step & time frame. Finally an applicant must have at most $50 to hand over to the sheriff, which is somewhat less than the $100+ allowed by the new law or the arbitrary fee (no maximum set although most sheriffs usually charged under $100) of the old law.

It would have prohibited sheriffs & the SBI from keeping a database as well as prohibiting sheriffs from keeping any information about the applicants’ weapons. It also would’ve prohibited government & quasi-government agencies from limiting where a weapon may be carried.

It did not specify ‘handgun’ so any weapon should have been covered by the permit. Schools were not off limits to permit holders, & it established reciprocity between Colorado & states that recognized Colorado permits.

In short it was close to perfect.

How it could have been perfect was relatively simple: strike all the language about requiring a permit, fee or condition of residency. In short make the law state that anyone may carry a weapon concealed or openly as they see fit without obtaining prior permission. Critics would say that either this would allow criminals to legally carry or that the legislature &/or governor would never agree to such a liberal concealed carry law.

In actuality criminals do carry without permits. They’re criminals, remember? A person determined to rob someone else, or rape or murder is not going to be deterred by not having the correct paperwork. If that were the case then we could drastically reduce crime by requiring permits to commit crimes. Sadly, people who will break a law forbidding robbery, assault, rape or murder will not care about a law that prohibits carrying a weapon in a certain manner. Laws requiring permits only hinder the law abiding: the ones who would benefit most from carrying a weapon.
As for the legislature not agreeing to a very liberalized carry law, perhaps this is the case. But let us not presume that because the legislature would not agree that they have good reason for it. The cause of most opposition to liberalized concealed carry is not a legitimate public safety concern, it is political.
Most lawmakers, governors, judges, attorneys, LEO’s, etc… who oppose liberalized concealed carry while supporting some form of permit system do so because they are reluctant to relinquish power. Whether you realize it or not condoning or denying a persons’ Right to Carry is a form of power. It is also a form of dependence. Were most things that require government permission to be left up to the individual then government wouldn’t be nearly as necessary. Permits for Arms are a far too common example of this. They usually are required under the guise of public safety, but no background check or safety training course or high fee is going to guarantee a person will be safe & responsible. Only the individual will determine that & there simply is no litmus test that would cover a person being safe & responsible for the rest of his life. If you are in doubt then look up statistics on police & military accidental shootings someday: you’d be surprised.
Lest we forget though, despite any justifications to the contrary carrying arms, even when concealed is a fundamental & absolute Right. To require a permit or a fee is to treat that Right as a Privilege. It is just as wrong to do that as to reduce Freedom of Religion or Freedom of Speech to the status of Privilege rather than Right.

The new CCW law was passed because it was the most expedient compromise that the NRA could work out with the sheriffs & the governor. The governor wanted to look like he was doing something for gun owners without doing too much for gun owners. It gave the sheriffs the same amount & in some cases more control over the permit process while it gave the NRA the image of achieving a legislative victory for firearms owners without having to have any of the substance of one. I’m no fan of the NRA & it is compromises such as this one that caused my disdain for them. They seem to be afraid of achieving anything substantive because the closer they get to winning the battle for our Rights, the closer they are to becoming the shooting sports & safety organization that they were. They had a much smaller budget then. This one step forward two step back syndrome is not uncommon for the NRA.

The proposed law, Senate Bill 63 was tabled after it came out of committee because the NRA had been successful in lobbying for their bill at the expense of the proposed one. Despite it being a better CCW bill & despite it getting passed out of committee before the NRA’s bill was, the NRA & sheriff’s gathered enough support to defeat this bill so the NRA bill could proceed.

The new law does have one saving grace: it refers to the Right to Self Protection as its basis. Obviously it is a contradiction to refer to a Right as the basis for a privilege license but perhaps a useful one. In it, if accepted by a court lies a possible foothold to nullify this law along with any prohibitions on carrying a weapon in any manner. But there is ample substantive law & case law that has been avoided or ignored in order to enforce more clear cut violations of Rights than this. Perhaps this will be different, but I'm not optimistic.

In summation the old law was preferable to the new law, & the proposed law (SB 63) was preferable to both. While having no restrictions or requirements for carry would have been preferable to all three. I respectfully submit that this law is no cause for celebration, except to those such as Mr. Cramer whose carry permit will now be honored in Colorado. While it does benefit Mr. Cramer & those who have carry permits in other states I live in Colorado so I do not share Mr. Cramer's enthusiasm. Not that I would apply for a permit in order to exercise what i consider to be a Right, but if I were to relax my standards then I would still view this law as the worst of the three CCW permit options we had. As it stands though we are stuck with the NRA’s bill until we can convince enough legislators to stand up for our Rights rather than make deals with LEO organizations & the NRA.





















1 Colorado Constitution Article 2 Section 13. Right to bear arms.
The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.


2 Colorado Code that pertains to the 'offense' of carrying a concealed weapon.

3 current, about to be replaced CCW law.

4 provision in the current law dealing with a sheriff's liability in issuing concealed carry permits.

5 Colorado law that deals with carrying weapons on school property.


6 Text of the new Concealed Carry Law Colorado Revised Statute 18-12-2

7 Page 5 Colorado Revised Statute 18-12-201 para 3

8 Pages 7,8,9 & 10 of Colorado Revised Statute 18-12-203

9 Reasonable Suspicion is defined by Findlaw.com : an objectively justifiable suspicion that is based on specific facts or circumstances and that justifies stopping and sometimes searching (as by frisking) a person thought to be involved in criminal activity at the time… Note: A police officer stopping a person must be able to point to specific facts or circumstances even though the level of suspicion need not rise to that of the belief that is supported by probable cause. A reasonable suspicion is more than a hunch.

10 Probable Cause as defined by Findlaw.com 1 : a reasonable ground in fact and circumstance for a belief in the existence of certain circumstances (as that an offense has been or is being committed, that a person is guilty of an offense, that a particular search will uncover contraband, that an item to be seized is in a particular place, or that a specific fact or cause of action exists)
Example: when supported by probable cause, warrantless search of vehicle may extend to every part of vehicle where objects of search might be concealed -- State v. Nixon, 593 N.E.2d 1210 (1992)
(called also reasonable cause, sufficient cause)
Note: The Fourth Amendment to the U.S. Constitution stipulates that ``no warrants shall issue, but upon probable cause.'' Probable cause is also required for a warrantless arrest. Probable cause is an objective standard rather than a function of subjective opinion or suspicion not grounded in fact or circumstance. However, the facts or circumstances need not be of the nature of certainty necessary to establish proof in court.
2 : justification for an administrative search based on a showing that it is to be conducted in accordance with standardized nonarbitrary regulatory procedures designed to further public interest in regulatory enforcement that outweighs the intrusiveness of the search


11 Page 17 Colorado Revised Statute 18-12-206 3

12 Pages 22 & 23 Colorado Revised Statute 18-12-212

13 Page 23 Colorado Revised Statute 18-12-212 2

14 Page 23 Colorado Revised Statute 18-12-213

15 Pages 23 & 24 Colorado Revised Statute 18-12-214 1 (b)

16 Page 24 Colorado Revised Statute 18-12-214 3

17 Colorado Revised Statute 18-12-105.5 3 (a) & (c) respectively

18 Page 11 Colorado Revised Statute 18-12-204 3

19 Colorado Revised Statute 18-12-105 2 (b)

20 Pages 4 & 5 Colorado Revised Statute 18-12-201 1 (d)

21 Text of Senate Bill 63

22 Page 4 SB 63 18-12-203 1

23 Page 5 SB 63 18-12 204 1

24 Page 6 SB 63 18-12-205 1

25 Page 7 SB 63 18-12-205 3

26 Pages 6 & 7 SB 63 18-12-205 2

27 Page 8 SB 63 18-12-209

28 Page 5 SB 18-12-204 1

29 Page 7 SB 63 18-12-205 4

30 Page 7 SB 63 18-12-206

31 Page 9 SB 63 18-12=210

32 Page 9 SB 63 18-12-212

33 Page 9 SB 63 18-12-213