Saturday, August 22, 2015

How To End The Colorado Magazine Capacity Limits

There was for a while talk of cutting some sort of deal to increase the magazine capacity allowed by an unconstitutional law. The method was legislative and for a number of reasons I was not in favor of such a move. The most practical reason is that increasing the limit to 30 rounds would negate a fatal weakness in the law as it stands now. That particular flaw is that the magazine capacity limit law interferes with interstate commerce, and thus is unconstitutional. I'll spell it out below the break.

Colorado Revised Statutes 18-12-302 is where the text of the law can be found.  I'd like to draw your attention to (3) (c), the very last sentence of this law:

"A person who possesses the magazine for the sole purpose of transporting the magazine to an out-of-state entity on behalf of a manufacturer of large-capacity magazines within Colorado."

That section was inserted as part of a vain effort to keep Magpul within Colorado. They pointed out that it would be illegal for them to ship firearms out of state even though it'd be legal to manufacture the magazines in state. The committee had this section inserted to ensure that couriers would not violate the law by transporting magazines to customers in other states.

If you look over the rest of the law you'll notice that there is not an exception for people transporting magazines through the state or into the state from outside sources. Because it excepts transportation out of the state, but not through or into, this law interferes with interstate commerce and as a result is unconstitutional.

The Commerce Clause can be found in the u.S. Constitution's Article 1, Section 8, Clause 3, where it empowers congress:

"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes"

This power has been taken to ridiculous extremes over the last 100 years or so and could be described as a wish-granting machine for anything the federal government wants to do. However the federal government does legitimately have the power to set up rules for the purpose of ensuring commerce flows smoothly, or as smoothly as possible. This legitimate use of power is partly embodied in what is know as Dormant Commerce Clause jurisprudence.

In essence, because the federal government has the power to regulate commerce between the states (as well as foreign commerce) a state may not enact laws which interfere with that commerce except in a very few instances.

When a state is acting as part of the market (e.g. contracting builders for roads or structures or other material goods) some leeway is given. So if a state required all bids to come from a geographic area within that state it would be excluding commerce that may have come from other areas, but because the state is functioning as a purchaser then such interference is acceptable. This is not applicable to Colorado's magazine capacity law.

Another exception is when there is a public safety or health interest. If a state passes a law for the purpose of enhancing or securing some aspect of public safety, then interference with interstate commerce is typically permissible. This will be what the state argues, and as I'll point out it too is inapplicable to the Colorado magazine capacity law.

A person may transport magazines from an in state manufacturer to an out of state customer. That was inserted as an exception to the prohibition on possessing magazines that can hold more than 15 rounds of ammunition. Because it is an exception, and because other exceptions were listed, we must conclude that the law in question prohibits all other possession of magazines with a capacity greater than 15 rounds.

That means a courier traveling through the state (e.g. coming from Kansas and headed to Wyoming) or a courier coming into the state is prohibited from possessing magazines capable of holding more than 15 rounds of ammunition.

You may be thinking that banning people from carrying the proscribed magazines into the state is what the intent of the law was - to rid Colorado of magazines capable of holding more than 15 rounds. But if you look at the other exceptions contained in (3) of the law you'll note that there are people within the state that may legally possess such magazines that may originate out of state, notably law enforcement and "any licensed gun dealer" and "A firearms retailer for the purpose of firearms sales conducted outside the state".

"any licensed gun dealer" is defined in  C.R.S. 12-26.1-106 (6) as "...any person who is a licensed importer, licensed manufacturer, or dealer licensed pursuant to 18 U.S.C. sec. 923, as amended, as a federally licensed firearms dealer."

What this means is that a licensed gun dealer can possess magazines that are capable of holding more than 15 rounds of ammunition, but it is still illegal for a courier to transport those magazines to or from said FFL holder unless they originated within Colorado.

As an example, if a gun dealer in Colorado Springs  purchases a collection in an estate sale in Kansas, then to comply with the law he would have to have the firearms shipped separately and travel to Kansas in order to take possession of any magazines that may be capable of holding more than 15 rounds. If he sold a firearm and a magazine subject to this law to a buyer in Alabama, he would have to ship the firearm separate and at least drive to New Mexico in order to legally ship the magazine.

The "firearms retailer" section makes all this a bit murkier, as a strict reading of the text would mean that magazines could only be sold out of state and only along with the sale of a firearm. It's the part of the sentence that states "...for the purpose of firearms sales" that leads me to conclude that a retail gun store could not just sell a box of magazines to an out of state buyer, even if the magazines were manufactured in Colorado, unless there was a firearm sale involved. And because "firearms retailer" and "any licensed gun dealer" are mentioned separately we have to assume they mean two different things. So a retailer would only be able to sell magazines to out of state customers whereas a wholesaler or some other form of Federal Firearm Licensee could make in state transfers.

But as problematic as those situations are, there's another that's even more damning of this law: it is illegal for a courier to transport magazines to any law enforcement agency within this state.

The exception for couriers found in C.R.S. 18-12-302 (3) (c) is specific in that only magazines manufactured in state may be transported, only from the in state manufacturer, and only to purchasers out of state.

If a Colorado Springs wholesaler has a deal on, say Witness Steel Full Sized in 9mm, which have 17 round magazines, then they could not use a courier to ship said pistols with their magazines to the Grand Junction police department. A cop from Grand Junction would have to drive to Colorado Springs and personally pick up the magazines.

If the Grand Junction police department went through all that trouble, and some years down the road decided they wanted additional magazines for the Witness Steel 9mm's, and a gun store in Colorado Springs had the best deal because some hypothetical concern in Colorado Springs started manufacturing Witness 9mm magazines (but didn't do retail sales), the Grand Junction PD would not only have to send an officer to pick up the magazines, but the gun shop could not sell them just the magazines; there'd have to be at least 1 firearm purchase involved before he could transfer said magazines legally, and the transaction would have to occur outside of the state - the gun shop would have to send the magazines and firearm to an out-of-state gun store where the cop would have to travel to pick up the magazines and firearm.

Of course that was a hypothetical example as I know of no in state manufacturers of magazines since this law took effect, and it would be illegal for a courier to deliver 15+ round magazines out of state to a gun store, importer or wholesaler in state even though it would be legal for them to possess such magazines.

Federal Express, United Parcel Service, the United States Postal Service, and any other couriers are unable to legally transport any magazines into or through Colorado, even to a local, state or federal law enforcement agency. Since there are no in state manufacturers of magazines, the only source for magazines would be interstate or foreign commerce. And since possession of magazines from out of state is illegal if they can contain more than 15 rounds a piece, then couriers must, in order to comply with the law, travel around Colorado instead of traveling straight through, even if no stops in Colorado were planned.

That creates an interference in interstate commerce that is not permissible for a state to engage in.

A state attorney would argue that such interference is permissible because the law concerns a matter of public safety. That line of defense is easily overcome.

(I could argue, in another context, that a Fed Ex guy dropping off a box of P-Mags to the Denver PD is a public safety risk, but no state attorney could.)

The situation created by this law was not caused by legislative intent, but rather by very sloppy, incompetent law making.  If we forego the argument that there is no proof nor logical relationship between magazine capacity limits and public safety, there still is no evidence that a courier bringing magazines into the state (or in theory from one part of the state to another) for delivery to a law enforcement agency is somehow riskier than for an agent of law enforcement to drive out of state to pick up said magazines and bring them back to a police department or sheriff's office.

While it may be argued that some courier services are more prone to losing parcels than others, no such concerns were involved in the creation of this law. The exception for couriers transporting magazines from Colorado to out of state buyers was a futile effort to prevent a large manufacturer from leaving the state due to its objections to the initial draft of this law. That the legislature did not create similar exceptions for the otherwise legal commerce in magazines capable of containing more than 15 rounds was due to negligence, not intent.

In fact the opposite is true - this law interferes with public safety as it is illegal under the law for police departments within this state to be properly equipped unless they send agents out of state to procure vital equipment.

(As an aside, I find it a rather delicious twist that because of the intent of the Colorado legislature to prohibit folks from owning magazines that can hold more than 15 rounds, and the incompetent writing skills of the lawmakers involved, the Denver Police Department, the Colorado State Patrol, CBI, FBI, ATF, DEA, and any other law enforcement agency within this state have obtained their 15+ round magazines through illegal means if they obtained them after July 1rst 2013 and did not drive out of state to pick them up themselves). 

Because what's at issue is an absence of exceptions for what we can safely presume the legislator did not intend to prohibit, there is no severance that can save the law as a whole (in other words, the whole law, not just one part of the law, must be struck down to relieve the harm caused) . Nor can a court create an exception or exceptions to resolve the interference in interstate commerce this law creates. It is not a court's job to "fix" legislation that was poorly written, nor is it within their power to do so.

The legislature's goal (of unconstitutionally and immorally imposing on the Right to arms of the people of Colorado) could have been accomplished without placing these burdens on interstate commerce. It would have been within the capabilities of the legislature to exempt all couriers transporting magazines with a capacity of more than 15 rounds to any legal recipient within the state or outside the state. It did not, due primarily to the profound ignorance on the subjects of both firearms and commerce that the legislators here and the original drafters of this law in the New York City mayor's office have continuously exhibited.

The 10th Circuit is notoriously anti-gunowner, having a propensity to find valid any intrusion upon the Right to own and carry weapons, even despite two applicable constitutions stating those Rights. But if presented with the arguments I've outlined above, they would be very hard pressed to preserve the integrity of the commerce clause powers while upholding Colorado's magazine capacity law. If they did use some sort of intellectual hooliganism (which they are not above) on appeal their decision would be struck down so quickly and with such severity folks would think it was a 9th Circuit case.

In short, the Colorado magazine capacity law would be sacrificed on the altar of interstate commerce.

However, this only holds true as long as the law remains as it is. If the capacity limit is increased to 30 rounds, then much of this strategy melts away, as few law enforcement agencies use magazines that may hold more than 30 rounds of ammunition. Thus it would not be an undue burden on, or significantly interfere with interstate commerce.

Considering that last point, it should be assumed that any offer to increase the magazine capacity limit to 30 rounds without repealing the law as a whole is an effort to negate the avenue for having the entire law struck down by the courts. This is part of the reason I am adamantly against any such deal to increase the magazine capacity limits that does not remove the entire law.

I have sent my summation of the law's potential weakness in regards to the Commerce Clause to various folks, notably Dudley Brown of RMGO/NAGR, David Kopel of the Independence Institute, John Caldera of the Independence Institute, and a few other bloggers and media personalities. I asked them at the time to not make mention of this publicly as the legislature was still in session. My concern was that the dems may not have been aware of this deficiency within their law, and would offer a deal to up the limit to 30 rounds while adding exceptions to remove the burden on interstate commerce. With the exception of one blogger I have not received any responses regarding this strategy to end the magazine capacity law in Colorado. (The peril of still using a yahoo address for email is that I do tend to end up in spam filters, so it could be as simple as that).

I saw part of these flaws when the law was first enacted. I assumed everyone else did as well, and that the reason this was not pursued through litigation was they wished to try a direct Right to arms challenge of the law, which was done (and I agreed with this method, though I would have preferred a more strongly worded challenge, but that's another subject). ColoradoGunCase is a page keeping track of the relevant documents in the challenge to both the magazine capacity law and the "universal background check' law. The laws were upheld at the district level and are now being appealed. But some of the people and institutions involved in the lawsuit were among the loudest voices urging a deal to increase the limit to 30 rounds when such a bargain was hinted at a few months ago, and therefore I find the entire situation a bit puzzling.

So I would ask anyone that reads this and has a moment to pass the word on to any and every pro-gunowner organization that may be interested in repealing the law in its entirety, especially the folks at RMGO and the Independence Institute. If anyone can find any flaw in my reasoning or interpretation of the law or any other aspect of what I outline above, by all means leave a comment or email me. But from what I can gather, this commerce clause based challenge I explain within this post is the most sure method of eradicating the immoral, unconstitutional magazine capacity law here in Colorado, and if similar legislation in other states were as sloppily and negligently written, it may provide relief for them as well.

(And remember, appeasement is for chumps.)

1 comment:

rexxhead said...

I crack enamel off my teeth every time I read something like "...a machinegun made in the State of Texas and that has not traveled in interstate commerce cannot be regulated by the Federal Government under the interstate commerce clause."

First the I/C clause was intended to grant Congress the power to prevent STATES interfering in the free transfer of value, not persons actually transferring value.

Second, it is a fundamental principle of jurisprudence that later law trumps earlier law. if the I/C clause ever gave Congress any power over firearms, the Second Amendment revoked that grant.

It is also provable by direct deduction that the I/C clause is currently misinterpreted. Article I section 8 of the U S Constitution begins "Congress shall have the power to..." and proceeds to list 17 specific things Congress shall have power to do. One of these things is to regulate commerce. If "to regulate commerce" is accepted in its modern interpretation, viz. to micromanage all activity which involves (or might conceivably involve) more than one state, then that is the only power that needs to be granted in I(8), all the others being subsumed within the power to micromanage the economy of the entire United States. Could that have been what the writers intended? "Congress shall have the power to do these 16 things plus anything else that occurs to them"? To ask the question is to know the answer. That's patently ridiculous!