Colorado gun control activists pushed hard for a ban on so-called assault weapons this year, but Colorado Gov. Jared Polis leaned on lawmakers to instead adopt a measure requiring residents to obtain a “firearms safety course eligibility card” before they can legally purchase specific semiautomatic rifles, shotguns, and handguns that use ammunition larger than .22 caliber and can accept a detachable magazine.
Polis had publicly stated that he doesn’t believe state-level bans are all that effective, and would prefer to see a federal ban on so-called assault weapons instead. Shortly after the “Polis Permission Slip” (as NRA called it) became law, it was the subject of a federal lawsuit, and this week Polis and Colorado Attorney General Phil Weiser submitted a brief arguing the case should be thrown out.
In their filing, the pair (along with co-defendant and district attorney Michael Allen) declare the Colorado legislature enacted Senate Bill 25-003 to “improve public safety, reduce firearm injury and death, and enhance gun safety education.”
Now, if that were really the case, why wouldn’t the legislature have adopted a permit-to-purchase law for all firearms? Rifles of any kind, including the semi-automatics covered by SB 25-003, are rarely used in crimes of any kind, and accidental/negligent discharges causing injury are far more common with handguns than rifles as well. As their filing notes:
The Act exempts recoil-operated handguns, including most popular handguns like Glocks. The Act does not cover firearms manually operated by bolt, pump, lever, or slide action, or firearms with permanently fixed magazines holding 15 or fewer rounds.
And why not? If the goal of the legislation is to improve public safety, reduce firearm injury and death, and enhance gun safety education, then why not apply this same stupid permitting process to the purchase of all firearms in the state of Colorado?
Now, I’m not arguing that a permit-to-purchase law covering all gun sales would be any more constitutionally sound, but it would at least be consistent with the stated purpose of the statute. And I suspect that the illogical reasoning deployed in defense of the law could play a role in it being declared illegal.
The Colorado law clearly implicates the Second Amendment rights of Colorado residents, which means its up to the state of Colorado to come up with evidence proving that its part of the national tradition of gun ownership. To do so, Colorado will trot out the same arguments other states have used to justify their gun bans; mostly 19th century laws regulating the carrying (but not the purchase or possession) of things like Bowie knives.
On the surface, the “why” for Colorado’s law and 19th century restrictions on Bowie knives may appear to be substantially similar. Both ostensibly aim at public safety, after all. But again, the vast majority of Bowie knife laws were proscriptions or regulations on publicly carrying one, not on their purchase or possession.
And the real reason for SB 25-003 isn’t public safety, reducing firearm injuries, or enhancing gun safety education, no matter what intent lawmakers publicly expressed. It’s about reducing the number of people who possess the semi-automatic firearms covered by the law. Supporters of the bill may claim that by doing so it will improve public safety, reduce firearm injuries, and enhance gun safety education, but it’s fundamental purpose is to make it more difficult to own one of these guns, which in turn will lead to some potential owners deciding its not worth the hassle. Don’t forget, this was the compromise accepted by lawmakers who really want to prohibit the sale and possession of these firearms altogether.
Compare that to the “why” of Bowie knife regulations. From the great Dave Kopel’s thorough explanation of the scope of 19th century Bowie knife laws:
For Bowie knives, handguns, and other arms, a few states prohibited sales. The very large majority, however, respected the right to keep and bear arms, including Bowie knives. These states allowed open carry while some of them forbade concealed carry. In the 19th century, legislatures tended to prefer that people carry openly; today, legislatures tend to favor concealed carry. Based on history and precedent, legislatures may regulate the mode of carry, as the the U.S. Supreme Court affirmed in New York State Rifle and Pistol Association v. Bruen, 142 S. Ct. 2111 (2022).
Besides regulating the mode of carry, many states restricted sales to minors. They also enacted special laws against misuse of arms.
Of the 220 state or territorial statutes cited in this post, 114 come from just 5 states: Mississippi, Alabama, Georgia, Virginia, and North Carolina. This is partly because these were the only states whose personal property tax statutes specifically included “Bowie knife” in their lists of taxable arms, along with other knives, such as “dirks.”
Georgia did ban the sale of Bowie knives, but that practice was declared unconstitutional by the Georgia Supreme Court in 1846.
The “why” for Bowie knife regulations was to prevent the criminal use of those items, but (with rare exceptions) they weren’t trying to prevent or regulate their purchase or possession. Which brings us to the substantial difference in the “how” in Colorado’s law and historical regulations on Bowie knives.
Again, the vast majority of these laws dealt with publicly carrying Bowie knives, daggers, and the like, and they certainly didn’t require a license to purchase one, nor did they impose any kind of training requirements on buyers. You could argue that a permit-to-purchase is similar to a surety law, but only those suspected to pose a risk to public safety were required to post a bond before they could lawfully bear arms. Colorado’s law, on the other hand, imposes these requirements on almost everyone who wants to purchase one of these restricted items.
Colorado’s law singles out purchasers of a class of firearms that are broadly popular and rarely used in crime and declares anyone who wants to own one go through training and additional vetting by their county sheriff before they can do so. That is not even remotely similar to the “hows” of Bowie knife regulations, and there was no national tradition of gun ownership in .either 1791 or 1868 that comes close to Colorado’s law restricting access to particular commonly owned arms.
Now, we’ve seen some federal courts get around this by declaring AR-15s and other so-called assault weapons have no Second Amendment protections to begin with, and it’s possible that the judge overseeing this lawsuit will eventually do the same… if he doesn’t grant the state’s request to dismiss the case altogether. That argument is patently absurd, but it’s been deployed in more than court, which is all the more reason for the Supreme Court to take a gun ban case and establish once and for all that modern sporting rifles are, in fact protected by our right to keep and bear arms. That wouldn’t result in the immediate overturning of Colorado’s law, but it would make it even more difficult for the state to defend it.
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