A Colorado state court judge entered an Order on March 12, 2021, striking down two ordinances passed by the City of Boulder which banned possession within the City’s limits of all “assault weapons” on a list created by the City Council, including AR-15 style rifles, and large-capacity magazines (LCMs) allowing for 10 or more rounds, for any firearm.

The decision was not based on Second Amendment issues.  The Plaintiff in the case brought suit in Colorado state court arguing that the two ordinances were preempted by Colorado state law which precludes cities and counties from imposing stricter gun-control measures than those put in place by the state law.  Possession of AR-15 style rifles and LCMs is lawful under Colorado law, and the City’s restrictions were invalid as a result of the “preemption” doctrine.

There are some interesting aspects to Colorado state law that apply to this decision.

In Colorado, cities and towns that have populations of over 2,000 have the power to make, amend, and replace city charters.  Home-rule cities are guaranteed independence from state control in governing local and municipal matters. In matters of local concern, home-rule ordinances supersede conflicting state statutes. However, when a home-rule ordinance conflicts with state law in a matter of statewide or mixed state and local concern, the conflicting provision of the home-rule ordinance is preempted by the state law.

The issue in the case came down to a question of whether the regulations on assault weapons and high capacity magazines passed by the City of Boulder were matters of “statewide or mixed state and local concern”, or whether they were pure “Home-rule” issues where Boulder was authorized to go its own way.

Boulder argued this was a “home-rule” issue that involved the City’s use of its police powers to safeguard the residents.

The decision recognizes the wide-latitude given to “police powers” under the “home-rule” doctrine but finds nevertheless that because the issue involved with the ordinances extends beyond being a purely local matter, the “policy powers” justification does not serve to evade the preemption doctrine.

Several factors guide courts in their inquiry [on whether state, local, or mixed state and local concerns]
(1) the need for statewide uniformity of regulation;
(2) the extraterritorial impact of the local regulation;
(3) whether the matter has traditionally been regulated at the state or local level;
and
(4) whether the Colorado Constitution specifically commits the matter to either
state or local regulation.

In addressing the first factor, Judge Andrew Hartman touched on Second Amendment concerns without identifying them specifically as such:

The Court finds that the need for statewide uniformity favors the state’s interest in regulating assault weapons and LCMs. Statewide uniformity in regulations prohibiting the possession and transfer of assault weapons and LCMs aligns with the legislature’s declared interest in protecting citizen’s fundamental right to bear arms and consistent treatment under criminal law….  It recognizes the need for expectations of consistency in treatment of assault weapons and LCMs and protection of the right to bear arms and defend person and property.

The language of the opinion makes the point that this “right to bear arms” is found in Colorado law — and the use of this language is not necessarily a reference to the Second Amendment.  But it is undeniable that the language of Colorado law on the subject adopts the language of the Second Amendment, and does not exist separate and independent of the Second Amendment.

The Court finds the second factor weighs in favor of the state’s interest in regulating assault weapons and magazines. The Ordinance’s assault weapons and LCMs ban have serious consequences for non-residents in the City of Boulder.

This concern is self-evident.  A law-abiding citizen suddenly becomes a criminal in the City of Boulder simply by passing through the City’s limits while on the way from one place in Colorado to another without doing a single thing to make that so.  There is no logic to such a formulation of a criminal statute.

Because both local governments and the state have a history of comprehensive regulations related to firearms, the Court finds that the third factor favors that the regulation of assault weapons and LCMs is a matter of mixed statewide and local concern.

As noted above, the fact that the issue is a matter of “mixed” concern favors the invocation of the “preemption” doctrine since, as noted, there are historical aspects of state concern that tend to over-ride the claim that the issue is one of pure “home-rule.”

The Constitution does not commit the regulation of assault weapons and LCMs to municipalities or to the state…. Neither state nor home-rule city is vested with authority under the constitution to regulate firearms and ammunition, and both may exercise their police power to regulate weapons. Therefore, the Court finds the fourth factors suggests the matter is one of mixed local and statewide concern…. The General Assembly declared … that the regulation of firearms is a matter of statewide concern and that it is necessary to provide statewide laws regulating ownership and possession of firearms. The General Assembly … considered the legislature’s duty to protect the fundamental right to bear arms, that there is widespread inconsistency in firearms regulations among municipalities in the state…. The Court finds the statewide interest in regulating firearms is present.

A pending lawsuit in federal court challenged the Boulder ordinances on Second Amendment grounds.  If the City of Boulder does not appeal, that suit is likely to be dismissed now as moot and the actual Second Amendment claim won’t be reached.

This is not the first time that restrictions sought to be imposed by local government authorities on firearm ownership or possession have been stricken down as being in conflict with state law.  Other types of restrictions on gun ownership imposed by local governments have been invalidated by courts in Washington and Pennsylvania.  Hopefully, the trend of court decisions will hold, and where state courts don’t step in to solve the problem, federal claims based on Second Amendment rights remain to be pursued.