Connect with us

Uncategorized

Colorado Court Elaborates the “Reasonable Exercise” Test Under the Colorado Constitution’s Right to Keep and Bear Arms

Published

on

[ad_1]

Article II, section 13 of the Colorado Constitution reads:

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.

Monday’s decision in Rocky Mountain Gun Owners v. Polis clarified and summarized the “reasonable exercise” test, which the court had announced in the 1994 Robertson case; recall that state supreme courts are free to interpret their state constitutions as more protective than the federal Constitution, as protective, or less protective (though they must also enforce the federal Constitution, when litigants ask them to do so):

[T]he reasonable exercise test [set forth in the 1994 Robertson precedent] demands that government enactments implicating the article II, section 13 right [to keep and bear arms] have a legitimate government end within the police power, such as promoting the public health, safety, or welfare. And as its name suggests, it requires a “reasonable” fit between purpose and means. But in the article II, section 13 context, the ultimate function of the reasonable exercise test is to effectuate the substantive constraints imposed by article II, section 13 on otherwise rational government regulation.

Reflecting that function, the article II, section 13 reasonable exercise testunlike ordinary rational basis reviewdemands not just a conceivable legitimate purpose but an actual one. And, importantly, it does not tolerate government enactments that have either a purpose or effect of rendering the right to bear arms in self-defense a nullity. In short, the reasonable exercise test permits restrictions that may burden the right to bear arms but that still leave open ample means to exercise the core of that right; on the other hand, the test forbids restrictions that are so arbitrary or onerous as to amount to a denial of the right.

These features of the reasonable exercise test are apparent from our earliest application of article II, section 13. In Nakamura, the challenged legislation prohibited unnaturalized foreign-born residents from hunting any wild bird or animal except “in defense of persons or property” and, “to that end,” made it “unlawful for any unnaturalized foreign-born resident … to either own or be possessed of a shotgun or rifle of any make, or a pistol or firearm of any kind.” We acknowledged that the state’s identified interests were permissible ones: “[t]he state may preserve its wild game for its citizens” and “prevent the hunting and killing of same by aliens.” But we struck down the law nonetheless, reasoning that it was apparent that it was actually “designed to prevent possession of firearms by aliens, as much, if not more, than the protection of wild game within the state.”

Importantly, we found it “equally clear” that the act had the effect of “wholly disarm[ing] aliens for all purposes.” We held that the state “cannot disarm any class of persons or deprive them of the right guaranteed under section 13, article 2 of the Constitution, to bear arms in defense of home, person, and property.” In other words, “[t]he police power of a state … cannot be exercised in such manner as to work a practical abrogation of its provisions.”

Our later cases just as clearly demonstrate the independent bite of the reasonable exercise test. In Blue, we held that a statute prohibiting individuals with prior felony convictions from possessing weapons was a constitutional exercise of the police power under article II, section 13. “To be sure,” we explained, “the state legislature cannot, in the name of the police power, enact laws which render nugatory our Bill of Rights and other constitutional protections.” But we did not read the felon-in-possession statute “as an attempt to subvert the intent of [article II, section 13].”. And in Ford, an as-applied challenge to the same statute, we expressly stated that “the specific limitations of [article II, section 13] must be superimposed on the statute’s otherwise valid language,” and that a state may “validly restrict or regulate the right to possess arms where the purpose of such possession is not a constitutionally protected one” such as defense of home, person, or property. see also City of Lakewood v. Pillow (Colo. 1972) (striking down ordinance that made it unlawful for a person to possess a firearm in a vehicle or in a place of business for purpose of self-defense).

[I]n Robertson, we again explicitly noted that the right to bear arms in self-defense under article II, section 13 could be regulated but not prohibited. In upholding the Denver ordinance [that banned so-called “assault weapons” -EV], we looked to evidence confirming the city council’s expressed intent to “promote the health, safety, and security of the citizens of Denver” by “curbing crimeparticularly homicides.” We further relied on evidence that although the city sought to prohibit the possession and use of approximately 40 firearms, closer to 2,000 remained available for purchase and use in the United States. Given this evidence of the “narrow class of weapons regulated by the ordinance,” we had no trouble concluding that it did not “impose such an onerous restriction on the right to bear arms as to constitute an … illegitimate exercise of the state’s police power.”

In sum, under article II, section 13 of the Colorado Constitution, the government may regulate firearms so long as the enactment is (1) a reasonable exercise of the police power (2) that does not work a nullity of the right to bear arms in defense of home, person, or property. This test differs from rational basis review in that it requires an actual, not just conceivable, legitimate purpose related to health, safety, and welfare, and it establishes that nullifying the right to bear arms in self-defense is neither a legitimate purpose nor tolerable result. In these ways, it ensures that the specifically enumerated “right to bear arms in defense of home, person and property” in article II, section 13 stands as an independent, substantive limitation on otherwise rational government action.

The court went on to apply this to uphold a Colorado statute limiting “large-capacity magazines,” defined as magazines “capable of accepting, or … designed to be readily converted to accept, more than fifteen rounds.” (The court made clear that the magazines had to be designed to be readily converted to do that, and not just capable of being readily converted.) The court didn’t discuss how the statute would be analyzed under the Second Amendment, because plaintiffs had raised only a state constitutional challenge.

[ad_2]

Uncategorized

Sanders and Schumer call on McConnell to hold hearings to fight election conspiracy theories – KTVZ

Published

on

Sanders and Schumer call on McConnell to hold hearings to fight election conspiracy theories - KTVZ

[ad_1]

Sen. Bernie Sanders of Vermont and Senate Democratic Leader Chuck Schumer of New York are calling on Majority Leader Mitch McConnell to create a new bipartisan committee focused on election integrity and schedule hearings to reassure Americans over a process President Donald Trump has repeatedly sought to undermine.

There is growing anxiety among Democrats, and some Republicans, that Trump will not only continue to sow doubt over the legitimacy of the coming election but throw the subsequent count into chaos by declaring victory before all the votes can be tallied, including the millions that will arrive by mail.

In a letter to McConnell, Sanders and Schumer quote back the Kentucky senator’s own words, in which he attested to the reliability of mail-in voting by citing its successes in Oregon, Washington and Colorado, which have been using the system for years.

Trump has repeatedly questioned the validity of mail-in voting, promoted conspiracy theories questioning election security, called on supporters to act as unsanctioned “poll watchers,” and suggested that the absence of a clear result by the evening of November 3 would in some way cast doubt on the eventual outcome. Key allies in powerful positions, like Attorney General Bill Barr, have followed suit. Barr has persisted in puffing up a debunked claim that ballots received by mail would somehow strip the sender of their privacy — ignoring well-established safeguards.

By escalating the matter now, Sanders and Schumer are responding to growing concern, in partisan and nonpartisan spaces, that Americans are not adequately prepared for the potential of a longer-than-usual wait for results or Trump’s willingness to short-circuit the democratic process if he smells defeat.

“Democrats and Republicans in Congress must come together to ensure that we have a free and fair election where every vote is cast and counted without intimidation,” Sanders told CNN, “where no one has to put his or her health in danger to cast a ballot, and where we have full confidence in the results.”

The proposed hearings would invite a cross-section of election officials from across the country to testify to the security and reliability of mail-in, early- and in-person voting — subjects on which Sanders and Schumer, again, referenced McConnell’s own words.

“Despite the clear security of our vote-by-mail system, some have continued to undermine it with unsubstantiated claims of voter fraud,” they wrote. “As you have correctly said, people ‘can vote early, you can vote on Election Day, or you can drop it in the mail,’ and that voters should ‘not worry about your vote not counting.’”

The minority leader and Sanders, an independent who caucuses with the Democrats, also want more detailed discussion about the fraught hours, or days, after the polls close and a real-time watch of the election horse race potentially swings from one candidate to another.

“We know a number of states may well be counting ballots for a period of time after Election Day, and that those votes may be determinative in this election,” the senators wrote to McConnell. “To avoid disinformation, conspiracy theories, and suspicion about results, we must understand the likely timeline for this process.”

The letter goes on to reference the recent war games-style preparations conducted by a group called the Transition Integrity Project, a bipartisan gathering of operatives and academics that made headlines when some of the outcomes of their exercises — including “both street-level violence and political impasse” — were reported on in late July.

“A bipartisan group of experts and officials have studied multiple scenarios where the outcome of the election was not immediately known. Some of these scenarios resulted in unrest and even violence,” Sanders and Schumer wrote, suggesting the Senate should elevate similar discussions and familiarize the public with the uncertainties ahead. “We would like to hear from the most knowledgeable people in the country as to how we can do everything possible to make sure that the election and the period afterward is secure and peaceful.”

[ad_2]

Continue Reading

Uncategorized

HHS official sorry for conspiracy theory video

Published

on

HHS official sorry for conspiracy theory video

[ad_1]

HHS supported Caputo, with a statement that called him a critical, integral part of the presidents coronavirus response, leading on public messaging as Americans need public health information to defeat the COVID-19 pandemic.

There was no immediate statement from the White House.

Attempts to reach Caputo were unsuccessful.

On Capitol Hill, Sen. Patty Murray, D-Wash., called on Azar to fire Caputo, accusing the spokesman of trying to interfere with CDC reports to the medical and scientific community, as well as the public at large. And Senate Minority leader Chuck Schumer, D-N.Y., called on Azar himself to resign, citing interference with the CDC as one example of what he termed the administration’s failures.

Officials at CDC have privately complained of recent efforts by political appointees at main HHS to try to edit or press for changes in the agency’s weekly MMWR publications, a go-to resource for public health professionals.

MMWR articles are technical, but they reveal telling details. One published earlier this year noted that while Trump’s travel restrictions dramatically reduced travel from China in February, nothing was being done at that time to restrict travel from Italy and Europe, where the coronavirus was spreading widely and rapidly. Analysis of virus samples from hard-hit New York in March suggested it was introduced there from Europe and other parts of the U.S., the CDC article reported.

Caputo is an unswerving Trump loyalist. His recent book, The Ukraine Hoax, claims the presidents phony impeachment was rooted in a vast conspiracy.

[ad_2]

Continue Reading

Uncategorized

unwinona:This is exactly what conspiracy theorists and anti-vaxxers have done with their HIV/AIDS…

Published

on

unwinona:This is exactly what conspiracy theorists and anti-vaxxers have done with their HIV/AIDS...

[ad_1]

My RSS Feedunwinona:

This is exactly what conspiracy theorists and anti-vaxxers have done with their HIV/AIDS and Polio narrative (among others), only we’re seeing it escalated to weeks and months instead of years or decades.

[ad_2]

Continue Reading

Trending

Copyright © 2017 Zox News Theme. Theme by MVP Themes, powered by WordPress.