On Tuesday, May 15, the Boulder City Council unanimously voted to pass Ordinance 8245 which, among other things, enacts a ban on the purchase, sale, manufacture, or possession of assault weapons inside the city.
The move was not without controversy, as many local residents both for and against the measure showed up at the hearing to express their support and opposition. The ordinance comes in direct conflict with a Colorado state law passed back in 2003 and it is unclear whether courts will allow this local assault weapon ban to stand. In 2003, the Colorado legislature passed a state firearm preemption bill. The legislation clarified that on issues of gun control, state law was supreme and local municipalities could no longer pass gun control laws that go beyond the state has passed. The purpose of this law was simple and straight-forward. Colorado's state constitution includes the following language protecting the individual right to own and carry firearms: "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." The 2003 pre-emption law sought to create uniformity in Colorado's gun laws. Since the ownership and carrying of firearms is a right enumerated in the state's constitution, legislators saw the danger of allowing Colorado's 271 incorporated municipalities to each set their own gun laws. In their mind, it was inconceivable to expect Colorado gun owners to memorize each and every municipality's laws in order to exercise a right. The map below shows just how many incorporated municipalities are in the Denver metro area (and how complicated their boundaries are). The pre-emption bill sought to prevent situations like the Boulder assault weapon ban by passing the following statute: "A local government may not enact an ordinance, regulation, or other law that prohibits the sale, purchase, or possession of a firearm that a person may lawfully sell, purchase, or possess under state or federal law. Any such ordinance, regulation, or other law enacted by a local government prior to March 18, 2003, is void and unenforceable." (CRS § 29-11.7-103) Basically, the law says that if a firearm is legal to own under state and federal law, it must remain legal to own in each of Colorado's municipalities.
Shortly after the preemption bill passed, the City of Denver challenged the state firearm preemption law in court. City attorneys argued that Denver enjoyed home rule status and that because the city's gun laws were of particular local importance, they should be allowed to ban assault weapons and the open carry of firearms.
Lower courts agreed with the City of Denver and the case ultimately reached the Colorado Supreme Court. Allison Eid formerly held the position of Colorado's Solicitor General. She had argued that the state's gun preemption law trumped Denver's ordinance. When she was appointed to the Colorado Supreme Court, she had an ethical responsibility to recuse herself from the case that she had previously been involved with.
As a result of Eid's recusal, the case over Denver's gun laws was deadlocked 3-3 in the Supreme Court. That unusual tie meant that the lower court's ruling stood (but did not create binding statewide precedent). Since then, Denver has been allowed to keep certain gun control laws on the books, even though they conflict with this preemption statute.
The Boulder City Council is now arguing that the same exception that applied to Denver should apply to them as well.
Allison Eid no longer serves on the Colorado Supreme Court. In 2017, she was nominated by President Donald Trump to sit on the United States Court of Appeals for the Tenth Circuit. As a result, there is not currently anyone on the Colorado Supreme Court bench that would be ethically required to recuse themselves should the Boulder assault weapon ban reach their docket. Currently, all but one of the Supreme Court Justices have been appointed by a Democrat governor, and while that does not necessarily preclude the Boulder ban being overturned, they were appointed by Governors who emphatically disagreed with the state firearm preemption law.
Whereas most Colorado cities have been content with living under the state firearm preemption statute, Boulder is now challenging it and demanding the courts create a binding, statewide precedent.
If the Boulder assault weapon ban is allowed to stand and the Supreme Court rules that most of Colorado's 271 incorporated municipalities can craft their own gun control laws, both stricter and looser than what is allowed under state law, Colorado truly will enter uncharted territory both in terms of the state's preemption powers and the rights of Coloradans moving throughout the state to keep and bear arms.