Why Colorado Needs Firearms Preemption

Number: 99-P
Date: Mar. 11, 1999

Synopsis: House Bills 1305 and 1316 specify that all gun laws be made by the state legislature, not by city or county governments. These bills are essential to protect the constitutional right to keep and bear arms of the people of Colorado. Careful examination of existing local laws show that they do not protect public safety, but instead place unjustifiable burdens on the exercise of constitutional rights. In this Backgrounder, we detail some (but by no means all) of the unjustifiable gun laws

Aurora ammunition ban

An Aurora ordinance states that any ammunition coated or treated with Teflon or similar synthetic compound is unlawful.

Many target shooters use some types of Federal brand ammunition, which has basic lead bullets. Some more expensive versions of the Federal bullets are coated with Teflon. This coating is provided on this readily-available commercial ammunition to keep the pistol from having too much lead build-up in the barrel from higher-velocity bullets. The Teflon reduces the abrasion as the bullet passes through the barrel, and thereby reduces how much lead is abraded off the bullet and deposited in the barrel.

This normal ammunition--which is banned by Aurora--is not the infamous "cop-killer" extremely-penetrant ammunition. Such ammunition is banned by federal law, and the federal definition has nothing to do with teflon. Rather, "armor piercing ammunition" is a handgun bullet "constructed entirely" from "tungsten alloys, steel, iron, brass, bronze, berylium copper, or depleted uranium." 27 Code of Federal Regulations § 178.11.

The Aurora "teflon" ban is a perfect example of how local governments lack the expertise to craft appropriate firearms laws. The federal ban (which, by the way, was supported by the National Rifle Association) focuses on the types of bullet materials which give a bullet armor-piercing capability. The Aurora ban does nothing about high-penetration bullets. Instead, the Aurora law merely bans a type of bullet coating.

When the Colorado legislature enacts gun laws, the legislature usually brings in experts of all types to craft technically appropriate legislation. But the Aurora government apparently enacted a law based on little more than what some councilperson had heard from a television program.

Thus, it is now illegal in Aurora to possess ordinary Federal brand ammunition, which has no more penetrating power than any other commercially-available ammunition, and which certainly will not penetrate a police jacket.

The Federal ammunition is perfectly legal in all other areas of the State, and can be purchased over the counter by anyone legally capable of buying pistol ammunition. Yet, if a citizen were to bring such ammunition to a target shooting range in Aurora, he could be arrested.

Denver property confiscation

Denver's property confiscation ordinances are discussed in a separate Independence Institute Issue Backgrounder. Briefly put, the ordinances allow the confiscation of the gun and the car of people with concealed handgun permitswho travel through Denver. The ordinances make a mockery of due process; for example the ordinances declare that judges must enforce them "without regard to...the culpability or innocence of those who hold these rights." (Denver R.M.C. § 37-70(a).)

[Note: The Colorado General Assembly has passed legislation which fixes this problem for people traveling between government jurisdictions. The problem remains for intra-jurisdiction travel.]

Denver juvenile "weapons" ban

Denver's juvenile weapons ordinance is now touted as the reason for Denver's recent drop in homicides--although the decline in crime in Denver is no greater than the trend in most other large American cities in the same period. And the statewide juvenile handgun law (enacted three months after the Denver ordinance) would remain in place, and restrict most handgun possession by juveniles.

But as detailed in a 1993 Independence Institute Issue Paper, the Denver ban goes far beyond any reasonable form of gun control. In Denver, it is currently illegal to allow someone under 16 years old to even touch a gun, even during a safety training class.

It is even illegal for a father and son to drive to a hunting trip in the Yampa Valley with an unloaded rifle in the rack of a pick-up truck.

Read the "Spot the Crimes" op-ed attached to the end of this Issue Backgrounder, and decide whether Denver's ordinance is an asset to public safety--or a poorly written exercise in public relations from politicians who hold the Second Amendment in complete contempt.


The forfeiture ordinance states that "In every case where a person is charged with a violation involving a weapons offense, he/she shall forfeit to the City such dangerous or illegal


t is unlawful to carry a firearm where vinous, spirituous or malt liquors are sold, but this ordinance does not apply to peace officers or proprietors. This would make it illegal for a concealed-carry permit holder even to walk into a liquor store and buy a bottle of wine for dinner that night. It is also illegal for a person with a concealed handgun permit to go into a grocery store, since most grocery stores sell beer. Likewise, it is illegal for a person with a concealed handgun permit to have dinner with her spouse in any restaurant which serves liquor--even if the permit holder never drinks a drop. Thus, the average permit holder is in danger of arrest for the perfectly innocent acts of going to a grocery store or going out to dinner.


Colorado law currently allows persons to carry a handgun in their place of business for lawful protecting, or in their automobile for protection for lawful protection "while traveling." (C.R.S. § 18-12-105.) Like Denver, Thornton drastically narrows the statewide law, and allows business owners or travelers to carry only when there is a direct or immediate threat! Thus, proprietors of small businesses, or travelers, are deprived of their right to self-protection. Thornton and Denver apparently expect that small business owners will be able to ask robbers to wait a minute with the robbery, so that the owner can lawfully retrieve her handgun.

Constitutional priorities

The purpose of state government is not to make local government officials happy. Rather, the purpose of government, the Declaration of Independence teaches, is to protect human rights, which come from God, not the government. In our Colorado Constitution, the rights of the people are more important than the powers of government. Immediately after Article I of our State Constitution (defining the boundaries of the state), Article II sets forth the Bill of Rights, beginning, "In order to assert our rights, acknowledge our duties, and proclaim the principles upon which our government is founded, we declare:" Thus, the Bill of Rights precedesthe creation of any of the branches of state government (Articles III through VI). Local governments do not come until Article XIV (counties) and Article XX (home rule cities and towns).

If local governments censored speech or discriminated against minorities, the Legislature would act to halt those abuses. Likewise, when local governments attack the right to arms, or take property without due process, the Legislature is also obligated to act. Every resident of Colorado is entitled to enjoy the full benefits of the Colorado Constitution's Bill of Rights in every square inch of the state. That is why we have a state government. Preemption legislation such as House Bills 1305 and 1316 is not an interference with local law making, because local governments have no lawful authority to infringe the Colorado Constitution's Bill of Rights. Preemption legislation is long overdue, to remove from the people of Colorado the burden of intolerant, ignorant, oppressive, and illegal "laws."


Prepared by Bill Dietrick and David B. Kopel, for the Independence Institute

March 10, 1999




By Donald DeKieffer

In 1993, the Denver City Council adopted two ordinances which criminalize many everyday activities. See if you can spot all the newly-created crimes.

The scene is the kitchen of the Arnold house in Denver.

The cast is Bob Arnold (Father and Husband); Melissa Arnold (Mother and Wife); Billy Arnold (Age 13); and June Arnold (Age 17).

Dad: "Where's June?"

Mom: "Oh, she's over at Mrs. Dempsey's with the girls from the Church. You know, since Jack died, Mrs. Dempsey has had a hard time cleaning up that back lot of theirs. She has emphysema and just can't get out much any more."

Dad: "That back lot is totally overgrown. I'll bet the city inspectors told her to clean it up."

Mom: "That's right, but Mrs. Dempsey doesn't have much money, so the girls volunteered to help. She went over there with your rake, weed-whacker, and machete. I told her to be sure to clean them up when she gets back."

Billy: (entering the kitchen) "Hi everybody!"

Dad: "What are you so excited about?"

Billy: "Oh, Dad, geez. I'm going to Scout Camp tomorrow. Can't a person get a little excited now and then?"

Dad: "Just checking. By the way, are you entering the marksmanship competition again?"

Billy: "Sure. I came in second last year, but that was because we had to use the .22 rifles they gave us. This year they said we could bring our own rifles if they were safe."

Dad: "All right. But let's run through some of the safety lessons again."

Billy: "We have to -- again?" We've been all through that about a million times."

Dad: "Yes, again. A million and one can't hurt. Bring the .22 here from the gun cabinet in the den. Here are the keys. The bolt is in the bottom drawer. You have to use this other key for that."

(Billy leaves and returns with a .22 rifle and a bolt)

Dad: "All right, the first thing I want you to do is to clean and lubricate the rifle."

Billy: "But Dad, I just cleaned it last week and it hasn't been fired since then!"

Dad: "Clean the rifle. I'll watch."

(Billy proceeds to clean the rifle)

Dad: "OK, now I want you to get the trigger lock. It's in the top drawer of the gun cabinet. You still have the keys, don't you?"

(Billy returns with trigger lock)

Dad: "Now, whenever you are not using this rifle at camp, I want it to be locked in a gun case. And I want you to have this trigger lock on it and I want the gun case locked in the Camp Director's safe. Here are the keys to the trigger lock and the case. Wear them around your neck on a bead chain."

Billy: "But all the camp makes us do is to lock it up in the Director's office. Why do I have to do all these other things?"

Dad: "Because having a firearm is a responsibility. And because if you don't, I'm not going to let you take the rifle."

Billy: "Geez, Dad. OK already."

(June Arnold enters kitchen from outside)

June: "I'm bushed. I never saw such huge weeds. It took four of us two hours just to chop them down."

Mom: "Did you put away all the tools?"

June: "Yeah, they're in the shed."

Mom: "Did you clean them like I told you?"

June: "Oh, I forgot -- be right back."

Billy: "She looks hot. I think I'll be a good brother and help her out."

June: "Billy, I bought you a present for camp. Here."

Billy: (Opening present): "A Bowie Knife! Thanks, Sis. All the guys at Camp had one of these last year. All I had was that dinky Swiss Army knife."

(Knock on back door -- policeman in doorway)

Bob: "May I help you, Officer?"

Policeman: "Are you Robert Arnold?"

Bob: "I am. Is there something wrong?"

Policeman: "We have received a complaint from one of your neighbors that you are a dangerous criminal. From my personal observation, I can confirm that you have committed several serious crimes, each punishable by a half-year in jail. You have the right to remain silent....."

Identify the crimes.


Under 1993 Denver ordinances, it is a crime for parents to allow their children to possess "weapons" or to permit them to have access to any firearm whatsoever.

Dangerous "weapons" include knives more than 3" long (the machete and the Bowie knife). Also, allowing minors to clean guns and have access to keys to gun cabinets constitutes a crime.

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