Large Capacity Ammunition Magazines in Colorado

Posted on Monday, July 6th, 2015

Colorado prohibits the sale, transfer and possession of a “large-capacity magazine.”1

“Large-capacity magazine” means:

  • A fixed or detachable magazine, box, drum, feed strip, or similar device capable of accepting, or that is designed to be readily converted to accept, more than 15 rounds of ammunition;
  • A fixed, tubular shotgun magazine that holds more than 28 inches of shotgun shells, including any extension device that is attached to the magazine and holds additional shotgun shells; or
  • A nontubular, detachable magazine, box, drum, feed strip, or similar device that is capable of accepting more than eight shotgun shells when combined with a fixed magazine.2

“Large-capacity magazine” does not include:

  • A feeding device that has been permanently altered so that it cannot accommodate more than fifteen rounds of ammunition;
  • An attached tubular device designed to accept, and capable of operating only with, .22 rimfire ammunition; or
  • A tubular magazine that is contained in a lever-action firearm.3

A large-capacity magazine that is manufactured in Colorado after July 1, 2013, must include a permanent stamp or marking indicating that the large-capacity magazine was manufactured or assembled after July 1, 2013.  The stamp or marking must be legibly and conspicuously engraved or cast upon the outer surface of the large-capacity magazine.  The Colorado Bureau of Investigation may create rules for implementing this requirement, including additional identification information on each large-capacity magazine.4

Exceptions – A person may possess a large-capacity magazine if they owned the large-capacity magazine on or prior to July 1, 2013, and maintain continuous possession of the magazine.5  When a person charged with illegal possession of a large-capacity magazine claims to fall under this exception, the burden of proof is on the prosecution to prove otherwise.6

The large-capacity magazine ban does not apply to military or police agents that carry a firearm in the course of their official duties.  The ban also does not apply to an entity or employee of an entity engaged in the manufacture of large-capacity magazines within Colorado solely for transfer to any licensed gun dealer that sells large-capacity magazines exclusively to the armed forces, government agencies, a retailer operating outside of the state of Colorado, or a foreign national government approved by the U.S. for such transfers.7

See our Large Capacity Ammunition Magazines policy summary for a comprehensive discussion of this issue.

  1. Colo. Rev. Stat. § 18-12-302(1)(a). A violation of this prohibition will be punishable as a Class 2 misdemeanor, and it is a Class 6 felony to possess a large-capacity magazine during the commission of a felony or crime of violence. Colo. Rev. Stat. § 18-12-302(1)(a), (c). []
  2. Colo. Rev. Stat. § 18-12-301(2)(a). []
  3. Colo. Rev. Stat. § 18-12-301(2)(b). []
  4. Colo. Rev. Stat. § 18-12-303. []
  5. Colo. Rev. Stat. § 18-12-302(2)(a). []
  6. Colo. Rev. Stat. § 18-12-302(2)(b). []
  7. Colo. Rev. Stat. § 18-12-302(3). []

Guns in Schools in Colorado

Posted on Sunday, July 5th, 2015

Colorado prohibits any person from knowingly and unlawfully and without legal authority carrying, bringing, or having in his or her possession a firearm, whether loaded or unloaded,1 in or on the property of any public or private elementary, middle, junior high, high or vocational school, or any public or private college, university or seminary.2

Exceptions to this prohibition include:

  • Presenting an authorized public demonstration or exhibition pursuant to instruction in conjunction with an organized school or class;
  • Carrying out the necessary duties of an employee of an educational institution that require the use of a deadly weapon;
  • Participating in an authorized extracurricular activity or on an athletic team;
  • Possession of a firearm in the lawful possessor’s dwelling or place of business, or on property owned or under that person’s control at the time of possession;
  • Possession in a private automobile or other private means of conveyance for protection of that person, another person, or their property while traveling;
  • Possession of a handgun pursuant to a valid permit to carry a concealed handgun or a temporary emergency permit, except if the person was carrying a concealed handgun in violation of the state law described below that prohibits possession of a concealed handgun onto the property of a school;
  • Possession of a firearm by a school resource officer when carrying a weapon in conformance with the policy of the employing agency; or
  • Possession of a firearm for use in an educational program approved by a school that includes, but is not limited to, any course designed for the repair or maintenance of weapons.3

A concealed handgun permittee may only carry a handgun on the property of a public elementary, middle, junior high or high school if he or she is: 1) on duty as a security guard for the school; 2) within his or her private vehicle (if the permittee is not with the vehicle, the handgun must be within a closed compartment within the locked vehicle); or 3) upon undeveloped property owned by a school district used for hunting or shooting sports.4  This provision does not apply to colleges, universities, and seminaries.

Colorado requires the expulsion of any student who is determined to have brought a firearm to a school, or to have possessed a firearm at a school, for a period of not less than one year, except that the superintendent of the school district may modify this requirement for a student on a case-by-case basis if such modification is in writing. 5

In 2012, the Supreme Court of Colorado held that Colorado Concealed Carry Act’s comprehensive statewide purpose, broad language, and  narrow exclusions show that the Colorado General Assembly intended to divest the Board of Regents of its authority to regulate concealed handgun possession on University of Colorado campuses.6

See our Guns in Schools policy summary for a comprehensive discussion of this issue.

  1. As defined under Colo. Rev. Stat. § 18-1-901(3)(e). []
  2. Colo. Rev. Stat. § 18-12-105.5(1). []
  3. Colo. Rev. Stat. § 18-12-105.5(1), (3). []
  4. Colo. Rev. Stat. § 18-12-214(3). []
  5. Colo. Rev. Stat. § 22-33-106(1.5). []
  6. See Regents of the Univ. of Colo. v. Students for Concealed Carry on Campus, 271 P.3d 496 (Colo. 2012). []

Universal Background Checks and the “Private” Sale Loophole in Colorado

Posted on Sunday, July 5th, 2015

In Colorado, almost all firearm transfers between unlicensed persons must be processed by a licensed firearms dealer, subjecting the prospective purchaser to a background check.

In 2013, Colorado enacted a law requiring gun sellers who are not federally licensed dealers to initiate a background check when transferring a firearm. With the exceptions listed below, any unlicensed individual who seeks to transfer possession of a firearm to a prospective transferee must:  1) require that a background check is conducted on the prospective transferee by a licensed gun dealer; and 2) obtain approval of the transfer from the Colorado Bureau of Investigation (CBI) following the background check request.1

If the transferee is an entity (e.g. a business), then a background check must be conducted on each person who is authorized by the entity to possess a firearm.2

When a licensed dealer obtains a background check on a prospective transferee, the dealer must record the transfer and retain the records in the same manner as when conducting a sale, rental or exchange at retail. The dealer must also provide the transferor and transferee with a copy of the results of the background check, including CBI’s approval or disapproval of the transfer.3

A dealer may charge a fee of up to $10 for conducting a background check for an unlicensed seller.4

A transferee cannot accept possession of the firearm from an unlicensed seller until CBI approves the transfer. The transfer must be completed within 30 days of that approval.5

A transferee is prohibited from knowingly providing false information to a prospective transferor or to a licensed dealer for the purpose of acquiring a firearm.6

These transfer provisions do not apply to, inter alia:

  • A bona fide gift or loan between immediate family members;
  • A transfer that occurs by operation of law or because of the death of a person for whom the prospective transferor is an executor or administrator of an estate or a trustee of a trust created in a will;
  • A transfer that is temporary and occurs while in the home of the unlicensed transferee if:
    • The unlicensed transferee is not prohibited from possessing firearms; and
    • The unlicensed transferee reasonably believes that possession of the firearm is necessary to prevent imminent death or serious bodily injury to the unlicensed transferee;
  • A temporary transfer of possession without power of ownership or a title to ownership, which takes place:
    • At a shooting range located in or on premises owned by a duly incorporated organization organized for conservation purposes or to foster proficiency in firearms;
    • At a target firearm shooting competition under the auspices of, or approved by, a state agency or a nonprofit organization; or
    • While hunting, fishing, target shooting, or trapping if:
      • Legal in all places where the unlicensed transferee possesses the firearm; and
      • The unlicensed transferee holds any license or permit that is required for such activity;
  • A transfer of a firearm that is made to facilitate the repair or maintenance of the firearm, except that all parties who possess the firearm as part of such transaction must be able to legally possess a firearm;
  • Any temporary transfer that occurs while in the continuous presence of the owner of the firearm;
  • A temporary transfer for not more than 72 hours. A person who makes such a temporary transfer may be jointly and severally liable for damages proximately caused by the transferee’s subsequent unlawful use of the firearm; or
  • A member of the armed services who will be deployed outside of the U.S. in the next 30 days, to any immediate family member.7

When a person violates the above transfer requirements, the violation is punishable as a Class 1 misdemeanor and the person must be prohibited from possessing a firearm for two years, beginning on the date of his or her conviction.8 When a person is convicted, the State Court Administrator must report the conviction to CBI and to the National Instant Criminal Background Check System. The report must include information indicating that the person is prohibited from possessing a firearm for two years, beginning on the date of his or her conviction.9

See the Background Checks in Colorado section for further information about the procedure.

In Colorado, a person is criminally liable if he or she:

  • Intentionally, knowingly, or recklessly provides a handgun to any person under age 18;
  • Knows of a juvenile’s unlawful possession of a handgun and fails to make reasonable efforts to prevent the juvenile’s conduct;
  • Is aware of a substantial risk that a juvenile will use a handgun to commit a felony and permits the juvenile to possess a handgun;
  • Is aware of a substantial risk that a juvenile will use a handgun to commit a felony and fails to make reasonable efforts to prevent the commission of the offense;
  • Sells, rents, or transfers ownership of a long gun to a juvenile without the consent of his or her parent or guardian. This prohibition also applies to a person who allows unsupervised possession of a long gun to a juvenile without the consent of the juvenile’s parent or guardian;10 or
  • Violates the unlicensed transfer requirements by, for example, failing to have a licensed dealer conduct a background check on the transferee. A person violating the private transfer requirements can be held jointly and severally liable for any civil damages proximately caused by the transferee’s subsequent use of the firearm.11

See our policy summary on Universal Background Checks for a comprehensive discussion of this issue.

  1. Colo. Rev. Stat. § 18-12-112(1)(a). []
  2. Colo. Rev. Stat. § 18-12-112(1)(b), (2)(A). []
  3. Colo. Rev. Stat. § 18-12-112(2)(b), (c). []
  4. Colo. Rev. Stat. § 18-12-112(2)(d). []
  5. Colo. Rev. Stat. § 18-12-112(3)(a), (4). []
  6. Colo. Rev. Stat. § 18-12-112(3)(b). []
  7. Colo. Rev. Stat. § 18-12-112(6). []
  8. Colo. Rev. Stat. § 18-12-112(9)(a). []
  9. Id. []
  10. Colo. Rev. Stat. § 18-12-108.7. []
  11. Colo. Rev. Stat. § 18-12-112. []

Local Authority to Regulate Firearms in Idaho

Posted on Thursday, July 2nd, 2015

Under article XII, § 2 of the Idaho Constitution, “[a]ny county or incorporated city or town may make and enforce, within its limits, all such local police, sanitary and other regulations as are not in conflict with its charter or with the general laws.” However, article I, § 11 of the Idaho Constitution prohibits any laws imposing “licensure, registration or special taxation on the ownership or possession of firearms or ammunition.”

Moreover, in 2008, Idaho enacted Idaho Code § 18-3302J, which announces “the legislature’s intent to wholly occupy the field of firearms regulation within this state.” That section explains that “uniform laws regulating firearms are necessary to protect the individual citizen’s right to bear arms.”1 Section 18-3302J(2) states:

Except as expressly authorized by state statute, no county, city, agency, board or any other political subdivision of this state may adopt or enforce any law, rule, regulation, or ordinance which regulates in any manner the sale, acquisition, transfer, ownership, possession, transportation, carrying or storage of firearms or any element relating to firearms and components thereof, including ammunition.

However, a county may adopt ordinances to regulate, restrict or prohibit the discharge of firearms within its boundaries, so long as these ordinances do not apply to or affect:

  • A person discharging a firearm in the lawful defense of persons or property;
  • A person discharging a firearm in the course of lawful hunting;
  • A landowner and guests of the landowner discharging a firearm, when the discharge will not endanger persons or property;
  • A person lawfully discharging a firearm on a sport shooting range; or
  • A person discharging a firearm in the course of target shooting on public land if the discharge will not endanger persons or property.2

Similarly, a city may adopt ordinances to regulate, restrict or prohibit the discharge of firearms within its boundaries so long as these ordinances do not apply to or affect:

  • A person discharging a firearm in the lawful defense of person or persons or property; or
  • A person lawfully discharging a firearm on a sport shooting range.3

In addition, section 18-3302J does not affect:

  • The authority of the department of fish and game to make rules or regulations concerning the management of any wildlife of this state; and
  • The authority of counties and cities to regulate the location and construction of sport shooting ranges, subject to limitations provided in the Idaho Code.4

The provisions of section 18-3302J are declared to be severable.5

Section 18-3302(6) provides that a city, county or other political subdivision cannot modify the requirements for the issuance of a license to carry concealed weapons, nor shall any political subdivision ask a concealed weapons license applicant to voluntarily submit any information not required in section 18-3302.

During a state of emergency, “neither the governor nor any agency of any governmental entity or political subdivision of the state shall impose restrictions on the lawful possession, transfer, sale, transport, storage, display or use of firearms or ammunition.”6

There are no cases discussing or interpreting the statutes discussed above.

Sport Shooting Ranges

Local law is preempted and local governments do not have authority to establish or enforce noise standards on outdoor sport shooting ranges more restrictive than the standards in sections 67-9101 through 67-9105 (concerning sport shooting ranges owned by the state or a state agency for public use).7 A local government may not treat any action that does not constitute a “substantial change in use” as a violation of a local zoning ordinance, nor shall the undertaking of any such action cause an outdoor sport shooting range to be in violation of any zoning ordinance.8 Section 55-2604(5) lists actions that do not constitute a “substantial change in use.” A local unit of government may regulate noise produced as a result of a substantial change in the use of the range.9

A person who operates or uses a sport shooting range “shall not be subject to civil liability or criminal prosecution in any matter relating to noise or noise pollution resulting from the operation or use of the range if the range was established, constructed or operated prior to the implementation of any noise control laws, ordinances, rules or regulations, or if the range is in compliance with any noise control laws, ordinances, rules or regulations that applied to the range and its operation at the time of establishment, construction or initial operation of the range.”10 Furthermore, “[r]ules or regulations adopted by a state or local department or agency for limiting levels of noise in terms of decibel level which may occur in the outdoor atmosphere shall not apply to a sport shooting range.”11 Such a municipal noise control ordinance “may not require or be applied so as to require a sport shooting range to limit or eliminate shooting activities that have occurred on a regular basis at the range prior to the enactment of the ordinance.”12 Except in specified circumstances, “a person may not maintain a nuisance action for noise against a shooting range located in the vicinity of that person’s property” if the shooting range was established at the point when the property was acquired.13

However, a local unit of government may generally regulate the location and construction of a sport shooting range.14

Sections 55-2601 through 55-2606 do not apply to “state outdoor shooting ranges.”15 (Noise standards for these ranges are established by sections 67-9101 through 67-9105.) Local law is preempted and local governments do not have authority to regulate the operation and use of these ranges, nor do they have authority to establish noise standards for these ranges, just as for other sport shooting ranges.16 A person may not maintain a nuisance action for noise against one of these ranges if it is in compliance with sections 67-9101 through 67-9105.17 A new use—including a new residential use—of property in the vicinity of one of these ranges does not give rise to a right to maintain a nuisance action for noise against the range.18

There are no cases interpreting any of the statutes discussed above.

  1. Idaho Code Ann. § 18-3302J(1). []
  2. Idaho Code Ann. § 18-3302J(3). []
  3. Idaho Code Ann. § 18-3302J(4). []
  4. Idaho Code Ann. § 18-3302J(5). []
  5. Idaho Code Ann. § 18-3302J(6). []
  6. Idaho Code Ann. § 46-1008(7). []
  7. Idaho Code Ann. § 55-2605. []
  8. Id. []
  9. Idaho Code Ann. § 55-2603(2). []
  10. Idaho Code Ann. § 55-2601(1). []
  11. Idaho Code Ann. § 55-2601(2). []
  12. Idaho Code Ann. § 55-2601(3). []
  13. Idaho Code Ann. § 55-2602. []
  14. Idaho Code Ann. § 55-2603(1). []
  15. Idaho Code Ann. § 67-9102(1). []
  16. Idaho Code Ann. § 67-9105. []
  17. Idaho Code Ann. § 67-9103. []
  18. Idaho Code Ann. § 67-9104. []

Local Authority to Regulate Firearms in Kansas

Posted on Thursday, July 2nd, 2015

Kansas Statutes Annotated § 12-16,124(a) provides that:

No city or county shall adopt or enforce any ordinance, resolution or regulation, and no agent of any city or county shall take any administrative action, governing the purchase, transfer, ownership, storage, carrying or transporting of firearms or ammunition, or any component or combination thereof.

Any ordinance, resolution or regulation statutorily prohibited, adopted prior to July 1, 2014, shall be null and void.1

Section 75-7c17(a) provides that:

The legislature finds as a matter of public policy and fact that it is necessary to provide statewide uniform standards for issuing licenses to carry concealed handguns for self-defense and finds it necessary to occupy the field of regulation of the bearing of concealed handguns for self-defense to ensure that no honest, law-abiding person who qualifies under the provisions of this act is subjectively or arbitrarily denied the person’s rights. No city, county or other political subdivision of this state shall regulate, restrict or prohibit the carrying of concealed handguns by individuals except as provided in [certain provisions of state law, discussed below]. Any existing or future law, ordinance, rule, regulation or resolution enacted by any city, county or other political subdivision of this state that regulates, restricts or prohibits the carrying of concealed handguns by individuals except as provided in [the provisions discussed below], shall be null and void.2

Pursuant to Kansas Statutes Annotated § 12-16,124(b), cities and counties may not “adopt or enforce any ordinance, resolution or regulation relating to the sale of a firearm by an individual [who holds a Federal Firearms License] that is more restrictive than any ordinance, resolution or regulation relating to the sale of any other commercial good.”

Cities, counties, and political subdivisions may also restrict or prohibit the carrying of concealed weapons within a building or buildings of such entity, provided that notices are posted in accordance with rules and regulations adopted by the attorney general, marking them as premises where carrying a concealed handgun is prohibited.3

Prior to the enactment of section 12-16,124, the Supreme Court of Kansas relied on the home rule powers of cities in Kansas under art. XII, § 5 in upholding a local ordinance prohibiting carrying a firearm on the person in public.4

The Kansas Legislature has also immunized firearm manufacturers and dealers from certain civil suits by local governments. Kan. Stat. Ann. § 60-4501(a) states:

The authority to bring civil suit and right to recover against any firearms or ammunition manufacturer or federally licensed firearms or ammunition dealer, by or on behalf of the state or any political subdivision of the state, for damages, abatement of nuisance or injunctive relief arising from or relating to the lawful design, manufacture, marketing or sale of firearms or ammunition to the public shall be reserved exclusively to the state.

Section 60-4501(b) provides:

Nothing in this act shall prohibit a political subdivision from bringing an action against a firearms or ammunition manufacturer or federally licensed firearms or ammunition dealer for breach of contract, for breach of implied or express warranty or for damages caused to the employees or agents of such political subdivision by defects in firearms or ammunition purchased or used by such political subdivision.

In 2008, Kansas enacted a law prohibiting any officer or employee of the state or any political subdivision thereof, member of the Kansas national guard in the service of the state, or any person operating pursuant to or under color of state law, receiving state funds, under control of any official of the state or political subdivision thereof, or providing services to such officer, employee or other person, from doing the following during a declared official state of emergency:

  • Temporarily or permanently seizing, or authorizing seizure of, any firearm the possession of which is not prohibited under state law, other than as evidence in a criminal investigation; or
  • Requiring registration of any firearm for which registration is not required by state law.5

Section 58-3223 limits the local regulation of sport shooting ranges. Section 58-3223(a) provides that a sport shooting range that is not in violation of state law at the time of the adoption of an ordinance or resolution that regulates the range shall be permitted to continue in operation even if operation of the range at a later date does not conform to the new ordinance or resolution or amendment to an existing ordinance or resolution. In addition, a sport shooting range in existence on the effective date of section 58-3223 (July 1, 2001) in compliance with generally accepted operation practices, even if not in compliance with an ordinance or resolution of a local unit of government, shall be permitted to do the following within its preexisting geographic boundaries:

  • Repair, remodel or reinforce any improvement or facilities or building or structure as may be necessary in the interest of public safety or to secure the continued use of the building or improvement;
  • Reconstruct, repair, rebuild or resume the use of a facility or building damaged by fire, collapse, explosion, act of God or act of war occurring after the effective date of the act. The reconstruction, repair or restoration shall be completed within one year following the date of the damage or settlement of any property damage claim. If reconstruction, repair or restoration is not completed within one year, such reconstruction, repair or restoration may be terminated in the discretion of the local unit of government; or
  • Do anything authorized under generally accepted operation practices, including, but not limited to: (1) expanding or enhancing its membership or opportunities for public participation; and (2) reasonably expanding or increasing facilities or activities.6

Section 58-3224 states that sections 58-3221 – 58-3225 (governing sport shooting ranges) shall not prevent a local unit of government from regulating the location and construction of a sport shooting range “except as otherwise provided.” No governmental entity may take title to property which has a permanently located and improved sport shooting range, by condemnation, eminent domain or similar process when the proposed use of said property would be for shooting-related activities or recreational activities or for private or commercial development.7 This provision does not limit governmental exercise of eminent domain or easement necessary for infrastructure additions or improvements, such as highways, waterways or utilities.8

  1. Kan. Stat. Ann. § 12-16,124(c). []
  2. 2015 Kan. SB 45. []
  3. Kan. Stat. Ann. § 75-7c10(b)(2). []
  4. Junction City v. Lee, 532 P.2d 1292, 1296 (Kan. 1975). []
  5. Kan. Stat. Ann. § 48-959(a). []
  6. Kan. Stat. Ann. § 58-3223(b). []
  7. Section 58-3224(b). []
  8. Id. []

State Right to Bear Arms in Idaho

Posted on Thursday, July 2nd, 2015

Article I, § 11 of the Idaho Constitution provides:

The people have the right to keep and bear arms, which right shall not be abridged; but this provision shall not prevent the passage of laws to govern the carrying of weapons concealed on the person nor prevent passage of legislation providing minimum sentences for crimes committed while in possession of a firearm, nor prevent the passage of legislation providing penalties for the possession of firearms by a convicted felon, nor prevent the passage of any legislation punishing the use of a firearm. No law shall impose licensure, registration or special taxation on the ownership or possession of firearms or ammunition. Nor shall any law permit the confiscation of firearms, except those actually used in the commission of a felony.

As originally adopted, the provision read: “The people have the right to bear arms for their security and defense; but the legislature shall regulate the exercise of this right by law.” The provision was amended in 1978 to read as it now appears.

In State v. Woodward (a 1937 case), the Idaho Supreme Court discussed the ability to use a firearm for self-defense, and stated that under article I, § 11 (the original, pre-1978 version), the right to bear arms may not be denied by the state, but the legislature has the power to regulate this right and may prohibit the carrying of concealed weapons or prescribe “the kind or character of arms that may or may not be kept, carried or used, and various other things of a regulatory character.”1

Other case law examining the scope of the original version of article I, § 11 indicates that Idaho courts have treated the “right to keep and bear arms” as a personal, individual right, and held that while the legislature may not prohibit or deny the right completely, it has the authority to regulate the exercise of that right. For example, in the 1945 case State v. Hart, the court noted that it was “a reasonable exercise of the police power of a municipality to prohibit the carrying of concealed dangerous or deadly weapons.”2

There is little case law interpreting the current version of article I, § 11. In a 1984 case, State v. Grob, the Idaho Court of Appeals held that Idaho Code Ann. § 19-2520, which imposes an additional prison term for the commission of certain offenses while using a firearm, generally does not violate the state constitution. The court noted that, under the current version of article I, § 11, the legislature was expressly authorized to prescribe “minimum sentences for crimes committed while in possession of a firearm” and concluded that “whether examined against the 1978 or pre-1978 versions of Article 1, § 11, we believe [the challenged law] passes constitutional muster.”3

Finally, in 1979, the Idaho Attorney General opined that the current version of article I, § 11 does not: 1) “undermine the validity of the current Idaho Code prohibitions against the carrying of concealed weapons” under section 18-3302; or 2) affect the viability of state law on the seizure of firearms during searches incident to arrest.4

  1. 74 P.2d 92, 95 (Idaho 1937). []
  2. 157 P.2d 72, 73 (Idaho 1945); see also In re Brickey, 70 P. 609 (Idaho 1902). []
  3. 690 P.2d 951, 954 (Idaho Ct. App. 1984). []
  4. 1979 Op. Att’y Gen. Idaho 31, 1979 Ida. AG LEXIS 45 at *4, *8. []

State Right to Bear Arms in Kansas

Posted on Thursday, July 2nd, 2015

The Constitution of the State of Kansas provides that “A person has the right to keep and bear arms for the defense of self, family, home and state, for lawful hunting and recreational use, and for any other lawful purpose; but standing armies, in time of peace, are dangerous to liberty, and shall not be tolerated, and the military shall be in strict subordination to the civil power.”1

There has not been much recent case law on this subject.  In 1905, the Supreme Court of Kansas, in the case of City of Salina v. Blaksley, held that Bill of Rights section 4 (“section 4”) does not confer an individual right to “bear arms.” Rather, it only protects the rights of a member of the state militia or other military organization provided for by law.2 The Blaksley court rejected a section 4 challenge to a state statute that prohibited the carrying of a handgun while under the influence of alcohol, stating that section 4 “refers to the people as a collective body.”3 The court emphasized that section 4 “deals exclusively with the military; individual rights are not considered in this section.”4 The court noted that the defendant in the case was not a member of an organized militia or other military organization, “and was therefore not within the provision of the bill of rights and was not protected by its terms.”5

In more recent cases, the Supreme Court of Kansas, consistent with Blaksley, has largely rejected section 4 challenges to state statutes and local ordinances regulating firearms.6

  1. Kan. Const. B. of R. § 4. []
  2. City of Salina v. Blaksley, 83 P. 619 (Kan. 1905). []
  3. Id. at 620. []
  4. Id. []
  5. Id. at 621. []
  6. See State v. Bolin, 436 P.2d 978 (Kan. 1968) (rejecting section 4 challenge to a state law proscribing the ownership or possession of a pistol by any person convicted of burglary); Junction City v. Lee, 532 P.2d 1292 (Kan. 1975) (rejecting section 4 challenge to a local ordinance prohibiting certain use of handguns and knives);  see also State v. Knight, 241 P.3d 120, 133 (Kan. Ct. App. 2009), reh’g denied, 2011 Kan. LEXIS 391 (Kan. 2011) (rejecting section 4 challenge to a state regulation against carrying concealed weapons); but see Junction City v. Mevis, 601 P.2d 1145 (Kan. 1979) (striking down, as overbroad, a statute criminalizing most firearm possession). []

Colorado State Law Summary

Posted on Thursday, July 2nd, 2015

colorado

 

colorado

In 2012, Colorado experienced the horrific mass shooting in a movie theater in the City of Aurora. In 2013, Colorado significantly upgraded its gun laws.  Now Colorado:

Colorado still does not, however:

Local governments in Colorado, with the exception of Denver, generally lack authority to regulate firearms or ammunition.

In 2013, Colorado ranked 25th in the number of gun deaths per capita among the states. 619 people died from firearms injuries in Colorado in that year. Colorado has also been a crime gun exporter. Based on data published by Mayors Against Illegal Guns, in 2009, Colorado exported crime guns at almost twice the rate at which it imported them – in other words, guns that had been originally purchased in Colorado were recovered after being used in crimes in other states at twice the rate at which crime guns originally purchased outside Colorado were then recovered inside Colorado. Colorado ranked 19th in the number of crime guns exported.
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Domestic Violence & Firearms in Colorado

Posted on Thursday, July 2nd, 2015


 

Colorado enacted a law in 2013 to remove guns from the hands of domestic abusers.  The law incorporates the federal law that prohibits purchase or possession of a firearm or ammunition by people subject to certain domestic violence protective orders or convicted of certain domestic violence crimes.1 The law covers both domestic violence misdemeanants and felons by requiring the court to issue a prohibitive order upon sentencing.2  Abusers subject to these prohibitions are also subject to the federal law.

Notably, Colorado requires a protective order to be issued whenever a criminal case is pending to prohibit the defendant from harassing, molesting, intimidating, retaliating against, or tampering with any witness to or victim of the acts charged.  In domestic violence cases, this protective order may trigger the federal law, meaning that the person is prohibited from possessing firearms and ammunition while the case is pending.3 Under an older provision, the court may prohibit the defendant from possessing firearms during this time, even in some cases when the federal law is not triggered.4

The 2013 law also includes a provision prohibiting the purchase or possession of a firearm or ammunition by anyone subject to a temporary civil protection order.5 Such orders may be issued “ex parte” (without a full hearing) in certain circumstances. 6

The law makes possession of a firearm or ammunition during these protective orders punishable as a violation of the protective orders.7

The 2013 law also set forth a procedure for domestic abusers to surrender firearms and ammunition that they already own when they become subject to a protective order that triggers the federal law or a court issues an order upon conviction for a domestic violence offense.  The law generally requires the person to surrender firearms and ammunition not more than 24 hours of being served with a qualifying order, subject to certain exceptions, to any person who has undergone a background check.  If the person is held in the custody of a law enforcement agency, the surrender must occur within 24 hours of release. The person must file a receipt demonstrating that firearms and ammunition have been surrendered with the court within three business days of the surrender. The law includes extensive provisions to protect law enforcement’s decision to store, or not store, firearms or ammunition on behalf of a protective order defendant.8

Under an older provision, when an inmate is released from prison or other custody of the Colorado Department of Corrections following a conviction for a misdemeanor crime of domestic violence, the Department is required to submit a written statement to the inmate notifying him or her that it is a crime if he or she possesses or uses a firearm.9

Colorado does not explicitly authorize or require the removal of firearms or ammunition at the scene of a domestic violence incident.

See our Domestic Violence & Firearms policy summary for a comprehensive discussion of this issue.

  1. Colo. Rev. Stat. § 13-14-105.5,  18-1-1001(9), 18-6-801(8). []
  2. Colo. Rev. Stat. § 18-6-801(8). []
  3. Colo. Rev. Stat. § 18-1-1001(9). []
  4. Colo. Rev. Stat. § 18-1-1001(3)(c). []
  5. Colo. Rev. Stat. § 13-14-105.5(11). []
  6. Colo. Rev. Stat. § 13-14-104.5. []
  7. Colo. Rev. Stat. § 18-6-803.5(1)(c). []
  8. Colo. Rev. Stat. § 13-14-105.5,  18-1-1001(9), 18-6-801(8). []
  9. Colo. Rev. Stat. § 18-12-108(6)(c)(I). []

Background Checks in Indiana

Posted on Tuesday, June 30th, 2015

Federal law requires federally licensed firearms dealers (but not private sellers) to initiate a background check on the purchaser prior to sale of a firearm. Federal law provides states with the option of serving as a state “point of contact” and conducting their own background checks using state, as well as federal, records and databases, or having the checks performed by the FBI using only the National Instant Criminal Background Check System (“NICS”) database. (Note that state files are not always included in the federal database.)

Indiana is not a point of contact state for the NICS. Indiana law explicitly requires dealers to conduct a background check prior to transferring a handgun, by contacting the FBI directly.1 Although Indiana has no law explicitly requiring firearms dealers to initiate a background check prior to transferring a long gun, the federal law requires dealers to initiate a background check prior to the transfer of any kind of gun by contacting the FBI directly.2

See our Background Checks policy summary for a comprehensive discussion of this issue.

Indiana does not require private sellers (sellers who are not licensed dealers) to initiate a background check when transferring a firearm. See our Private Sales policy summary.

  1. Ind. Code Ann. § 35-47-2.5-4(a). []
  2. Federal Bureau of Investigation, National Instant Criminal Background Check System Participation Map, at http://www.fbi.gov/about-us/cjis/nics/general-information/participation-map (last visited Oct. 24, 2011). []