Colorado Supreme Court re: RKBA

cato · Mar 2, 2012

http://volokh.com/2012/03/01/colora...-protect-felons-rights-to-keep-and-bear-arms/

Eugine Volokh writes:

"As I noted last Fall, Colorado courts have treated the Colorado Constitution’s right to keep and bear arms provision as substantially protecting felons’ rights to keep guns for self-defense — an approach quite different from that used by the U.S. Supreme Court in interpreting the Second Amendment, or by other states’ courts interpreting those states’ constitutions. Today’s State v. Carbajal (Colo. Ct. App. Mar. 1, 2012)reaffirms that. "

Gunslinger · Mar 2, 2012

Thanks for posting. Interesting case. That being said, Federal Charges could be brought. I'm surprised they weren't.

Anyone who has been convicted of a felony is banned by federal law from ever possessing "any firearm or ammunition." Specifically a person "convicted in any court of a crime punishable by imprisonment for a term exceeding one year" cannot possess any firearm in any location. 18 U.S.C. 922(g) is the federal law that prohibits anyone ever convicted of any felony to ever possess any firearm either inside or outside of his home. The federal punishment for felon gun possession is up to 10 years in prison.

cato · Mar 2, 2012

Note this was not the Co Supreme Court. I can't change the title for some reason. A Mod has been PMed.

rushcreek2 · Mar 3, 2012

My understanding is that the U.S. Court of Appeals for the Tenth Circuit has consistently taken the view that when a state has restored the RTKBA - the relevant STATE FELONY CONVICTIONS are not predicate for application of 18 USC, SEC. 921/922 (federal POWPO statute). The 10th Circuit has clearly held that the 1994 amendment of CRS 18-12-108 DOES NOT NEGATE any prior restoration of rights under Article VII, Section 10.

In the case of Colorado felony convictions the 10th Circuit has interpreted the TOTALITY of Colorado law on this subject holding that CRS 18-12-108 only restricts the RTKBA for TEN YEARS FOLLOWING COMPLETION OF SENTENCE. This interpretation only applies to federal POWPO law.

Unfortunately, the State's official position maintains that the restriction is life-long. Regardless of this confusion, the Article 13 RTKBA affirmative defense remains available.

This restoration of ALL RIGHTS issue still awaits full vindication in Colorado courtroom as it pertains to eligibility for a CO CHP.

The main caveat to the constitutional affirmative defense in Colorado is that the previous offender is legally limited to in-home, and in-vehicle possession since public open carry presents the risk of complications such as menacing, trespass, or restricted locations violation charges that would negate the affirmative defense.

Concealed carry in Colorado without a permit would also negate the constitutional affirmative defense, and Colorado courts have yet to respect/recognize the "restoration" principle embodied in Article VII, Section 10 even though Michigan's restoration was honored in Seguna v Matejka.

The State of Colorado has exhibited some difficulty in recent years in coming to grips with the fact that the Colorado Constitution since its adoption in 1876 has in fact provided for the restoration of ALL RIGHTS OF CITIZENSHIP - WITHOUT EXCEPTION- once a convicted person has completed their sentence. The appellate court of late has become increasingly helpful in correcting this error.

In the absence of any collateral criminal offense, federal prosecution is not likely given the settled law stemming from 10th Circuit decisions regarding Colorado restoration of rights.

Gunslinger · Mar 4, 2012

rushcreek2 said:
My understanding is that the U.S. Court of Appeals for the Tenth Circuit has consistently taken the view that when a state has restored the RTKBA - the relevant STATE FELONY CONVICTIONS are not predicate for application of 18 USC, SEC. 921/922 (federal POWPO statute). The 10th Circuit has clearly held that the 1994 amendment of CRS 18-12-108 DOES NOT NEGATE any prior restoration of rights under Article VII, Section 10.

In the case of Colorado felony convictions the 10th Circuit has interpreted the TOTALITY of Colorado law on this subject holding that CRS 18-12-108 only restricts the RTKBA for TEN YEARS FOLLOWING COMPLETION OF SENTENCE. This interpretation only applies to federal POWPO law.

Unfortunately, the State's official position maintains that the restriction is life-long. Regardless of this confusion, the Article 13 RTKBA affirmative defense remains available.

This restoration of ALL RIGHTS issue still awaits full vindication in Colorado courtroom as it pertains to eligibility for a CO CHP.

The main caveat to the constitutional affirmative defense in Colorado is that the previous offender is legally limited to in-home, and in-vehicle possession since public open carry presents the risk of complications such as menacing, trespass, or restricted locations violation charges that would negate the affirmative defense.

Concealed carry in Colorado without a permit would also negate the constitutional affirmative defense, and Colorado courts have yet to respect/recognize the "restoration" principle embodied in Article VII, Section 10 even though Michigan's restoration was honored in Seguna v Matejka.

The State of Colorado has exhibited some difficulty in recent years in coming to grips with the fact that the Colorado Constitution since its adoption in 1876 has in fact provided for the restoration of ALL RIGHTS OF CITIZENSHIP - WITHOUT EXCEPTION- once a convicted person has completed their sentence. The appellate court of late has become increasingly helpful in correcting this error.

In the absence of any collateral criminal offense, federal prosecution is not likely given the settled law stemming from 10th Circuit decisions regarding Colorado restoration of rights.

It would seem that Federal Prosecution under 18 USC 922, supra, would be the ultimate determinant, however. The only case law I've seen has been ambiguous, and the construct between States' Rights under the BoR and the sovereignty clause, constitutionally, is edgy.

rushcreek2 · Mar 4, 2012

U.S. attorneys are currently bound under the 10th Circuit's consistent holdings ( U.S. v Hall, U.S. v Norman, and others) since CRS 18-12-108 was amended to apply to even nonviolent Colorado felony convictions. That doesn't mean the feds won't investigate the potential for prosecution. APPLICABLE State convictions are not predicate for federal POWPO application when the state law has previously restored the RTKBA - Any previous offender's "APPLICABILTY " being the key word .

Nothing I have stated should be interpreted, or construed to be an assertion or suggestion that exercise of the Art 2, Sec. 13 AFFIRMATIVE DEFENSE will not result in arrest, prosecution, and a trial by a jury that must either accept or reject this affirmative defense. The RIGHT exists, but the exercise of the right is subject to "legal" distinctions.

In other words if a person determines to exercise their right it would be prudent to maintain a low-profile, and above all else BEHAVE THEMSELVES. Possession beyond the "home & hearth" involves significant personal and financial risk- but as the saying goes........ "Better to be TRIED by 12 than carried by 6.

since9 · Mar 6, 2012

rushcreek2 said:
"Better to be tired by 12 than carried by 6."

I'm a night owl, so I can usually outlast 9 or 10 of a group of 12 before I get tired myself... :lol:

rushcreek2 · Mar 7, 2012

bOO-bOO noted & corrected.

Reflecting further - I recall that there may be some places in the world where being "tire -d" itself amounts to a death sentence.

The older I get, and the more information I try to file - the worse my spelling gets.

Seriously though - this POWPO issue needs some attention in the General Assembly.

The pre-1994 CRS 18-12-108 should be re-established for POWPO under Colorado law. The case law relied upon to support the current statute is based upon the PRE-1994 provisions (applicable only to convictions for arson, burglary, & force or threat of force). Of course even that provision was unconstitutional - since Article VII, Section 10 has never been LAWFULLY amended.

The current POWPO policy in Colorado is a smoke & mirrors charade - precisely because the CO Constitution provides for the investment (restoration) of ALL RIGHTS OF CITIZENSHIP -WITHOUT EXCEPTION PROVIDED THEREIN.

since9 · Mar 8, 2012

What'S "POWPO?"

rushcreek2 · Mar 8, 2012

POWPO is the criminal justice system's acronym for "possession of weapons by previous offenders" addressed under Colorado law by CRS 18-12-108.

The Colorado CJS is aware that Article VII, Section 10 precludes SUCCESSFUL prosecution after sentence is completed simply for lawful exercise of the Article 2, Sec 13 RTKBA in Colorado - hence the current appellate level reversals/remands on Colorado POWPO convictions wherein motions to tender the affirmative constitutional RTKBA defense were denied.

The State has to prove in trial that the purpose for possession was not lawful defense of person, home, or property - or as might be otherwise stated - possession of a weapon was for a criminal purpose.

Presumably sporting possession would not qualify as an affirmative defense against POWPO since Articile 2, Sec 13 does not deal with hunting - only self defense.

Meanwhile most law enforcement agencies in Colorado continue to engage in the official efforts to suppress the free exercise of this constitutionally restored right of citizenship by ignoring the Article VII, Section 10 provision of that Colorado Constitution they are duly sworn to uphold..............

Colorado Supreme Court re: RKBA

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