imported post
centsi wrote:
Meyer didn't compare Denver with Rural areas; he contrasted Denver with them.
While you are correct that the term "compare" can be used to show similarity, it can also be used to show an act of examining two items for differences or similarities.
Merriam-Webster
Compare 2a: To examine the character or qualities of, especially in order to discover resemblances or differences.
This is the manner in which I used the term. Meyer compared Denver to rural areas and found they
contrasted with each other.
centsi
wrote:
He did single out Denver for different treatment than other localities when he used the words "at least insofar as Denver is concerned". If this ruling was intended to up-end SB 25 across the board, why would he use such language?
In his ruling Meyerpointed to the fact that:
"Unlike the legislation for concealed carry, Senate Bill 25 fails to set forth a comprehensive regulatory scheme that serves as uniform authority for open carry of firearms".
Despite any other statements or considerations, Meyer placed his decision on the fact that he felt SB25 did not affect laws concerningopen carry due to the fact that there are nostate laws that addressed open carry to use in preempting the Denver law. He basically states that throughthe absence ofregulatory law the state show no clear interest in regulating the matter, thereby leaving it open to local regulation.
As for up-ending SB25 across the board, as you mentioned, this was never the intent and not something he could do. SB25 was not on trial and, as such, the court couldrule not on itother than as to how it applied to the Denver law, which was the point of the trial.
Judge Meyer ruled on 5 disputed points in this case and in all five, he clearly pointed to whether SB25 applied to the point of law based on whether or not the state showed specific interest in regulating the given point of law by the presence or absence ofstate law.
In his ruling on Vehicle Carry:
Given the State's detailed regulatory scheme for concealed carry of handguns, I find and conclude that the portion of DRMC 38-117(f)(2) which reads "while traveling into or through the city to or from another jurisdiction, regardless of the number of times the person stops in the city or the other jurisdiction" is in conflict with state law and is preempted by state law.
In his ruling on Open Carry:
I find the State has failed to demonstrate a significant interest in requiring every city and town to allow open carry of firearms. Thus, I conclude that the City has proved, beyond a reasonable doubt, that C.R.S. §29-11.7-103, insofar as the state relies on it to preempt the ordinances at issue here, is an unconstitutional infringement on the home rule powers of the City and County of Denver as guaranteed by Article XX, § 6 of the Colorado Constitution.
In his ruling on Assault Weapons:
I find the State has failed to demonstrate a significant interest in requiring every city and town to allow assault weapons and Saturday night specials. Thus, I conclude that the City has proved, beyond a reasonable doubt, that C.R.S. §29-11.7-103, insofar as the state relies on it to preempt the ordinances at issue here, is an unconstitutional infringement on the home rule powers of the City and County of Denver as guaranteed by Article XX, § 6 of the Colorado Constitution.
In his ruling on Safe Storage:
State law is silent on the question of safe storage, and this ordinance does not prohibit the sale, purchase or possession of any firearm as described in C.R.S. §29-11.7-103. Therefore, the safe storage ordinance is not preempted.
In his ruling on Firearms in City Parks:
The State has not shown any substantial interest in requiring a municipality to open its parks to all guns... ...the City's local concern for policing its own parks collides with the statewide statutory scheme governing carrying concealed handguns with a permit. Since the ordinance prohibiting all firearms in parks conflicts with the state statutes on concealed carry, the ordinance is preempted by state law only as to concealed handguns carried with a permit.
As you can see, in each part of this case, Meyer made his final ruling based solely on the of whether or not there was state law in place to use in preempting local law.
His reference to local specific circumstances is a secondary issue to the application of SB25. Under home rule authority, if a local jurisdiction can show that they have a significantly different circumstance thatwas not considered by state law makers when drafting the regulating state law, then they can win exemption from preempting state law at least until state law can be clarified to include the circumstance in question.
The city of Denver used this argument in addition to the their primary argument of no preemption status for open carry in the hope that if the judge ruled that SB25 did preempt local law on open carry it would then find special circumstance. You are correct that Meyer DID agree that special circumstance did exist in Denver, however he did not base his final decision on that fact, rather, he ruled that it was a mute point because there was no state law on the matter to preempt the Denver law in the first place. Although present, Denver's special circumstance did not come into play in his final ruling on their open carry law.
centsi
wrote:
You know more than I about the legal definition of preemption.
Meyer defined preemption in his ruling:
Express conflicts exist when an ordinance or local regulation authorizes what state legislation forbids or forbids what state legislation authorizes. City of Commerce City, 40 P.3d at 1284. An implied conflict arises when a local ordinance and a state law prevent each other from effectuating their purposes without necessarily legislating on the sane subject matter. See e.g., City of Northglenn, 62 P.3d at 156; Town of Telluride, 3 P.3d at 37. Should a home rule ordinance or regulation conflict with state law in an area of mixed concern, the local law will be preempted.
Preemption requires the existence of a higher regulating law. In the case of open carry, there is no specific regulating area of state law to use in preempting local law. If the state had clearly mentioned open carry in its other regulatory statutes on firearms then the state could establish its intent to regulate open carry and the lack of a law prohibiting open carry would then show the states intent that it be legal, but as it stands, this intent cannot clearly be established, therefore, local jurisdictions can freely regulate the matter.
As a side note, in light of the fact that Meyer recognized the presence of special circumstance in Denver, based on their dense population, any future state law directed at open carry must clearly include densely populated areas or it will leave an open door for local challenge.
centsi
wrote:
I'm sure you would agree that the language is clear and unambiguous:
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.
Stripping out the dependent clauses and the "keep", "home" & "property" designations makes it even clearer:
The right of no person to bear arms in defense of his person shall be called in question.
I totally agree with you here, however, this is an issue to be challenged in a higher court. As long as the federal courts continue to allow for regulation the state and local levels will also.
centsi
wrote:
I certainly hope that a citizen will challenge both the City and the State on these grounds in the near future
I agree, but let's start with the feds. Fighting this point on the state level is like pushing a chain....the links (the states) go in every direction....but if you pull it by the first link (the feds) the rest eventually fall in line.
Doc