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The Litigator


Jun 15, 2018

Known nationally as “the People’s Republic of Boulder,” the city at the foot of the majestic Colorado Flatirons does many strange things, but last month it went totally off the rails by adopting an ordinance banning some of the most commonly used firearms and magazines in the United States.

Attorneys from the Mountain States Legal Foundation attended the Boulder City Council meeting as it debated the final version of the ordinance and told city council members the ordinance violated several provisions of the Constitution, the Colorado Constitution, and Colorado law.  They did not care; they passed it anyway.  The very next day, Mountain States Legal Foundation filed a lawsuit in Colorado federal district court.

We sued on behalf of Jon Caldara, a pillar of the community and an outspoken opponent of the ban; the Boulder Rifle Club, which has served the community and firearm owners since 1889; Bison Tactical, a small Boulder business that caters to competitive shooters and those seeking to defend themselves; and Tyler Faye, a 20-year old man who, for the first time since he turned 18, may not own a gun, thanks to Boulder’s actions.

On May 15, the Boulder City Council amended the Boulder Revised Code to ban a vast number of rifles, shotguns, pistols, and magazines, and raised the minimum age for firearm possession to 21.  The ordinance was passed unanimously, despite an overwhelming number of public statements, telephone calls, and emails expressing concerns with and opposition to the new ordinance.  Those who, intentionally or not, violate the ordinance are subject to up to $1,000 in fines and 90 days in jail per violation.

Sadly, for those at risk of disarmament, says Cody J. Wisniewski, who filed the hard-hitting 59-page complaint, “Boulder’s ordinance accomplishes nothing other than making criminals of law-abiding citizens.  It is tantamount to Boulder attempting to stop drunk driving by banning Subarus.”

Boulder bans the purchase, possession, sale, and transfer of some of the most popular firearms and self-defense tools in the United States; but those exact same firearms and tools may be bought, owned, sold, and conveyed no more than 5 minutes from where the council made its decision, as well as throughout the state of Colorado and across the United States. 

For those who wish to keep their legally purchased but newly-banned firearms, they must register them with the Boulder Police Department by presenting them, providing personal information, passing yet another background check, and paying a fee.  Those who wish to protect their privacy rights but still comply with the ordinance must remove their newly-banned firearms from the city limits, render them permanently inoperable, or surrender them, without any form of compensation, to the Boulder Police Department.
As for the magazines Boulder banned, which are legal at the state and federal level, they must be removed, surrendered, or destroyed.

Good grief, where to begin?  Of course, we begin with the Second Amendment, which protects the unalienable, natural, and fundamental right of self-defense.  Then there is the Due Process Clause, which provides, “No person shall ... be deprived of life, liberty, or property, without due process of law” a protection against “arbitrary action of government,” which includes retroactive laws.  The Takings Clause, which provides “private property [shall not] be taken for public use, without just compensation.”  Plus, the Privileges or Immunities Clause, which protects the right to keep and bear arms against state infringement.  Then, as to those residents who feel they must register their legal, but banned, firearms with Boulder police, there is the First Amendment’s bar on compelled speech.  These are in addition to the ways the ordinance violates Colorado’s Constitution and state laws.

We have a proud, three-decades old history of defending the natural, unalienable, and fundamental right to self-defense, which began when we fought for Montana rancher John Shuler who killed a grizzly bear in defense of himself and his property.  Nonetheless, he was persecuted by the federal government for eight years, which argued that he had no right to take his rifle outside his house to protect himself.  The case and our victory were discussed often by Rush Limbaugh and appeared in Reader’s Digest.

When the Supreme Court of the United States ruled that the federal government had no right to deny residents of Washington, D.C. their self-defense rights in District of Columbia v. Heller, we were there with a friend of the court brief.  In fact, during oral argument, Justice Kennedy began his questioning with a reference to our Shuler case.

When the Supreme Court of the United States ruled Chicago could not deny residents their Second Amendment right of self-defense, in McDonald v. Chicago, we were not only there with a friend of the court brief, but our brief was so noteworthy, Justice Alito cited to it in his opinion.

When Martha Altman was denied her right to carry her concealed self-defense firearm on the campus of the University of Colorado, we sued and won a unanimous ruling before the Colorado Supreme Court.  She said it was “liberating” because she could defend herself.  When Elizabeth Nesbitt was barred from carrying her self-defense firearm on land managed by the U.S. Army Corps of Engineers that is isolated, remote, and unpatrolled, we won a victory that forced the Corps to change its rules for all Americans. 

We are proud of our Second Amendment battles.  We believe Boulder is wrong and courts will agree.  We hope you will support this crucial fight.


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