BY DAVE COULTER — On December 13, 2013, terror gripped a community already scarred by tragic gun violence. In just 80 seconds, a lone gunman entered Arapahoe High School, shot a fellow student point blank with a shotgun, set fire to the library with a Molotov cocktail, and then took his own life. The sole victim, Claire Davis, clung to life for eight days, but she tragically passed away on December 21, 2013.
The suburban-Denver shooting took place only miles away from the sites of the Columbine and Aurora movie theater shootings, and only 364 days after the Sandy Hook shooting in Newtown, Connecticut. For a community already wracked by this type of tragedy, the events at Arapahoe High School were particularly devastating.
A common reflex to gun related tragedies is to call into question the status quo of gun laws. Indeed, in response to the Aurora movie theater shooting and the Sandy Hook shooting, the State of Colorado enacted two new gun control laws. One law imposes universal background checks on gun purchases; the other bans the sale of high-capacity ammunition magazines holding more than fifteen rounds but grandfathers in those who have continuously possessed the magazine since the law’s passage. However, the laws failed to address any of the mental health issues associated with gun violence.
Prior to the Arapahoe High School shooting, President Obama said of the state’s new laws that “Colorado is proving a model of what’s possible” for gun control. But since their passage, the laws have faced considerable opposition. Colorado is considered a gun-friendly state, and the measures received no support from Republicans in the Colorado legislature. Firearm enthusiasts bristled about the new laws’ restrictions. Commensurate with gun owners’ concerns, a majority of sheriffs throughout Colorado have refused to enforce the laws. Aside from the separation of powers issue in the sheriffs’ refusal to enforce the laws enacted by the state’s elected officials, the sheriffs’ apprehensiveness of the laws suggests legitimate constitutional concerns.
Soon after their passage, a group of Colorado citizens, including 54 of the state’s 64 sheriffs, as well as Second Amendment interest groups, sued to invalidate the laws. The plaintiffs in Cooke v. Hickenlooper argued that the laws were unconstitutionally vague and violated the Second Amendment. However, on November 27, 2013, a federal judge dismissed much of the lawsuit for lack of standing. Judge Marcia S. Krieger found that gun vendors do not have standing to challenge the restriction on the sale of magazine clips that can be readily converted into high capacity magazines and that the sheriffs lack standing to bring suit in their official capacity because a “political subdivision of a state may not sue its parent state under certain provisions of the United States Constitution. . .”
But the judge also found that an individual citizen does have standing to challenge the “continuous possession” provision of the statute as unconstitutionally vague. Considering the merits of the case, the void-for-vagueness argument may have the greatest chance of success.
The void-for-vagueness doctrine holds a law invalid if it is too vague for the average citizen to understand what conduct is proscribed, at which citizens the law is directed, or what punishments may be imposed for a violation. The doctrine also helps protect against arbitrary and vindictive prosecution. The Colorado law’s proscription against high-capacity magazines, except for those continuously possessed before the law’s enactment, may be unconstitutionally vague. The law’s language does not indicate what constitutes continuous possession or what may abate continuous possession. For example, if a gun owner lends his firearm (with high-capacity magazine) to friends or family, has he forfeited continuous possession of the magazine to fall outside the law’s grandfather clause? Or if a gun owner’s firearm is seized by the government but later returned, has he lost the right to possess his high-capacity magazine? What of high-capacity magazines included in a person’s estate—must the legatee or intestate taker discard the magazine or does continuous possession include transfer of the property after one’s death?
John Cooke, the Weld County Sheriff, also raised another concern: how are law enforcement officers to differentiate between magazines that fall within and outside the scope of the grandfather clause? Without an effective way to differentiate between the two, the citizens of Colorado are at risk of arbitrary prosecutions for violation of the high-capacity magazine provision of the law.
It seems less likely that the Second Amendment claims will prevail. As interpreted by the Supreme Court in District of Columbia v. Heller and McDonald v. City of Chicago, Illinois, the Second Amendment protects individuals’ rights to possess firearms for traditionally lawful purposes and applies to the states. The Supreme Court identified self-defense within the home as one such traditionally lawful purpose.
To prove a Second Amendment violation, the plaintiffs will have to convince the court that the background check requirement impermissibly impedes citizens’ rights to possess a firearm. To the contrary, the law appears to ensure that those who purchase firearms will possess them only for lawful purposes. The Second Amendment challenge to the high-capacity magazine ban likewise seems flimsy. A high-capacity magazine, though perhaps useful, hardly seems essential to using a firearm for traditional lawful purposes. A high-capacity magazine would only be necessary for the likes of Tony Montana to defend his home. And only the worst of hunters would need a high-capacity magazine to defeat their game.
The tragedy at Arapahoe demonstrates the difficulty in trying to legislate away gun violence. Despite Colorado’s new gun laws, the Arapahoe High School gunman, an 18-year old, legally purchased a pump action shotgun on December 6, 2013 and a large amount of ammunition for the weapon the morning of the shooting.
At the core of the Arapahoe shooting—and similarly the Columbine, Aurora, Sandy Hook, and Tucson shootings—is a mental health issue. Attempts at eliminating these sorts of tragedies will have greater success if state legislatures and Congress focus their efforts on ailing mental health issues rather than restricting citizens’ access to firearms. A panel of the American Psychological Association agrees, finding that the most effective way to curtail gun violence without significantly curtailing Second Amendment rights is to treat the problem like a public health issue.
