Friday, April 16, 2010
Good News and Bad News for Colorado Gun Rights
First the good news: A panel of the Colorado Court of Appeals (Taubman Sternberg and Hawthorne, the author ) has declared that the CU ban (and the very recent CSU ban as well, by implication) on people, with concealed carry permits, having weapons on a University campus goes against the statutory intent of the concealed carry statute (wherein the ability to carry applies everywhere unless specifically excepted in the statute--and it only mentions elementary, junior high and high schools). The bad news is that the court seems to have muffed the constitutional challenge.
In Colorado a law that does not impinge on a fundamental right gets 'rational basis' review. That is, if the person attacking the law as unconstitutional can't show beyond a reasonable doubt that there is no rational basis for the government to enact the law, it's constitutional. That's a very difficult burden and I doubt the number of successful constitutional challenges to such statutes exceed the number of digits of one human hand. On the other hand, if the statute impinges on a fundamental right, the law gets strict scrutiny, and then the government has to show that the law serves a compelling state interest and is narrowly drawn so that no other rational alternative can effect that compelling state interest. This is a difficult burden for the state to carry and usually laws are struck down under strict scrutiny. These two different rules of review are virtually the opposite ends of the entire spectrum of review.
So what did this Court do? The judges crafted a middle ground (based on the execrable Robertson case (dealing with the Denver assault weapon ban)), which middle ground review was called rational exercise. This is the dumb way to go. What idiot (besides the four liberal Justices on the U.S. Supreme Court) doesn't think the right to keep and bear arms in the Bill of Rights is a fundamental right?
I guess we'll find out. I wonder if the coming ruling (5-4) of the U.S. Supremes in the Chicago gun case, finding that the 2nd Amendment is indeed a fundamental right, will have any effect on our Supreme Court's decision here ( if CU-D is dumb enough to appeal this).
In Colorado a law that does not impinge on a fundamental right gets 'rational basis' review. That is, if the person attacking the law as unconstitutional can't show beyond a reasonable doubt that there is no rational basis for the government to enact the law, it's constitutional. That's a very difficult burden and I doubt the number of successful constitutional challenges to such statutes exceed the number of digits of one human hand. On the other hand, if the statute impinges on a fundamental right, the law gets strict scrutiny, and then the government has to show that the law serves a compelling state interest and is narrowly drawn so that no other rational alternative can effect that compelling state interest. This is a difficult burden for the state to carry and usually laws are struck down under strict scrutiny. These two different rules of review are virtually the opposite ends of the entire spectrum of review.
So what did this Court do? The judges crafted a middle ground (based on the execrable Robertson case (dealing with the Denver assault weapon ban)), which middle ground review was called rational exercise. This is the dumb way to go. What idiot (besides the four liberal Justices on the U.S. Supreme Court) doesn't think the right to keep and bear arms in the Bill of Rights is a fundamental right?
I guess we'll find out. I wonder if the coming ruling (5-4) of the U.S. Supremes in the Chicago gun case, finding that the 2nd Amendment is indeed a fundamental right, will have any effect on our Supreme Court's decision here ( if CU-D is dumb enough to appeal this).
Labels: Right to Carry; College Campuses; Review Rules
# posted by Roger Fraley @ 8:03 PM 
