The Honorable John Hickenlooper
136 State Capitol
Re: Colorado
Governor Hickenlooper:
On behalf of our client, Magpul
Industries, Holland & Hart LLP
urges your veto of Colorado
House Bill 13-1224 based on legal and enforcement deficiencies set forth in
this letter.
As you know, Magpul strongly opposes HB
1224. In public testimony, as well as in a meeting with you and your staff,
Magpul communicated its position that HB 1224 will not enhance public safety,
will restrict law-abiding citizens from defending their homes and families,
will cause hundreds of jobs to leave Colorado
Beyond the public policy deliberations
related to HB 1224, there are significant legal defects and enforcement issues
surrounding HB 1224. These issues were not resolved through the legislative
process and, under the state constitution, it is the responsibility of the
Governor, “who shall take care that the laws be faithfully executed,” to
address the significant legal defects of HB 1224. (Colorado
Our legal analysis concludes that HB 1224:
1) HB 1224
restricts the sale, possession, inheritance, and transfer of all firearm
magazines rendering the bill unconstitutionally vague;
2) HB 1224 bans
the possession, sale and transfer of certain existing firearms; and
3) HB 1224 will be virtually impossible to
implement and enforce.
Given these
structural flaws, which are detailed below, Magpul respectfully asks that you
veto HB 1224.
I. HB-1224, As Written, Bans All Magazines
While it may not have been the intent of
the bill drafters, the plain meaning of HB 1224 is that it will prohibit almost
every ammunition magazine as of July 1, 2013. The bill defines restricted
magazines as any that that are “designed to be readily converted” to accept
more than fifteen rounds. The simple fact is that virtually every magazine on
the market has an open floor plate, and that design makes every magazine
readily convertible.
A. Magazine Design - Virtually every ammunition magazine that
is commercially available has a removable floor plate. This design feature is
necessary for cleaning, maintenance, and ease of manufacturing assembly. This design
also inherently creates the possibility that all magazines can be extended
through commercially available extension products or readily fabricated
extensions. As a result, nearly every magazine can be converted to exceed the
capacity limit set by HB 1224, including those for many bolt action hunting
rifles and common handguns.
B. Standard Extensions - A basic product search via the internet
demonstrates that virtually every magazine-fed firearm on the market has one or
more commercially available extensions. These extensions are offered by the
firearm manufacturer and by many aftermarket suppliers. In fact, the most
popular home defense firearms come with an option to add an OEM magazine
capacity extension, demonstrating that they are “designed to be readily
converted.” The bill’s sponsor, Rhonda Fields, conceded in an interview with
9News that the extension issue was not considered while drafting the bill.
C. Shotgun Shell Amendment - HB 1224 in its earlier form prohibited the
sale and possession of any device “capable of accepting more than 8 shotgun
shells.” The Colorado Senate acknowledged that this provision created a legal
conflict because every shotgun, by its inherent design, includes an ammunition
source tube that can be expanded through commercially available extensions. To
address this conflict, the Senate adopted an amendment on second reading that
simply prohibits shotgun shell tubes that extend beyond a specific length. HB
1224’s magazine capacity restriction contains the identical conflict, but was
not addressed by amendment.
D. Unconstitutionally Vague
- HB 1224, as written, will require
persons located in Colorado to determine whether a firearm magazine they are
about to possess, sell, or transfer “is designed to be readily converted.” This
criminal standard would require a person located in Colorado to predict the intent
of the manufacturer’s design of that magazine: if the manufacturer intended
to design the magazine to be readily converted, it would be illegal to sell, possess,
or transfer that magazine in Colorado; if, however, the manufacturer did not intend
to design the magazine to be readily converted, it would be legal to sell,
possess, or transfer that same magazine. Requiring individuals to predict a
designer’s intent to determine criminal culpability is unconstitutionally vague
under the Colorado Constitution. The Colorado Supreme Court has established
“[w]hen a statute is challenged as void for vagueness, the essential inquiry is
whether the statute describes the forbidden conduct in terms so vague that
persons of common intelligence cannot readily understand its meaning and
application.1
A person of
common intelligence cannot determine whether a magazine is designed to be
readily converted.
E.
Inconsistent Interpretation – A problem closely related to the vagueness issue is the near
certainty of inconsistent interpretations by law enforcement and those with
responsibility to enforce the law and prosecute violations. Some officials will
read the bill literally and make their own determination what magazines are
designed to be readily converted.
II. HB 1224 Bans and Requires Confiscation
of Certain Firearms
Regardless of the intent of legislative
drafters, HB 1224 makes it illegal to purchase, inherit, or even possess
existing firearms that have an internal ammunition source over 15 rounds other
than .22 caliber or lever action firearms. This includes several popular
firearm models, such as the Taurus 45 bolt action rifle which has an internal
magazine capacity of sixteen .45 caliber rounds, and the SKS line of rifles
which can have an internal ammunition source of 20 rounds. This category of
firearm would be illegal to possess as of July 1, 2013, regardless of when it
was obtained, because HB 1224 only “grandfathers” magazines over 15 rounds and
not firearms that have an internal ammunition source over 15 rounds. If HB 1224
is signed into law, individuals who possess this type of firearm after July 1,
2013 would be guilty of a criminal offense.
A. HB 1224
Bans Sale Colorado
B. HB 1224 Bans Inheritance of Certain
Firearms. HB 1224 would
ban the transfer of all firearms (except .22’s and lever actions) that have an
internal ammunition source over 15 rounds. As a result, individuals could not
sell or trade these firearms after July 1, 2013. Individuals will not even be
able to transfer these weapons to other family members as a gift or
inheritance. Unlike other state laws, HB 1224 does not include an inheritance
exemption. This means that a Colorado
C. HB 1224
Makes Existing Firearms Illegal to Possess. HB 1224 bans all fixed ammunition sources over 15 rounds.
The bill exempts .22 and lever actions that have fixed ammunition sources over
15 rounds. The bill also grandfathers existing "magazines" over 15
rounds. However, HB 1224 does not grandfather firearms that have an internal
ammunition source over 15 rounds that are not .22's or lever action. These
firearms would be illegal to posses in the State of Colorado
III. Implementation and Enforcement
Virtually Impossible
In addition to the enforcement and
interpretation issue discussed above, there are other serious flaws that will
make HB 1224 virtually impossible to implement and enforce.
A. Date Stamp - The vast majority of firearm magazines do
not contain a date stamp. Manufacturers outside of Colorado
1. Grandfathering - HB 1224 “grandfathers” prohibited
magazines located in Colorado Colorado
“In order to have
an impact, large capacity magazine regulation needs to sharply curtail their
availability to include restrictions on
importation, manufacture, sale, and possession. An exemption for previously
owned magazines would nearly eliminate any impact. The program would need to be
coupled with an extensive buyback of existing large capacity magazines. With an
exemption the impact of the restrictions would only be felt when the magazines
degrade or when they no longer are compatible with guns in circulation. This
would take decades to realize.”
B. Law Enforcement - HB 1224 places impossible enforcement
decisions on Colorado Colorado
Conclusion
Based on the
facts and analysis set forth above, HB 1224 bans a broader class of firearms
and firearm accessories than the bill sponsors intended. HB 1224, as written,
would be one of the most expansive gun bills implemented in the United States
Sincerely,
Jonathan M. Anderson
(Attorney at
Holland & Hart for Magpul Industries, Inc.)
(The Colorado Ammunition Magazine Ban Bill, as formatted for the Governor's Signature)
http://afirearmrightschronicle.blogspot.com/2013/03/colorado-ammunition-magazine-ban-statute.html
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