Governor Hickenlooper recognized that HB 1224, the magazine ban, is poorly drafted making it confusing because of its vagueness in several areas. He said he acknowledges there are concerns about the vagueness of some parts of it. Hickenlooper also said he has directed the Department of Public Safety to consult with the Attorney General about how to interpret the law and then issue guidance on how to enforce it to police and sheriffs throughout the state.
In other words, Colorado residents cannot simply look to the statute to find out what is permitted and what is prohibited. Nancy Pelosi told us we had to pass Obamacare so we could find out what is in it. HB 1224 takes that one step farther, passing it won’t be enough for us to find out what is in it. HB 1224 is now the law in Colorado. But the people of Colorado will have to wait for the attorney general and law enforcement to tell us what they think before we can find out what is in HB 1224. We cannot rely on our own reading comprehension to know what is lawful and what is unlawful. We must rely on the future discretion of law enforcement, the Department of Public Safety and the Attorney General.
There is one word to describe this sort of government: Fascism. German Jews were bound by many laws passed by the Third Reich. Most of them were unknown until an SS officer raised a pistol to one’s head to inform him he had violated some theretofore unknown law. Breaking the law was the only way to find out what was permitted and what was prohibited. So, according to Hickenlooper, violating HB 1224 will be the only way to find out what is in it. Then it will be too late to avoid the punishment for breaking it. While violating HB 1224 is not likely to get a pistol pointed at one’s head (although that’s certainly possible), there will be unavoidable consequences none the less.
Colorado sheriffs are right to challenge the Democrats’ gun laws in Federal court. With regard to HB 1224, the magazine ban, a signing statement and a future Attorney General’s opinion cannot cure unconstitutional vagueness in the statute. Beyond that all laws must have a rational connection to some legitimate goal that government wants to achieve. Here the goal is a reduction in mass killings with guns. Finding the rational connection between this law and that goal is impossible. Rational means there must be a worthwhile trade off between the restriction and a benefit gained. Here the law imposes a restriction on law-abiding gun owners with no proven or even likely public benefit to be gained. Hickenlooper himself refers only to the “possibility” of some life somewhere being saved. That is too thin a reed to stand on.
Lowering the speed limit to 5 mph on the interstate is more rational than this law. A five mph speed limit would undoubtedly save many lives. But it won’t be done because it would wreak havoc and even saving many lives doesn’t make it a worthwhile trade off.
Finally, rational basis is probably not the appropriate test of this law. It infringes the Second Amendment. That can be done only when the law advances some compelling government interest and is narrowly crafted to achieve that goal and it cannot be achieved by other less restrictive means. In other words, strict scrutiny is likely to be the test that this law must pass.
This reminds me of what I disliked most about George W. Bush. When the McCain/Feingold campaign finance law reached Bush’s desk in 2003 he said he believed it was unconstitutional. Then he signed it. Combining his statement with his signature completed the act of violating his Presidential oath to protect and defend the United States Constitution. You cannot express a belief that a law in unconstitutional in one breath and afix your signature to it in the next breath, the very act that transforms a mere piece of paper into the law of the land, if you take your oath seriously.
In acknowledging the vagueness of HB 1224 and then signing it Hickenlooper isn’t being quite so brazen as Bush was with respect to McCain/Feingold. But it’s close.