Denver-based federal appeals court: no constitutional protection for concealed carry of guns

A federal appeals court based in Denver ruled Friday that the Second Amendment to the U.S. Constitution does not guarantee a person the right to carry a concealed firearm.

The court, in an opinion written by Judge Carlos Lucero, explained that longstanding historical precedent and language in the U.S. Supreme Court's 2008 decision in a case called District of Columbia v. Heller compelled its holding.

The decision by the U.S. Court of Appeals for the Tenth Circuit disagreed with a December 2012 opinion by the federal appeals court based in Chicago.

In that case, the U.S. Court of Appeals for the Seventh Circuit provided a semantic explanation that

"the right to 'bear' as distinct from the right to 'keep' arms is unlikely to refer to the home. To speak of “bearing” arms  within  one’s home  would  at all times have  been an awkward usage. A right to  bear arms thus implies a right to carry a loaded gun outside the home." 

The opinion in the case noted that, were a state legislature to sufficiently document the public benefits expected to follow from a ban on the concealed carrying of firearms, such a ban might be constitutional.

The Moore v. Madigan case is still before the Seventh Circuit. Illinois attorney general Lisa Madigan has asked the court to rehear it with all of its 11 judges, instead of just the three who decided the dispute last year, sitting as a panel.

Two other federal circuit courts of appeals - the Second Circuit, based in New York, and the Fourth Circuit, based in Richmond, have also ruled that the Second Amendment provides no right to carry a hidden firearm outside the home.

The discord on the issue among the four federal circuits could persuade the U.S. Supreme Court to take up the question at issue in both Peterson v. Martinez, the Tenth Circuit case, and Moore v. Madigan, the Seventh Circuit case, if asked to grant certiorari.

One question the Supreme Court would have to address in such a case the question how to handle clear, but not binding, language in a decades-old case that portended Friday's Tenth Circuit decision. In 1897 the Court opined that any right to "keep and bear arms" does not extend to possession of hidden guns in public.

Even in the Court's 2008 decision that confirmed a right to keep a handgun in a private home the justices in the majority were careful to point out that "the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues."

It went on to explain that its opinion in District of Columbia v. Heller should not be understood as undermining such "longstanding prohibitions."

The federal appellate judges who issued Friday's opinion emphasized that, in that respect, Heller is consistent with longstanding precedent. They cited a 2009 law review article by noted libertarian law professor Eugene Volokh, which perfunctorily noted that "by the end of the 19th century the constitutionality of such [concealed carry] bans had become pretty broadly accepted."

The court also pointed to a 2011 academic study by gun advocate David T. Hardy, which concluded that state appeals courts had rejected, as early as the 1820s, any inconsistency between the constitutional firearms rights provisions and concealed carry laws.

It is possible that other federal courts could limit their reading of Friday's decision in Peterson v. Martinez to statutory prohibitions on granting concealed carry permits to non-residents of a state.

The case arose when a Washington resident sued to enjoin Colorado's concealed carry law because he was denied such a permit on the basis of the state's statutory provision forbidding an out-of-state resident from receiving one.

Courts have, in the vast majority of constitutional challenges to the gamut of state firearms laws since the Heller case was decided, upheld those statutes.

NYT: Many state legislatures considering mandatory liability insurance for gun owners

The New York Times has a story this morning that explores a new trend in firearms legislation: bills requiring gun owners to purchase liability insurance policies.

The article indicates that at least six states are debating such a policy approach.

One of them - New York - is considering a proposal to mandate a minimum of $1 million in liability coverage resulting from "negligent or willful" acts involving the use of a firearm by the insured owner.

The measure would require a prospective gun owner to acquire the insurance before obtaining a gun and, in the case of current gun owners, set a deadline of thirty days after the law takes effect.

A similar proposal in Maryland would set $250,000 as the minimum insurance coverage.

Other states in which legislators are considering whether to require gun owner to carry liability insurance on their firearms are California, Connecticut, Massachusetts, and Pennsylvania.

The bills introduced around the nation this year are the first since Illinois legislators rejected a similar idea in 2009.

According to Robert Hartwig, an economist and president of the Insurance Information Institute, a major problem with the idea is that, in several of the states in which the bills have been introduced, the proponents do not distinguish between an insurance mandate applicable to accidental damage resulting from use of a gun and illegal use of a firearm.

Such an all-inclusive coverage mandate would be contrary to long-established industry practice.

"They have not historically, they do not today, and they will not in the future," Hartwig said, referring to insurance companies. "This is not unique to gun coverage. I think most people believe that’s the way things would be."

Moreover, Hartwig argued, firearms liability insurance is not needed to provide a disincentive to misuse of a weapon.

"The gun owners have a pretty strong disincentive right now," he said. "Obviously, they face criminal charges and prison time, not to mention lawsuits, as a result of [illegal] activities. I’m not sure the payment of an insurance premium is going to alter the incentive here. The disincentive to misuse the weapon already exists through the penal code."

Hartwig noted that accidental discharges of a firearm that cause damage to person or property are generally covered by homeowners or renters insurance policies. The National Rifle Association currently makes available to its members a supplemental insurance policy that allows for additional compensation to claimants in those circumstances.

The idea of requiring gun owners to carry liability insurance applicable to their firearms was apparently first broached in a 1987 law review article.

As of this writing no Colorado legislator has introduced a bill in the 2013 legislative session that would impose a mandatory insurance requirement on gun owners.

CU regents put off taking a stand on college concealed weapons bill

The University of Colorado Board of Regents will continue, at least for awhile, its silence on the question whether the General Assembly should enact a measure to ban concealed weapons on the state's college campuses.

The Boulder Daily Camera reported Wednesday that the seven-member panel rejected a Republican-led effort to get it on record.

HB 13-1226, which would overturn a 2012 state supreme court decision that applied the state's concealed carry law to college campuses, cleared the House of Representatives Monday.

The bill now heads to the Senate, along with three other firearms regulation measures.

Rep. Claire Levy, D-Boulder, is the House sponsor, while Democrat Rollie Heath of Boulder will carry the bill in the Senate.

Democrats' package of four gun control bills to be debated on House floor Friday

The set of four big firearms bills introduced by House Democrats will be debated in that chamber on Friday.

The package includes measures that would limit the size of bullet magazines, require all purchasers of firearms to obtain a background check, force gun buyers to pay for the required background check, and make clear that the state's concealed carry law does not apply on the campuses of public colleges and universities.

If any or all of the bills are approved by the House on Friday, they will be calendared for a second vote in the chamber a few days later. The bills move to the Senate only if they are approved on both "second reading" and "third reading" in the House.

Bill advancing fee for gun background check advances

The House Finance Committee has approved a bill that would require firearms purchasers to pay for the background check required by state law.

HB 13-1228 was cleared Wednesday afternoon on a 7-6, party-line vote.

The measure would force individuals subject to the background check mandate to pay a $10-12 fee associated with it.

Under current law the state's taxpayers pay for the background checks.

If enacted into law, the proposal would allow the state government to save about $1.5 million per year. That's according to an analysis prepared by the Colorado Legislative Council.

The measure is not without precedent. For several years prior to 1999 state law required those subject to the firearms background check to pay for it.

HB 13-1228 is sponsored by Rep. Lois Court, D-Denver.

House committee considers ban on firearms on college campuses

A House committee will examine Wednesday a bill that would ban firearms from all buildings and athletic facilities on the state's college campuses.

HB 13-1226 would overturn a 2012 state supreme court decision that applied Colorado's concealed carry law to higher education institutions.

The state's flagship college, the University of Colorado at Boulder, has wrestled with the requirement to accommodate concealed firearms.

"Certainly, given that we had a weapons ban in place for forty-plus years, there’s been thinking that banning weapons was a good thing," Ken McConnellogue, a vice president at CU, said.

McConnellogue said that CU forbids weapons in most residence halls and at Folsom Field and that administrators deal with arguments that they should be banned in other circumstances, too.

"The nuance of that, both with the residence hall and the football games, those are essentially contracts," he explained. "We have some discretion over that. There are many more. People say, you are banning them at football games, you can ban them at commencement. You can ban them at guest lectures. At the end of the day, the university is obliged to follow the law and we’re going to do that. The challenge for us is to determine how the law works within the particular environment."

Colorado State University applies limits similar to those in place on at CU's Boulder campus, according to spokesperson Mike Hooker.

"The places on campus where you’re not allowed to carry are the residence halls and our [in] basketball arena [or] during sporting events," he explained.

CSU opened the doors to possession of guns on its campus about nine years before last year's decision in Regents of the University of Colorado v. Students for Concealed Carry on Campus.

The bill's sponsor, Rep. Claire Levy, D-Boulder, believes that her proposal is essential if the state's universities are to effectively help students who may be suffering from emotional disturbance or mental illness.

"In the years since the Virginia Tech shooting Colorado and other states have responded with increased attention to the mental health needs of their college students," she said. "State colleges have created threat assessment teams so [that] students who are struggling with emotional problems can be identified and provided the help and support they need. But we haven't addressed one of the biggest threats to campus safety, which is the presence of guns on campuses."

The veteran legislator also explained that her bill is an effort to enhance student safety.

"The bill also recognizes that college students are at heightened risk of suicide and impulsive conduct, which the presence of guns will only exacerbate," Levy said.

At the CU-Boulder campus, suicide by gun has been a rare occurrence.

"Within the past seven years we know of two suicides where a firearm was used," Ryan Huff, a spokesperson for the campus police, said. "In both cases they were not students."

In general, young adults are at an elevated risk of suicide. According to a 2004 report from the Suicide Prevention Resource Center, suicide is the second-leading cause of death among college-age adults.

The CU experience indicates, however, that it is less likely to occur in the absence of firearms.

"Students are safer if there are no guns," Dr. Allan J. Schwartz, a professor of psychiatry and staff psychologist at the University of Rochester and the author of several studies that examine suicide risks among college-age young adults, said. "The evidence for that is pretty strong."

A representative of the American Foundation for Suicide Prevention confirmed that assessment.

“We know that reducing a suicidal person’s easy access to lethal means, including firearms, can be an effective strategy for preventing suicide," John Madigan, AFSP's senior director of public policy said. "This is critical because it gives individuals and those who care for them something they desperately need – time: time to change their minds, time for them to get help or time for someone to intervene.”

The number of college students who attempt suicide, and succeed in taking their life, is thought to be about half of the equivalent rate among those who are not enrolled in higher education.

Schwartz explained that, across the nation as a whole, young adults who study on a college campus are not likely to have access to a gun.

"When you look at the proportion of suicides that are completed using a firearm, by students, as compared to the proportion of suicides that are completed using a firearm in the general population, matched by age and gender, for students it tends to be on the order of one-third as common," he said. "For the general population, firearms account for as many suicides as all other methods combined. For students, firearms remain one of the most likely methods, almost equal to suicide by hanging."

“Why is that the case?," Schwartz rhetorically asked. "It’s just a huge difference in the accessibility of firearms."

Most students who use a gun to take their own lives gain access to the weapon by traveling off-campus to their parents' home.

"Sometimes it’s a few tens of miles, sometimes it’s hundreds of miles," Schwartz said. "But it’s a frighteningly relevant story."

The likelihood that more firearms will be used in suicide attempts is not the only factor that raises the risks to student safety on college campuses that are required to allow guns.

According to one 2007 study, a person who attempts to take their own life with a firearm will succeed about 90 percent of the time, which is a rate that exceeds other methods that are commonly deployed in suicide attempts.

To Schwartz, these statistics demand that legislators treat the prevention of guns on college campuses as a public health imperative.

"To allow firearms on campus would be catastrophic," he argued. "It’s not just unwise public policy. You’d double the suicide rate."

Proponents of extending the concealed carry law to college campuses have argued that students are likely to be safer if they have the option of being armed.

"Allowing licensed concealed carry would give potential attackers pause and ultimately give innocent victims a fighting chance,” Students for Concealed Carry spokesperson David Burnett said in a statement.

One problem with this argument is that students face little risk of homicide on college campuses.

Schwartz explained that homicide is a rare event, statistically speaking, on college campuses everywhere in America.

"There are concerns that folks may have about protecting students from harm by others," Schwartz said. "The thinking goes, if they had a firearm, we wouldn’t have these slaughters like what took place at Virginia Tech. We’re talking about 20 homicides among about 10 million students every year. It's a horrific headline when it happens, but it virtually never happens. Can you imagine any city in the United States with 10 million people in which there are just 20 homicides each year? That’s what it’s like on college campuses. There’s virtually no homicide."

The situation on Colorado's public college campuses bears out Schwartz' assertion. There were no homicides on the CU-Boulder campus between 2009-2011, the most recent period for which data is available.

"The last homicide we had here was in 1997, involving two transients," Huff said. "A firearm was not used there.”

CSU experienced the same paucity of crimes involving a loss of life during the same three-year period.

A 2010 report of crime statistics from the University of Colorado at Denver, which is the most recent data available from that institution, revealed that no homicides occurred on the urban campus in Denver during the period 2007-2009.

Rapes and sexual assaults are occasional risks on college campuses in the state. Each of the major institutions on the Front Range report that several occurred during each of the years between 2009-2011.

Nevertheless, crimes involving the use of a gun appear to be rare on college campuses in Colorado.

"The frequency of crimes where guns are used is quite low on our campus,” Huff said.

Twenty-five states ban firearms on campus, while 23 others allow universities and colleges to set their own rules touching on gun possession. Two states - Colorado and Utah - require state institutions of higher learning to permit the concealed carry of firearms on campus.

Michael Carrigan, the chairperson of the CU Board of Regents, did not respond to a request for a comment about the regents' position on HB 13-1226.

Sen. Rollie Heath, D-Boulder, is carrying the bill in the Senate.

The fate of the legislation, should it clear the General Assembly and head to Gov. John Hickenlooper for signature into law, is not clear.

"We are monitoring this bill and have not taken an official position," Eric Brown, a spokesperson for Hickenlooper, said.

UPDATE (2:10 pm MST):

The House Education Committee approved HB 13-1226 on a 7-6 vote.

NOTE: A slightly different version of this article appears at Examiner.com.

"Arm the Teachers" bill dies in committee

A bill that would have given school boards the authority to permit administrators and teachers to carry concealed weapons on the state's public school campuses was defeated in a Senate committee Monday.

SB 9 lost on a party-line, 3-2 vote.

Sen. John P. Morse, D-Colorado Springs, was quoted by the Colorado Springs Gazette as saying that the bill would not only be of no help in reducing violence, but contribute to the problem.

The sponsor of the measure, Republican Ted Harvey of Highlands Ranch, had said he believed the measure is needed so that those who work in schools can protect children and themselves.

The defeat of the measure does not mean that schoolkids, teachers, support employees, and administrators have no protection against a firearm-toting intruder intent on doing harm. Current law permits armed police officers to patrol public school buildings in Colorado.

The presence of an armed guard or other people with guns in a building attacked by a shooter is not a guarantee that no one would be hurt. Some advocates of eliminating laws that set up schools as gun-free areas argue that the presence of an armed security guard at Columbine High School during a mass shooting incident in April 1999 prevented the deaths of some individuals. However, thirteen people, including 12 children, died in that massacre despite his presence.

SB 9 was co-sponsored in the Senate by Scott Renfroe, R-Greeley, and in the House of Representatives by Rep. Lori Saine, R-Dacono.