Assistant U.S. Attorney General Harmeet Dhillon and her newly hired brigade of Second Amendment attorneys at the U.S. Department of Justice (DOJ) Civil Rights Division Second Amendment Section are clearly ready to work. President Trump’s DOJ has made it unmistakably clear that the Second Amendment will be treated as a first class constitutional right rather than a second class privilege.
While the Trump White House has been pursuing a very pro-Second Amendment posture since the beginning of the latest term, the past several weeks have marked an exciting escalation in both the aggressiveness and visibility of that effort. From ATF’s announcement of 30+ new rulemakings in a historic regulatory rollback to DOJ’s challenges to local and state firearm restrictions to the White House scrutinizing policies that conflict with U.S. Supreme Court precedent on firearms, the shift from passive observation to true constitutional enforcement is to be celebrated.
Last week, DOJ made significant moves on the state of Colorado, which has seen draconian state-wide infringements on Second Amendment rights escalating in the past 15 years with the enactment of a “large capacity” magazine ban in 2013, followed by other sweeping firearm restrictions since. Before then, Colorado occupied a relatively moderate position on firearm policy that sustained a very strong hunting, outdoor, and firearm culture, with the notable outlier of Denver and its urban chic “assault weapons” ban.
That restriction goes back all the way to 1989, even before the 1994 federal assault weapon ban, when the Denver City Council adopted restrictions on certain semi-automatic firearms and large capacity magazines.
Denv., Colo., Rev. Mun. Code ch. 38, art. IV, § 38-12l(c) deems it unlawful to carry, store, keep, manufacture, sell, or otherwise possess “assault weapons” or “large capacity” magazines within the City and County of Denver. So-called assault weapons and large capacity magazines are defined as, respectively:
All semi-automatic pistols or centerfire rifles with a detachable magazine with a capacity of more than 15 rounds.
All semi-automatic shotguns with a folding stock or a magazine with a capacity of six rounds (or both).
Any firearm that’s been modified to operate as a weapon, as defined above.
Any part, or combination of parts intended to convert a firearm into an assault weapon, as defined above.
A large capacity ammunition feeding device which can hold or may be modified to hold more than fifteen (15) rounds.
Dhillon’s office first sent a warning letter explaining that the Denver assault weapon ban is unconstitutional, and the city had until May 5th to respond with “voluntary resolution,” i.e. immediate cessation of enforcement, with no similar enactments in the future. Denver Mayor Mike Johnson and City Attorney Miko Brown immediately responded with a predictably bombastic letter refusing to take action and bizarrely stating that “even if your bald, unsupported statement that ‘literally tens of millions of AR-15 style rifles’ are held by private individuals is true (and you have presented no evidence showing it is), your point is irrelevant.” That ill-informed response was expected, if not inevitable, as the DOJ lawsuit was already prepared for filing just days later.
Simply put, the DOJ filing seeks to overturn the Denver ban as a violation of the Second Amendment as it prohibits possession of commonly owned semiautomatic rifles such as the AR-15 which are overwhelmingly used for lawful purposes. While the Colorado Supreme Court and lower federal courts have allowed the ban to remain in place, those rulings are far from the final word.
U.S. Supreme Court decisions in District of Columbia v. Heller (2008) and New York State Rifle and Pistol Association v. Bruen (2022)have made unmistakably clear that firearms such as the AR-15 and similar semiautomatic rifles which are in common use for lawful purposes receive constitutional protection. Moreover, broad interest-balancing arguments and claims of criminal use by some will not justify sweeping bans for entire categories of commonly owned firearms.
While it may be true that lower courts are, in post-Bruen times, still upholding these bans by relying on pre-Bruen interest balancing tests or other increasingly contorted and implausible rationalizations, those rulings hardly guarantee constitutional correctness. Indeed, the nearly universal tendency of lower federal courts is to treat every positive Second Amendment decision from the U.S. Supreme Court as somehow limited to its facts and to ignore the normal process of applying the High Court’s reasoning to new fact patterns. While the justices do not grant as many Second Amendment petitions as might be hoped, gun control activists have a 1 to 4 losing record since 2008, and they do not appear likely to improve on that dismal success rate with the two cases pending this term.
Just days following the DOJ filing against Denver came an additional lawsuit challenging Colorado’s statewide “large capacity” magazine ban that currently prohibits magazines capable of holding more than 15 rounds. Again, the central argument made by DOJ is that magazines holding over 15 rounds are also arms “in common use for lawful purposes” and cannot be banned under a Heller-McDonald-Bruen framework.
The DOJ targeting of Denver and the state of Colorado, which have become very aggressive testing grounds for “innovative” gun control, can help position longstanding “hardware” issues in federal court post-Bruen, particularly since the 10th Circuit has no current direct or controlling precedent on these issues, as well as draw a line in the sand for other acts of defiance against the Supreme Court’s recent Second Amendment jurisprudence.
When lower courts resist the logical consequences of Heller, McDonald, and Bruen the hope is the U.S. Supreme Court will correct them. We impatiently await those relevant decisions from the U.S. Supreme Court, as well as welcome new appellate pathways to challenge these unconstitutional bans.
These latest DOJ lawsuits will serve the Second Amendment well beyond Colorado as they create critical vehicles to help restore constitutional clarity and conformity, while hopefully serving as a warning to other states contemplating aggressive, unconstitutional gun control.
The past few weeks have served as a monumental breakthrough with an administration no longer willing to passively allow states to sidestep the constitutional framework of Second Amendment rights. While the fight continues, having an ally in the DOJ could prove to be a gamechanger for the pro-rights side.
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