By David B. Kopel, Research Director of the Independence Institute
Issue Paper No. 25-93. More by Kopel on youth and guns.
Last May, City Councilperson Cathy Reynolds announced that she would introduce legislation to make parents responsible for gun misuse committed by their children. But two new "gun control" ordinances introduced by Councilwoman Reynolds do nothing of the sort.
Instead, the bills make it illegal for parents (or anybody else) to allow minors to touch a weapon.
The definition of "weapon" includes not only firearms, but also sling shots, BE guns, paint pellet guns, dart guns -- and shoes! Criminal law as conceived by Mr. Wilson from Dennis the Menace.
Activities prohibited with these "weapons" include hunting, target shooting, plinking, cleaning the weapon, or transporting the weapon through the city of Denver. Even gun safety training would be unlawful.
The ordinances attempt to avoid conflict with the Constitutional right to bear arms for self-defense, by allowing a minor to shoot a criminal who is actually attacking her. But the right to self-defense is nearly meaningless if the minor is forbidden to learn how to shoot. Just as the right to a free press includes the right to learn how to read, the right to keep and bear arms includes the right to learn how to shoot.
By requiring that firearms, but not other equally dangerous items, be locked up, the "gun lock" ordinance amounts to unconstitutional discrimination, like the Louisiana law which taxed only newspapers.
Everyone wants to crack down on firearms violence perpetrated by gang members, and everyone wants to do what is possible to reduce firearms accidents involving children. Two bills recently introduced before the Denver City Council purport to address these problems, but fire wide of the mark. The bills "crack down" on innocent persons with incredible severity -- even making it illegal for a 16-year-old to shoot a BB gun with his father -- or even to touch his father’s BB gun. At the same time, the proposed ordinances add nothing of significance to the arsenal of laws already usable against gang members.
This Issue Paper first analyzes the scope of "weapons" covered under the proposed ordinances, and details how the ordinance covers not only firearms, but also "weapons" which are not exactly the "weapon of choice" of gang members—BB guns and slingshots. Antique pistols and black powder firearms.
Both bills include within their scope every "air gun," "gas-operated gun," and "spring gun." As a result, minors are forbidden to possess BB guns. [BB guns may be powered by compressed air, carbon dioxide gas, or a spring.] There is no plausible evidence that BB guns are a serious crime or accident problem. It is silly to claim to crack down on gangs by making it illegal for a father and son to shoot a Red Ryder BB gun in the backyard.
Do the proposed BB gun prohibitions add anything to the arsenal of public safety tools? No. Denver law already forbids furnishing BB guns to minors, except that a minor may shoot a BB gun on family property, so long as there is no risk of a BB exiting the property.(1) It is difficult to understand how jailing parents who let their children shoot a BB gun in the backyard will prevent crime.
Illegal "Weapons" under Proposed
Ordinances
Both bills include within their scope every "air gun," "gas operated gun," and "spring gun." As a result, minors are forbidden to possess BB guns. [BB guns may be powered by compressed air, carbon dioxide gas, or a spring.] There is no plausible evidence that BB guns are a serious crime or accident problem. It is silly to claim to crack down on gangs by making it illegal for a father and son to shoot a Daisy Red Ryder BB gun in the backyard.
Do the proposed BB gun prohibitions add anything to the arsenal of public safety tools? No. Denver law already forbids furnishing BB guns to minors, except that a minor may shoot a BB gun on family property as long as there is no risk of a BB exiting the property.(1) It is difficult to understand how jailing parents who let their children shoot a Red Ryders in the backyard will prevent crime.
The "harms to minors" ordinance includes a prohibition on minors being given or allowed to possess "sling shots." Is Mr. Wilson from Dennis the Menace now sponsoring criminal ordinances? Are gang members perpetrating drive-by slingings? Are parents who give their children sling shots to play with in the back yard really in the same category as parents who give their children handguns with which to perpetrate robberies? The words "sling shot" have no legitimate place in a measure purporting to deal with gun crime and gun accidents.
Unlike virtually every gun control law ever enacted, the ordinance makes no exception for guns produced before 1898 and replicas of such guns. Thus, it would become illegal for a person under 18 merely to possess -- without even owning suitable ammunition -- an antique family pistol made in 1842. Likewise, minors would be forbidden to work with their parents on assembly kits to make a replica of an old-fashioned black powder rifle. Are there reports of an epidemic of children dying in accidents involving muskets? Are one-shot flintlock rifles joining slingshots as the weapon of choice in drive-by shootings? Existing Denver gun control law already defines "antique firearm, "(2) so an amendment stating that the ordinances do not apply to any "antique firearm" would be simple.
In the past decade, the new sport of "paintball" has become quite popular. Participants play a game of "capture the flag" in which players remove members of the opposing team by shooting them with a small ball of (washable) paint. Paint guns are powered by air or by carbon dioxide, and are therefore within the scope of the terms "air gun" or "gas operated gun." Paint guns are defined as "firearms" under the gun-lock ordinance, even though paint guns do not use gunpowder and are therefore not propelled by any kind of "fire." The "wrongs to minors" ordinance defines paint guns as "weapons," despite the complete lack of evidence that paint guns are ever used as weapons. Both ordinances would make it a crime even for a parent to lend his or her paint gun to a 17-year-old who was driving to play paintball in Cripple Creek (where a nationally-known paintball facility is located), or at the indoor paintball "Adventure Game" facility in Aurora.
Some water guns, such as the "Super Soaker" are powered by compressed air, and accordingly fall under the definition of "air gun." Unless drive-by squirtings are a serious crime problem, it makes little sense to make it illegal for minors to possess water guns. Nor does it make sense to include toy guns which fire rubber darts or plastic balls within the scope of "weapons" controlled.
[Note: This provision was removed from the ordinance before final passage.] After an exhaustive listing of weapons both common ("pistol, revolver") and obscure ("nunchaku" "gravity knife"), the ordinance then makes it illegal for a parent to knowingly allow a minor to possess, under any circumstances (except with a permit or in immediate self-defense) any "other dangerous or deadly weapon." According to state law, a "deadly weapon" can include even a bottle of whiskey(3) or a shoe.(4) In Colorado statewide law, there is no law against owning bottles of whiskey or shoes, because the Colorado laws only criminalize use of a deadly weapon in a criminal context (e.g., "assault with a deadly weapon"). The proposed ordinance, in contrast, criminalizes mere possession of a "deadly weapon."
Similarly, a baseball bat could be a "dangerous weapon," if swung at someone’s skull. If swung at a baseball, the bat would not normally be considered a "dangerous weapon." American criminal law leaves baseball players alone and also punishes people who commit assault with baseball bats, because American law defines terms such as "dangerous weapon" in the context of criminal misuse. Like the baseball bat, the machete for backyard weeds, the axe for spontaneous elms, the spear gun for scuba diving class, and the bow and arrow for target practice all could be used for legitimate purposes, or could be used as criminal weapons. By making simple possession a crime -- regardless of criminal context -- the ordinance unintentionally turns into criminals every parent who gives a child a baseball bat, automobile, rolling pin, or anything else an overzealous prosecutor might consider a "dangerous or deadly weapon."
Obviously the City Attorney’s office has better things to do with its time than prosecute baseball bat owners. But the hope that an enforcement agent will use good judgment in enforcing a vague and overbroad law does not render the law Constitutional. As the United States Supreme Court wrote, "It would certainly be dangerous if the legislature could set a net wide enough to trap all possible offenders, and leave it to the courts to step inside and say who could rightfully be detained, and who should be set at large. "(5) Or as the Colorado Supreme Court put it: "[S]tandardless delegation of discretion in enforcement impinges on basic notions of fairness at the root of the void-for-vagueness doctrine. "(6)
The ordinances would be improved if the words "air gun," "gas-operated gun," and "or other dangerous or deadly weapon" were removed.
Besides defining the scope of covered "weapons" extremely broadly, both proposed ordinances make it unlawful for a parent to allow a minor to possess a gun under almost any circumstances. The ordinances offer a pair of nearly meaningless affirmative defenses for minors who are granted permits by the Police Chief (who currently does not allow adults even to apply for permits) or who are under actual criminal attack (more on the self-defense issue below). But clearly excluded from the scope of lawful possession (including temporary possession) of firearms, BB guns, and slingshots are the following activities:
Target shooting at a range
Taking a gun to a range for target shooting
Plinking at tin cans in a safe area
Taking the gun to another county for plinking
Transporting a gun to the Olympic Training Center in Colorado Springs
Practicing marksmanship with a device inserted in the gun that shoots an infrared laser, rather than a bullet
Cleaning a gun
Touching a gun during a gun safety education class.
Helping a parent perform gunsmithing
Taking a gun to another county for hunting.
Putting away a gun that someone else had accidentally left lying around near small children.
Participating in ROTC training, including the training conducted in the Denver Public Schools. (The training involves single-shot .22 rifles.)
The prohibition could not be more comprehensive. The "wrongs to minors" ordinance forbids "any person" to "provide" a "weapon" to a minor, and requires parents to remove any "weapon" that a minor possesses. Likewise, the "gun lock" ordinance creates a crime any time a person reasonably knew that a minor could "gain possession" of a gun, and the minor does "obtain possession."
Forbidden Activities under the Ordinances
Significantly, the ordinances are not limited to Denver residents. If a father and son
fly into Denver International Airport to go hunting in Pitkin County, and the father lets
the son place the unloaded hunting rifle in the trunk of the rental car, the father has
committed a crime.
The Parents of these Young People
Would be Criminals if They Lived in Denver
In regard to hunting, the ordinances are directly preempted by statewide law. Colorado law authorizes persons aged 14-17 to hunt big game when accompanied by an adult, and allows bird hunting and small game hunting by a person of any age who has passed a hunter safety class.(7) Further, persons of any age may shoot certain nuisance animals on their property if the animals are damaging property.(8) (In a Denver context, the latter activity would involve shooting destructive squirrels with an air gun.)
Hunting is quite plainly a matter of statewide concern, in part because hunters’ license fees pay for preservation of game and non-game wildlife, and in part because the availability of hunting to all residents of Colorado who can pass the safety qualification makes Colorado a more attractive place for persons to live. Nor does Denver have any legitimate interest in preventing hunting; licensed hunters on their way to Routt County are hardly a threat to public safety. Because the ordinance forbids what the state legislature has specifically authorized, the ordinance is clearly preempted by state law.
Regarding the other activities which are forbidden, it is doubtful that the government could fulfill its burden of demonstrating that any part of the sweeping prohibition "has some rational basis in fact and is reasonably related to a legitimate government interest. "(9) And, as will be detailed in the next section, the sweeping prohibitions also interfere with the Constitutional right to defend home, person and property.
Part of the problem about banning lawful activities which promote safety training could be cured by insertion of the following language:
Nothing in this section shall prevent any person from using a firearm or other weapon in the course of a bona fide hunting trip; in the sporting use of such weapons, including shooting matches or other target shooting, or trap or skeet shooting; in receiving instruction in the safe use of such weapons; in cleaning or caring for such weapons; or for transportation to or from any of the aforesaid activities, provided that all weapons being so transported shall be unloaded when transported to or from such place of use.
The ordinances recognize that forbidding minors to use a firearm for self-defense would be unconstitutional. After all, Colorado's Constitutional right to keep and bear arms refers to "The right of no person..." rather than to "The right of no person over age 21..." Accordingly, the "wrongs to minors" ordinance creates an affirmative defense for situations when the minor possesses the firearm, BB gun, sling shot, paint gun, musket, or other "weapon" "in the course of a lawful act of self-defense or defense of his or her home or property."
Similarly, the "gun-lock" ordinance creates an exception for situations when "The minor obtains the firearm in a lawful act of self-defense, or defense of the minor's home or property."
By recognizing the right to self-defense, the proposed ordinances are a considerable improvement over the "assault weapon" ordinance, which outlaws firearms made for "antipersonnel [sic] use" and forbids use of a registered "assault weapon" in self-defense.(10)
But having genuflected in the direction of defensive firearms use, the proposed new ordinances place illegal or unconstitutional restrictions
on such use.
First of all, Colorado’s general law regarding use of force or of deadly law explicitly authorizes use of force in defense of other persons.(11) Similarly, the "make-my-day" law authorizes use of deadly force against intruders in a home when the intruder is committing or may commit a crime, and "when the occupant reasonably believes that [the intruder] might use any physical force, no matter how slight, against any occupant. (emphasis added.)(12) By limiting use of firearms only to self-defense, the proposed ordinance conflicts with state law, and is therefore illegal.
More significantly, while the ordinances allow gun possession "in the course of a lawful act of self-defense," they make it impossible for a minor to learn how to engage in self-defense. If a minor grew up in the City of Denver and obeyed the ordinances, she would never touch a gun. Then, perhaps one day when she was 17 years old and a rapist was breaking into her home, she would have the right to get her mother’s handgun and shoot the rapist. But having never been allowed to touch a gun, how could she be expected to use it successfully in a moment of peril? True, she might scare the rapist just by displaying the gun, or she might get off a lucky shot. But in practical terms, the right to bear arms for self-defense is decimated unless a person can train to use a firearm for protection. A person's right to practice self-defense should not depend on whether criminal has made a verbal threat to attack immediately or at a more distant point in time, or when the person possesses the gun for protection against attack in general. By allowing firearms possession only during an actual act of self-defense, the ordinances certainly "question" the Constitutional right to arms and right to self-defense.
The Constitutional defect could be cured by replacing the existing language with the following:
This section does not apply to any possession or use of firearms for lawful defense of home, person, or property.
The reference to "lawful defense" allows enforcement of the ordinance against persons, such as gang members, who possess firearms for unlawful defensive purposes, such as guarding a crack house.
The new ordinances crack down hard on legitimate gun users who participate in target competition, hunting, self-defense training and other lawful activities. Is this crackdown a necessary price for adding new tools to the criminal justice system? Clearly not. Corrective amendments would leave the substance of the proposed ordinances intact, while offering at least some protection to the rights of innocent persons. But with or without amendments, the two ordinances add almost nothing to the law enforcement arsenal. Existing law already covers what the ordinances purport to accomplish.
Can law enforcement officers currently take into custody a juvenile who walks down the street carrying a weapon? Absolutely. Current Colorado law forbids carrying a concealed firearm (loaded or not) on public property without a permit. (15) Current Denver law forbids carrying a concealed or unconcealed firearm without a permit.(16) [The current Denver police chief does not even make permit applications available to anyone except ex-police and a small group of political influentials. In violation of the Denver concealed weapons ordinance, the chief has not promulgated regulations regarding concealed weapons permits, and does not investigate applicants as the City Council has required. (17)]
Similarly, existing federal and state laws criminalize simple possession of firearms in connection with a crime. Thus, a 17-year-old gang member who, for example, possesses a gun with which to guard a crack house is already guilty of serious state and federal crimes. The proposed ordinance does not add anything to law enforcement tools.
What about provisions requiring parents to remove firearms/sling shots/water pistols from the possession of children, or turn the children into the police? First of all, existing criminal laws already cover persons who engage in criminal conspiracy or who acts as accessories to crimes.(18) Accordingly, there are ample tools to prosecute parents who give their children weapons for criminal purposes.
In addition, the Denver Code already requires parents (and anybody else) who are aware of illegal activity by anyone to report the person to the police. Section 38-39 of the Denver Code states:
it shall be the duty of all persons who witness or have reason to believe that a provision of this Code is being or has been violated promptly to report the same to a police officer...
Since the Denver Code already requires everyone to inform on everyone else, adding a provision specifically requiring parents to inform on their children does provide give the police any additional tools.
In sum, Bill 427 amounts to little more than the City Council stamping its feet. The bill criminalizes what is already criminal, as if restating the criminal law in revised language would somehow increase its force. The same effect could be achieved by printing criminal code provisions in boldface type. Adding nothing to the law enforcement arsenal, Bill 427’s main effect is to criminalize a vast amount of innocent activity, such as shooting BR guns, learning how to handle a firearm safely, or playing with a water pistol.
Is it legal in Denver to leave a loaded firearm within easy reach of a child who might misuse it? Absolutely not. "Reckless endangerment" is already a crime under Colorado law.(19) And Denver’s Code already makes it a crime to knowingly, intentionally, or negligently cause the life of a minor to be endangered, or cause the physical well-being of a minor to be endangered.(20)
Accordingly, there is already legal authority to prosecute a person who leaves a loaded revolver near a toddler, just as there is legal authority to prosecute a person who leaves poison near a toddler.
Councilperson Reynolds, the sponsor of the gun-lock bill states "You have a responsibility, for example, if you have poison, for storing it safely... .1 don’t see guns a whole lot differently."(21) Councilperson Reynolds is correct; owners of guns and poison should store the items safely. Current law requires safe storage, by criminalizing negligent storage that endangers a minor.
What constitutes negligence depends on the facts of the particular situation. Putting rat poison within easy reach of a playpen constitutes negligence. Giving a 16-year-old a box of rat poison and telling him to put it near the rat-hole in the basement is not negligent.
The proposed gun lock bill makes no distinctions based on the facts of the situation. The bill treats the placing of a loaded gun near a playpen the same as giving an unloaded gun to a 15-year-old while instructing her about firearms safety.
Parents who teach gun safety to their children are criminals in Denver
Notably, Denver has enacted an ordinance dealing with toxic inhalants (such as certain cleaning fluids, hair spray, glue, and paint), which are estimated to be abused by about 10% of 8th graders, and which can cause permanent brain damage or death.(22) The ordinance forbids sale of toxic inhalants to minors,(23) just as sales of firearms to minors have been illegal since 1968.(24) The law also forbids misuse of toxic inhalants, just as severe laws already forbid firearms misuse.(25) But the Denver toxic inhalant law does not require that all toxic inhalants always be locked up -- even though toxic inhalants, unlike guns, never need to be deployed on a few seconds notice for defense of life. Nor does the law forbid minors to possess toxic inhalants under legitimate circumstances; the law does not turn parents who give their children some furniture polish for polishing the furniture into criminals.
In contrast, the Reynolds gun lock bill does require that guns -- unlike poisons and toxic inhalants -- always be locked up. Additionally, the Reynolds gun lock bill forbids all legitimate uses of firearms by minors (except for a crabbed reference to self-defense, discussed above).
Rather than reflecting a legitimate attempt to prevent accidents, the gun lock bill would give Denver the harshest prohibition in the United States regarding minors and guns. If enacted in its current form, the bill’s overbreadth and gross interference with legitimate and Constitutionally protected activities will likely lead to its being overturned in the Constitutional challenge that will surely result.
A "safety" bill which requires only guns, but not other dangerous items such as inhalants, always be locked up is similar to law which applies a tax only on newspapers. While it might be Constitutionally permissible to tax all businesses, or to require safe storage or all dangerous items, it is not permissible to single out newspaper publishers or gun owners for unique punitive legislation. In striking down a law that imposed a 2% advertising revenue tax on large-circulation newspapers, the United States Supreme Court wrote:
It is not intended by anything we have said to suggest that the owners of newspapers are immune from any of the ordinary forms of taxation... But this is not an ordinary form of tax… It is bad, because in the light of its history and its present setting, it is seen as a deliberate and calculated device in the guise of a tax to limit the circulation of information...
Grosjean v.American Press Co., 297 U.S. 233 (1936). The Grosjean case suggests that a punitive and extreme gun-lock bill, which, in the guise of preventing accidents, abolishes all almost all legitimate gun usage by minors, will likely be found unconstitutional.
Courts have not sketched out any theory suggesting that minors have no right to arms. Courts have clearly stated that the right to arms is not "absolute," but the fact that bearing arms, like speech, is not an absolute right hardly justifies the wholesale destruction of the rights of minors which the two proposed ordinances would accomplish.
If courts are guided by the actual language of the Constitution, the above ordinances will be found unconstitutional, since Colorado’s Constitutional right to keep and bear arms refers to "The right of no person..." and does not authorize discrimination against minors.
If courts also look to the intent of the framers of the Constitution, the two ordinances will also be stricken. Virginia Senator Richard Henry Lee, who "was largely responsible for the adoption of the first 10 amendments to the Constitution,"(26) had this to say about gun ownership by young people: "to preserve liberty it is essential that the whole body of the people always possess arms and be taught alike, especially when young, how to use them."(27)
In one of the first cases interpreting the Second Amendment, the Georgia Supreme Court wrote:
Nor is the right in this discussion less comprehensive or valuable: "The right of the people to bear arms shall not be infringed." The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree... (28) (emphasis in original)
Of course a Georgia opinion is not binding law in Colorado, and the case opinion is quite old. Nevertheless, the legal reasoning applied in Georgia is easily applicable to the Colorado Constitution, especially since the Colorado Constitution’s right to bear arms is stated so unequivocally: "The right of no person to keep and bear arms.., shall be called in question."
Notes
1. Denver Revised Municipal Code, § 38-129.
2. Denver Code, § 38-122(b)(1).
3. People v. Walford, 716 P.2d 137 (Cob. App. 1985).
4.Grass v. People, 471 P.2d 602 (Cob. 1970).
5.United States v. Reese, 92 U.S. 214, 221 (1878).
6.People in the Interest of C.M., 630 P.2d 593, 597 (Cob. 1981).
7. C.R.S. § 33-6-107.
8. C.R.S. § 33-6-107.
9.People v. Czemerynksi, 786 P.2d 1100, 1111 (Colo. 1990).
10.Robertson v. Denver, no. 90 CV 603, Order at 6, 11-12.
11. C.R.S. § 18-1-704.
12. C.R.S. § 18-1-704.5
13. Denver Brief and Reply Brief in support of motion for summary judgment, Robertson v. Denver.
14. Order at 2.
15. C.R.S. § 18-12-105.
16. Denver Code § 38-117.
17. Denver Code § 38-116.5. The ordinance states that "The chief of police shall promulgate rules and regulations to implement the issuance of concealed weapons permit [sic], providing for, among other things, a background check of each applicant, a determination of the need of each applicant to be issued a concealed weapons permit, and a determination of the proficiency of each applicant in the care and use of any weapon applicant may carry." (emphasis added.) Discussions of police failure to apply the City Council’s carry ordinance are contained in the plaintiffs’ brief in Miller v. Collier, no. 92CA2030 (Cob. Court of Appeals, 1993).
18. E.g., C.R.S. § 18-1-601 et seq.
19. C.R.S. § 18-3-208: "A person who recklessly engages in conduct which creates a substantial risk of serious bodily injury to another person commits reckless endangerment..."
20. Denver Code § 38-46.
21. Mark Eddy, "Denver Seeks Anti-street-crime Laws," Denver Post, May 26, 1993, B1.
22. Romel Hernandez, "Englewood Girl, 11, ‘Critical’ after Sniffing Hair Spray," Rocky Mountain News, June 7, 1993.
23. Denver Code § 38-174.
24. Gun Control Act of 1968, 18 United States Code § 922(b)(1).
25.Denver Code § 38-174.26. The Columbia Encyclopedia, eds. William Bridgewater & Seymour Kurtz (New York: Columbia Univ. Pr., 1968), 1193.
27. Letters from the Federal Farmer to a Republican (New York, May 1788) [pamphlet], letter XVIII, reprinted in The Origin of the Second Amendment, ed. David A Young (Ontanagon, Mich.: Golden Oak Books, 1991), p. 355. Also reprinted in An Additional Number of Letters from the Federal Farmer to the Republican (Chicago: Quadrangle, 1962), pp. 168-70.
28. Nunn v. State, 1 Ga. 243, 251 (1846).
DAVID B. KOPEL is Research Director at the Independence Institute. His book The Samurai, the Mountie, and the Cowboy: Should America Adopt the Gun Controls of Other Democracies? (Buffalo, NY: Prometheus Books, 1992) was chosen to receive the Comparative Criminology Book Award by the American Society of Criminology’s Division of International Criminology.
JON CALDARA, current President of the Independence Institute, drew the cartoons included in this Issue Paper. Creator of the nationally-syndicated "B Street" comic strip, Mr. Caldara is a Boulder businessperson, and author of the Independence Institute paper Nothing is Funny: The True Costs of Political Correctness.
Dr. Rob S. Rice converted this document into electronic format.
