Democrats in the Centennial State did something a bit surprising this week. They pulled their attempt to ban AR-15s and other popular firearms, bucking a recent trend running through blue states in recent years. Contributing Writer Jake Fogleman explains some of the unique factors at play in his home state’s decision to drop its so-called assault weapons ban.
Meanwhile, Hunter Biden’s defense against federal gun charges received good and bad news. Two rulings from two federal appeals courts affect him. One directly and the other indirectly. I take a deep dive into why his Second Amendment claim is likely to be heard this summer and how it just got stronger.
Plus, Kevin Williamson from The Dispatch joins the podcast to discuss the state of the gun-rights movement.
Analysis: The Dynamics Behind Colorado’s Failed ‘Assault Weapons’ Ban [Member Exclusive]
By Jake Fogleman
Legislators just failed to advance a proposed ban on the sale and transfer of so-called assault weapons in increasingly blue Colorado.
Just days before the session gaveled to a close on Wednesday, the Senate co-sponsor of House Bill 1292 asked for the bill to be set aside without even getting its first committee hearing in the chamber. One day later, the 3-2 Democratic-controlled Senate State, Military, and Veterans Affairs Committee unanimously voted to table it for good. That ended the attempt to ban sales of AR-15s, AK-47s, and numerous other popular guns affected by the proposal.
The bill’s co-sponsor publicly attributed the move to a desire for extra time to have “more conversations” with her fellow Democrats about the measure’s merits beyond the constraints of the legislative session’s final days. In reality, it’s more likely proponents simply did not have the votes to advance a ban on commonly owned semi-automatic firearms. The ban’s unceremonious defeat, in back-to-back sessions no less, is a stark reminder of the uniquely potent politics of hardware restrictions–even in blue-trending Colorado.
That potency in Colorado stems at least in part from the state’s first hardware ban push.
Spurred by the 2012 Aurora theater shooting, lawmakers in 2013 passed a ban on the sale and future possession of ammunition magazines capable of holding more than 15 rounds. That marked the state’s initial major foray into restricting firearms after Republican lawmakers had spent the previous decade passing new gun-rights expansions. It also sparked an immediate backlash that allowed gun-rights supporters to successfully recall two Democratic state senators, including the Senate President, and forced a third to resign to avoid the same fate. Meanwhile, Democrats lost control of the state Senate the following year in the 2014 midterms due partly to that backlash.
That outcome temporarily chastened gun-control advocates in the state, though not for long.
Politically, Colorado has trended in a more progressive direction since those recalls. Democrats currently have more power in the state than at any time since before World War II, holding both the Governor’s mansion and 69 of the state’s 100 legislative seats. Along the way to amassing those historic majorities, Colorado Democrats have quickly come to re-embrace gun restrictions, passing most of the gun-control movement’s biggest priorities over the last five years.
However, that renewed momentum has not yet been enough to capture enough support to pass an assault weapons ban, including among some of the state’s most vocal gun-control advocates. Had the assault weapon bill been scheduled for a proper committee hearing, it would have faced a deciding swing vote from Tom Sullivan, a Democratic Senator and leading figure on gun politics in Colorado who lost his son in the 2012 Aurora theater shooting.
Though Sullivan has backed most gun bills the state has passed in recent years, he expressed skepticism over the efficacy of state-level gun bans and concern that they could revive the backlash that plagued his party in 2013.
“Banning? That doesn’t end well for us,” Sullivan told The Washington Post last year after the previous ban died in a House committee. “And I’m speaking as the father of a son who was murdered by an assault weapon.”
Following the bill’s withdrawal, Sullivan confirmed to the Associated Press that he would have voted “no” had it been put to a vote. He urged his Democratic colleagues to focus on other gun measures instead.
“The narrative is all wrong,” Sullivan said. “That’s what they want you to believe, that it’s assault weapons and schools. It’s not. … It’s suicides and it’s domestic violence.”
Furthermore, Governor Jared Polis (D.) presented another obstacle to the ban’s passage. Though he largely equivocated about his position on the ban as it was working its way through the state House, he eventually expressed relief about its fate in a post-session interview with the editorial board of the Denver Gazette.
“I’ve always been skeptical about that kind of measure,” Polis said, neither confirming nor denying he worked behind the scenes to lobby against it.
This year certainly won’t be the last time gun-control advocates try to get the ban across the finish line in the Centennial State, though. Emboldened by the recent resurgence of state-level assault weapon bans in places like Delaware, Illinois, and Washington, advocates will likely continue to press the issue in trifecta-blue states across the country. Plus, the incremental success of getting the ban further this year than last already has the sponsors of Colorado’s measure gearing up to give it a third try next year.
“I think we had a pretty Herculean effort this year, going from first committee death last year to passing an entire chamber,” State Rep. Tim Hernández told the Colorado Sun. “About 50 days from now, I will be pulling the bill title for next year. And I’m really looking forward to running it next year as well.”
Over the long run, it’s entirely possible that proponents of a ban eventually win the war of attrition against Colorado lawmakers who are currently afraid to take the political hit of signing on to a gun ban. That will almost certainly be true if gun-rights advocates are unable to make any inroads back into political power in the state.
But for now, an assault weapon ban remains a bridge too far for a state that is moving left and running out of other gun-control measures to adopt.
Podcast: The State of the Gun-Rights Movement (Ft. The Dispatch’s Kevin Williamson) [Member Early Access]
By Stephen Gutowski
This week, we’re doing a guest swap.
I was on The Dispatch Live with Kevin Williamson a few days ago. So, he graciously agreed to join me on The Weekly Reload Podcast. We covered some ground on where the gun-rights movement stands today on his show, but there was a lot left to get at.
Will Trump turn away from gun-rights activists like he did with pro-lifers? What does it say about that movement that it’s so reliant on Trump and the Republican party writ large? Why aren’t we seeing more of a political effect from all those new pandemic-era gun owners? Will we ever?
Similarly, we picked up where we left off on the Washington Post’s Pulitzer prize for its AR-15 expose publishing graphic images of mass shooting crime scenes. Williamson argued the piece was littered with factual errors and, worse, it was intentionally misleading in what images it didn’t publish.
You can listen to the show on your favorite podcasting app or by clicking here. Video of the episode is available on our YouTube Channel. An auto-generated transcript is here. Reload Members get access on Sunday, as always. Everyone else can listen on Monday.
Contributing writer Jake Fogleman and I also discuss The Reload‘s exclusive reporting on NRA President Charles Cotton’s private jet travel on the news update. We also talk about Hunter Biden’s federal gun charges being upheld by a federal appeals court. Plus, we cover the failure of an “assault weapon” ban in Colorado, a bill going after Glock handguns in New York, and the latest in a Texas congressional primary soaked in gun politics. Audio is here. Video is here.
Analysis: Hunter Biden Gun Trial Looks Set for Election Season [Member Exclusive]
By Stephen Gutowski
One federal appeals court ruled that Hunter Biden’s gun charges could proceed this week, while another added support to his Second Amendment argument against them.
On Thursday, a three-judge panel on the Third Circuit Court of Appeals unanimously rejected an attempt by the President’s son to avoid a trial. Biden tried to get the panel to end his case based on his since-retracted agreement with prosecutors. Instead, they decided he didn’t have a claim to avoid prosecution.
“The defendant in this criminal case appealed three pretrial orders entered on April 12, 2024, denying his motions to dismiss the indictment,” the panel wrote in US v. Biden. “This appeal is DISMISSED because the defendant has not shown the District Court’s orders are appealable before final judgment. ”
The ruling means the younger Biden is likely to face a federal judge this summer, likely stealing some attention away from the legal troubles of his father’s opponent in November’s election. However, the panel didn’t rule on his underlying Second Amendment defense, and another federal court just provided further backing to that argument.
On the same day the Third Circuit denied Hunter’s request, a three-judge panel on the Ninth Circuit Court of Appeals ruled the federal gun ban he is being prosecuted under is unconstitutional as applied to a non-violent felon whose rap sheet includes a drug possession charge. The 2-1 ruling in US v. Duarte provides some more ammunition for Hunter’s lawyers to use in his case. After applying the history and tradition standard for judging the constitutionality of gun laws handed down by the Supreme Court in 2022’s New York State Rifle and Pistol Association v. Bruen, the majority decided there wasn’t enough evidence the defendant’s previous crimes would have resulted in a lifetime gun ban at the time the Second Amendment was adopted.
“Duarte’s underlying vandalism conviction, we have explained, likely would have made him a misdemeanant at the Founding,” the panel wrote. “Duarte’s second predicate offense—felon in possession of a firearm, Cal. Pen. Code § 29800(a)(1)—was a nonexistent crime in this country until the passage of the Federal Firearms Act of 1938. As for Duarte’s remaining convictions—drug possession and evading a peace officer—we do not know whether either crime traces back to an analogous, Founding-era predecessor because the Government failed to proffer that evidence. Based on this record, we cannot say that Duarte’s predicate offenses were, by Founding era standards, of a nature serious enough to justify permanently depriving him of his fundamental Second Amendment rights.”
In a footnote, the majority in Duarte argued the drug possession charges were perhaps the least analogous to Founding Era laws.
“Criminalizing drug possession, in particular, did not appear to gain significant momentum until the early 20th century, with the passage of such laws as the Food and Drug Act of 1906 and the Harrison Narcotics Tax Act of 1914,” the panel wrote. “Before then, what we now think of as ‘illicit drugs,’ such as opium and cocaine, ‘were . . . legal in the United States’ for a long stretch of this country’s history.”
Biden’s lawyers have argued the judge in his case should dismiss his three-count felony firearms indictment for purchasing and possessing a revolver during a time in his life for the same reasons.
“Not only does the unconstitutionality of Section 922(g)(3) render Mr. Biden’s alleged violation of that unconstitutional statute baseless, it compels the same conclusion as to the prosecution’s charges that Mr. Biden made a false statement in denying his status as a user of a controlled substance under 18 U.S.C. § 922(a)(6) and caused the seller (a holder of a federal firearms license) to maintain a record of this false answer in violation of 18 U.S.C. § 924(a)(1)(A),” their motion in US v. Biden reads.
The only other federal appeals court to rule on the question found the ban was unconstitutional as applied to a marijuana user.
“In short, our history and tradition may support some limits on an intoxicated person’s right to carry a weapon, but it does not justify disarming a sober citizen based exclusively on his past drug usage,” Fifth Circuit Judge Jerry E. Smith wrote for a unanimous three-judge panel in US v. Daniels. “Nor do more generalized traditions of disarming dangerous persons support this restriction on nonviolent drug users.”
Biden’s lawyers cited that ruling in arguing his use of crack cocaine or other drugs should not have cost him his gun rights.
“The Bruen framework is clear, and the historical record is immutable and the same before this Court as it was when the Fifth Circuit addressed it,” they wrote.
Of course, not every federal judge has come down on the side of drug users or other non-violent felons who’ve challenged their gun possession charges. In fact, most have upheld those convictions by either determining Second Amendment protections only extend to the law-abiding or the historical gun bans cited in Duarte are analogous to the modern bans. The Supreme Court has not yet agreed to hear a case on the question and is unlikely to do so before Biden’s case goes to trial.
That’s it for now.
I’ll talk to you all again soon.
Thanks,
Stephen Gutowski
Founder
The Reload
