Gunowners, Colorado Quibble Over Legislative Rules in Red-Flag Law Passage

Televised hearings bring a new and closer look into a court fight over how Colorado lawmakers managed to get a red-flag gun law passed.

The Colorado statehouse. (Chris Marshall/CNS)

DENVER (CN) — Colorado defended its controversial red-flag gun law before a Denver judge Thursday after the Legislature violated procedure last year by voting on the measure without a complete reading as requested by the minority party.

The Extreme Risk Protection Orders Act enables the state to remove firearms from individuals believed to be a risk to themselves or others. The protection order bars a gun owner from possessing or purchasing guns for nearly a year and was first enforced in January.

The Rocky Mountain Gunowners Association sued the state last May, not to challenge potential enforcement of the law, but the fact that both chambers passed it without a full reading. The Colorado Constitution requires all bills be read at length unless lawmakers agree not to. Because lawmakers proceeded to a vote without granting requests from minority party leaders in the state Senate and House, the plaintiffs argue the law is invalid.

On behalf of the state, Assistant Solicitor General Grant Sullivan argued the reading of the bill is irrelevant to the fact that it was passed and has been enforced.

“It might be absolutely true that the House should have given a full reading, but to vindicate that wrong, they have to come to court and show something that impacted them personally, like ‘I did not receive full notice and might have changed my vote based on a full reading,’” Sullivan explained. “But that is not the case.”

Denver District Judge Eric Johnson pushed back, asking what other recourse a minority party would have except to have a bill be read out loud to show it was not passed unanimously.

Sipping his morning brew from a black Deathly Hollows mug, Johnson considered Sullivan’s argument that the court was being asked to overstep its powers.

“This is the type of dispute the courts were created for,” Johnson said. “If a court cannot hold the Legislature to this procedural mandatory requirement, who can?”

Sullivan, wearing a red necktie, countered that the majority chair has the authority to deny a full reading, or any other request made, without vocalizing her reason for doing so.

Still, Johnson said the reptilian part of his brain was stuck on the simple question of whether or not the bill was read twice—and all parties agree it wasn’t.

“If the court were to decide at this stage that it doesn’t matter that it wasn’t read twice, then six years from now when the parties have switched, we’re just sanctioning the majority to have the runaround of the minority,” Johnson said.

On behalf of the Rocky Mountain Gunowners Association, attorney Barry Arrington said the fact that the law is being applied underscores his case, that taxpayers have footed the bill for illegally passed law.

Wearing a mustard necktie, Arrington underscored Johnson’s concern that it’s bad form to let this or any constitutional mandate slide.

“The rule that we establish now isn’t about this bill, it’s about all bills,” Arrington said.

“Even if the bill would ultimately pass, a Legislature still has the right to filibuster,” he argued. “No one is alleging the legislatures are illiterate and therefore have to have the bill be read at length. The process of Section 22 is and always has been to slow the process down.”

This is the second case in which Republican lawmakers in Colorado used the mandatory reading requirement to challenge legislation passed by the Democrat-stacked Legislature in 2019. In order to slow the passing of a major oil and gas reform bill, the minority asked another 2,000-page recodification bill be read at length. An appeals court is reviewing a Denver judge’s order upholding the reading requirement. 

Judge Johnson concluded the three-hour telehearing with a promise to issue a ruling within a few weeks.

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