By C. J. Garbo | Guest Commentary, Rocky Mountain Voice
Colorado has spent more than a generation treating the Second Amendment as a public-policy question.
That is the first mistake.
The Bill of Rights does not identify subjects upon which government may act whenever legislators believe their intentions are sufficiently benevolent. It identifies areas in which governmental power is constrained. The distinction is fundamental. A constitutional right does not exist at the pleasure of a legislative majority, nor does its force rise and fall with polling, tragedy, political fashion, or the confidence of public officials in their own judgment.
This is particularly important when discussing firearms because the Second Amendment was never merely an eighteenth-century hunting provision. Its historical purpose was substantially more serious.
The Founding generation understood an armed citizenry as part of the architecture of a free republic. The historical record reflects concern about standing armies, centralized coercive power, governmental disarmament, and the ability of a free people to defend themselves and their constitutional order. Congress’s own Constitution Annotated traces the Amendment through the English experience with disarmament and standing armies, the colonial experience, state declarations of rights, and the Founding-era conception of a militia drawn from the body of the people.
James Madison made the political theory explicit in Federalist No. 46. In considering the possibility of federal tyranny, he contrasted a standing army with “a militia amounting to near half a million of citizens with arms in their hands.” More important than the eighteenth-century numbers was Madison’s principle. The distribution of arms among ordinary citizens was itself part of the distribution of political power.
The Supreme Court eventually confirmed what that history strongly suggests. District of Columbia v. Heller held that the Second Amendment protects an individual right to possess firearms for lawful purposes. McDonald v. Chicago held that the right is fundamental and enforceable against state and local governments. New York State Rifle & Pistol Association v. Bruen then rejected ordinary means-end balancing as the governing test. When the Amendment’s text covers the conduct at issue, the government bears the burden of showing that its restriction is consistent with the Nation’s historical tradition of firearm regulation.
This does not mean every firearms regulation is unconstitutional. Heller itself recognized longstanding restrictions in particular contexts. Constitutional fidelity requires more discipline than absolutism.
It also requires more discipline than Colorado has shown.
Three current federal cases expose the problem from different directions.
Howeth v. Denver presents what may be the purest example of regulatory accumulation becoming constitutional exclusion. The NRA and two nonresident plaintiffs filed suit on August 12, arguing that Colorado’s concealed-carry residency and reciprocity rules, combined with Denver’s prohibition on open carry, leave certain otherwise lawful nonresidents with no legal method of carrying a handgun for self-defense in Denver. The case remains newly filed, so these are allegations rather than judicial findings. But the structural issue is difficult to ignore. Colorado closes one lawful avenue. Denver closes the other. The citizen’s constitutional right disappears in the space between two governments, each pointing to its own rule.
That is precisely why constitutional analysis cannot examine regulations only one at a time.
A government can burden a right without formally announcing that it has abolished it. Ten restrictions, each defended as modest in isolation, can produce a prohibition in combination. Constitutional rights would mean very little if government could accomplish cumulatively what it could not accomplish directly.
The second case is even more revealing because it is technically, I would argue, a Fourth Amendment case.
Colorado Firearms, Ammunition and Accessories, LLC v. Polis challenges provisions expanded by HB 26-1126 governing firearms dealers. The enacted law requires dealers to make specified transaction records available “at all times” for inspection by a duly authorized peace officer. Refusal to exhibit required records can constitute a class 2 misdemeanor.
The plaintiffs argue that this creates an unconstitutional warrantless inspection regime. Their complaint contends that the law imposes no meaningful limits on timing, frequency, or officer discretion. They rely in part on Supreme Court precedent recognizing Fourth Amendment protection for commercial premises and requiring meaningful safeguards even when warrantless administrative inspections occur in closely regulated industries. The case is active and unresolved.
Its importance reaches well beyond firearms dealers.
The Bill of Rights is not divisible according to the popularity of the person invoking it.
A gun dealer does not surrender the Fourth Amendment because elected officials dislike the product he lawfully sells. A firearms owner does not possess a weaker Second Amendment because government has characterized his rifle as politically undesirable. A traveler does not cease possessing constitutional rights because his driver’s license was issued by another state.
The constitutional principle is the same in every instance. Government must remain inside the boundaries placed upon it, which brings us to the federal government’s extraordinary lawsuits against Colorado and Denver.
The Department of Justice sued Denver on May 5 over its prohibition on certain semiautomatic rifles, including AR-15-style firearms. The following day, DOJ sued Colorado over its prohibition on magazines capable of holding more than fifteen rounds. Both complaints argue that the prohibited arms or components are commonly possessed by law-abiding Americans for lawful purposes.
Their procedural theory is especially noteworthy.
DOJ did not frame either case simply as an ordinary Second Amendment lawsuit. It invoked 34 U.S.C. § 12601, part of the Violent Crime Control and Law Enforcement Act of 1994. That statute authorizes the Attorney General to seek relief when law-enforcement officers engage in a pattern or practice that deprives people of federal constitutional rights. DOJ’s theory is that continuing enforcement of an unconstitutional firearms prohibition constitutes the very pattern or practice of civil-rights deprivation the statute authorizes the federal government to stop.
Whether the courts ultimately accept that application of § 12601 remains to be seen. It is an unusual theory and deserves serious judicial examination.
But its significance is unmistakable.
For decades, gun-control proponents have successfully framed the firearms debate primarily as a dispute between public safety and gun ownership. These cases invert that framing. They ask whether government enforcement itself can become the civil-rights problem.
That is the more constitutionally mature question.
The central failure of Colorado firearms policy is not that legislators want fewer murders. Every serious person wants fewer murders. The failure is the repeated assumption that a desirable objective expands governmental authority.
It does not.
Government cannot suspend the Fourth Amendment because searches might improve compliance. It cannot extinguish the right to bear arms for a category of lawful travelers because reciprocity is administratively inconvenient. It cannot avoid the Second Amendment’s protection of commonly possessed arms merely by assigning them a disfavored statutory label.
Rights matter most precisely when government has a persuasive policy argument for violating them.
Colorado’s experience since Columbine should also have produced greater intellectual humility.
The state has adopted increasingly extensive firearms regulation over the years. Yet the empirical record does not support the confident political narrative that each additional restriction has steadily produced greater safety.
Colorado’s own criminal-justice reporting shows that its violent-crime rate increased from 308 per 100,000 residents in 2014 to 474 in 2023, while the national rate was essentially unchanged over those endpoints, moving from 372 to 374.
Colorado public-health data show that the share of homicide deaths involving firearms rose from 56 percent in 2010 to 71 percent in 2023. CDC data show Colorado’s age-adjusted firearm mortality rate at 15.3 per 100,000 residents in 2024. For comparison, it was 11.5 in 2013, the year Colorado enacted its fifteen-round magazine restriction.
Those statistics do not prove that gun-control laws caused violence. Serious analysis should reject that inference.
They do establish something politically important: Colorado cannot point to the accumulation of restrictions and declare the policy experiment obviously vindicated. The promised relationship between more regulation and greater safety is nowhere to be seen.
Even the broader academic literature requires substantially more caution than political rhetoric usually permits. RAND’s 2024 synthesis found limited evidence that high-capacity-magazine bans may reduce mass-shooting incidents and fatalities. It found only limited evidence concerning assault-weapon bans and school-shooting injuries, while evidence concerning assault-weapon bans and mass shootings more broadly remained inconclusive.
That is not evidence that regulation never matters. It is evidence against governing as though the empirical question has been conclusively settled.
And this is where the constitutional argument becomes decisive.
Enumerated rights do not depend upon government winning an econometric debate.
The First Amendment does not disappear if government produces a study suggesting that censorship might reduce social unrest. The Fourth Amendment does not disappear because warrantless searches might occasionally uncover more contraband. Due process does not become optional because procedural protections sometimes allow guilty people to escape punishment.
Our system deliberately accepts certain costs because concentrated government power has costs of its own.
The Second Amendment deserves the same constitutional seriousness.
For years, defenders of the right to keep and bear arms have warned that gun-control laws disproportionately govern people who already obey laws. That observation is not a slogan. It describes an elementary enforcement problem.
A person willing to commit murder has already rejected the prohibition on murder. The existence of an additional prohibition concerning magazine capacity, firearm configuration, waiting periods, geographic carry restrictions, or administrative permissions does not exert the same force upon him that it exerts upon someone determined to remain lawful.
The conscientious citizen asks what the law allows.
The criminal asks whether he will be caught.
That difference matters.
It means every new firearms restriction should face two rigorous questions.
Does the Constitution permit it?
Does credible evidence demonstrate that its burden on lawful citizens is justified by an actual public-safety result?
Colorado has too often reversed the order. Legislators begin with a desired restriction, presume its wisdom, and treat constitutional objections as obstacles to implementation.
The Framers designed the system the other way around.
The Constitution is the obstacle.
It is supposed to be.
Howeth, the HB 26-1126 challenge, and the DOJ litigation therefore share a deeper subject. None is ultimately only about concealed carry, dealer records, magazine capacity, or semiautomatic rifles.
They concern the limits of government itself.
A state that can transform the exercise of an enumerated right into a maze of overlapping prohibitions has misunderstood constitutional liberty. A state that subjects politically disfavored lawful businesses to government inspection without adequate constitutional safeguards has misunderstood limited government. A city that prohibits possession of arms owned by millions of ordinary Americans must answer to the Constitution before it answers to its own policy preferences.
Colorado’s leaders should reconsider the assumption that another restriction represents progress merely because it is another restriction.
Good government is not measured by the quantity of laws it passes.
It is measured by whether those laws are necessary, effective, constitutionally legitimate, and respectful of the citizen.
That standard is conservative in the oldest American sense. It distrusts concentrated power. It demands evidence before coercion. It places constitutional boundaries above political convenience. It remembers that elected officials possess delegated powers, while citizens possess rights.
Colorado does not need another generation of firearms policy built upon the theory that liberty is what remains after government finishes regulating it.
The Founders gave us the opposite order.
Government receives what the Constitution permits.
We The People retain the rest.
C. J. Garbo is a political strategist, cybersecurity executive, former law enforcement officer, and longtime public servant with experience spanning campaigns, public policy, elections, and community governance. He has managed political campaigns from the local to federal level, served as Chairman of the Castle Rock Election Commission, and former Chairman of the Douglas County Planning Commission.
Garbo also brings 15 years of law enforcement and public safety experience, including service as a Reserve Police Officer in Manitou Springs and Reserve Deputy Marshal in Hugo, Colorado. His background gives him a practical understanding of constitutional policing, public safety, individual rights, and the limits of government authority.
A constitutional conservative and political commentator, Garbo writes on government accountability, civil liberties, public policy, and the proper balance between public safety and the rights protected by the Constitution.
Editor’s note: Opinions expressed in commentary pieces are those of the author and do not necessarily reflect the opinions of the management of the Rocky Mountain Voice, but even so we support the constitutional right of the author to express those opinions.