Colorado Criminal Law – The Second Amendment – Right To Bear Arms and The Dangerous Weapon
By H. Michael Steinberg Colorado Criminal Defense Lawyer
Colorado Criminal Law – The Second Amendment – Right To Bear Arms and The Dangerous Weapon – The Second Amendment of the United States Constitution and Article II, Section 13 of the Colorado Constitution protect the right to possess arms in the state of Colorado. Two laws present very different results when answering the question: Are there limits on those rights?
The Second Amendment And “Dangerous Weapons” – The Short Barreled Shotgun
The Second Amendment to the United States Constitution reads:
“[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
But the State of Colorado and the United States Supreme Court has placed limits on the right to bear arms. One of those limitations is a law which prohibits the possession of a so called “dangerous weapons”- the “short-barreled shotgun.”
The Court has held that a:
“shotgun having a barrel of less than eighteen inches in length” does not have a “reasonable relationship to the preservation or efficiency of a well regulated militia.”
(and that)
“the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.”
Now Let’s Look At The Colorado State Constitution – Article II, Section 13
Article II, section 13 of the Colorado Constitution reads, in pertinent part:
“[t]he right of no person to keep and bear arms in defense of his home, person and property . . . shall be called in question.”
Again, under Colorado constitutional law, the right to bear arms in Article II, Section 13:
“the state may regulate the exercise of that right under its inherent police power so long as the exercise of that power is reasonable.”
This was the holding in the 1994 Colorado case of Robertson v. City & Cty. of Denver.
According to law enforcement – “short shotguns” – because of the spread of – and indiscriminate nature of – the shot that makes them easy to conceal and are believed to be used primarily for a criminal purpose.
What follows is the statute outlawing and punishing possession Short Shotgun:
§ 18-12-102. Possessing a Dangerous or Illegal Weapon – Affirmative Defense
(1) As used in this section, the term “dangerous weapon” means a firearm silencer, machine gun, short shotgun, short rifle, or ballistic knife.
(2) As used in this section, the term “illegal weapon” means a blackjack, gas gun, metallic knuckles, gravity knife, or switchblade knife
(3) A person who knowingly possesses a dangerous weapon commits a class 5 felony.
Each subsequent violation of this subsection (3) by the same person shall be a class 4 felony.
(4) A person who knowingly possesses an illegal weapon commits a class 1 misdemeanor.
(5) It shall be an affirmative defense to the charge of possessing a dangerous weapon, or to the charge of possessing an illegal weapon, that the person so accused was a peace officer or member of the armed forces of the United States or Colorado National Guard acting in the lawful discharge of his duties, or that said person has a valid permit and license for possession of such weapon.
The Colorado Law of Possession of a Weapon by a Previous Offender (POWPO) Section 18-12-108(1), (2)(a), C.R.S. adds an interesting wrinkle to this analysis.
Section 18-12-108, Possession of Weapons by Previous Offenders reads.
(1) A person commits the crime of possession of a weapon by a previous offender if the person knowingly possesses, uses, or carries upon his or her person a firearm as described in section 18-1-901(3) (h) or any other weapon that is subject to the provisions of this article subsequent to the person’s conviction for a felony, or subsequent to the person’s conviction for attempt or conspiracy to commit a felony, under Colorado or any other state’s law or under federal law.
(2) (a) Except as otherwise provided by paragraphs (b) and (c) of this subsection (2), a person commits a class 6 felony if the person violates subsection (1) of this section.
(b) A person commits a class 5 felony, as provided by section 18-12-102, if the person violates subsection (1) of this section and the weapon is a dangerous weapon, as defined in section 18-12-102(1).
(c) A person commits a class 5 felony if the person violates subsection (1) of this section and the person’s previous conviction was for burglary, arson, or any felony involving the use of force or the use of a deadly weapon and the violation of subsection (1) of this section occurs as follows:
(I) From the date of conviction to ten years after the date of conviction, if the person was not incarcerated; or
(II) From the date of conviction to ten years after the date of release from confinement, if such person was incarcerated or, if subject to supervision imposed as a result of conviction, ten years after the date of release from supervision.
(d) Any sentence imposed pursuant to this subsection (2) shall run consecutively with any prior sentences being served by the offender.
(3) A person commits the crime of possession of a weapon by a previous offender if the person knowingly possesses, uses, or carries upon his or her person a firearm as described in section 18-1-901(3) (h) or any other weapon that is subject to the provisions of this article subsequent to the person’s adjudication for an act which, if committed by an adult, would constitute a felony, or subsequent to the person’s adjudication for attempt or conspiracy to commit a felony, under Colorado or any other state’s law or under federal law.
(4) (a) Except as otherwise provided by paragraphs (b) and (c) of this subsection (4), a person commits a class 6 felony if the person violates subsection (3) of this section.
(b) A person commits a class 5 felony, as provided by section 18-12-102, if the person violates subsection (3) of this section and the weapon is a dangerous weapon, as defined in section 18-12-102(1).
….
(d) Any sentence imposed pursuant to this subsection (4) shall run consecutively with any prior sentences being served by the offender.
(5) A second or subsequent offense under paragraphs (b) and (c) of subsection (2) and paragraphs (b) and (c) of subsection (4) of this section is a class 4 felony.
…
(B) For the purposes of this paragraph (c), “felony” means any felony under Colorado law, federal law, or the laws of any other state; and
(II) A violation of this section may result in a sentence of imprisonment or fine, or both.
(d) The act of providing the written advisement described in this subsection (6) or the failure to provide such advisement may not be used as a defense to any crime charged and may not provide any basis for collateral attack on, or for appellate relief concerning, any conviction.
The Defense Of The Right To Bears Arms For Self Defense
The Colorado Courts have recognized what is called an “affirmative defense” to the crime of possession of a weapon by a previous offender (POWPO). This defense is based on the right to bear arms for the purpose of self-defense. It emerges from Colorado’s right to bear arms (above) found in Article II, Section 13 of the Colorado Constitution.
While convicted felons are prohibited from bearing arms under either Colorado state or Federal Law. It is flat prohibition based on the status of felony conviction, Colorado allows a defense to a charge under this law – even if the accused is a convicted felon.
If a convicted felon is charged under section 18-12-108, he or she can present competent evidence that his or her purpose in possessing the weapon in questions was as a defense of home, person, and property thereby raising the affirmative defense of self defense.
Put differently – it is an affirmative defense to the charge of [POWPO] that the defendant possessed a firearm for the purpose of defending himself, home, or property from a threat of harm.
The requirement to raise “some evidence” is not a heavy burden. As long as the accused presents some credible evidence, a “scintilla” (very small amount) of evidence, in support of the affirmative defense, a jury must decide whether the defendant possessed a weapon for a constitutionally protected purpose.
If the accused convicted felon presents such evidence, the prosecution then has the burden of disproving the affirmative defense beyond a reasonable doubt.
Summary and Conclusion
Colorado law recognizes the right of it’s citizens – even convicted felons – to an affirmative defense to the charge of POWPO which is based on Colorado’s constitutional right to keep arms.
If a Defendant presents competent evidence showing that his or her purpose in possessing a weapon was the defense of his home, person, and property the or she may raise the affirmative defense. The jury then is instructed to decide the accused’s purpose for possessing a weapon.
That evidence which is necessary to lawfully raise the affirmative defense instruction “may come solely from the defendant’s testimony, however improbable.”
If the defendant meets this standard, the prosecution then has the burden to disprove the affirmative defense beyond a reasonable doubt….
But note, this defense is only if the Defendant is in Colorado state court. Federal law and therefore federal prosecutions are not affected by this defense.
Colorado Criminal Law – The Second Amendment – Right To Bear Arms and The Dangerous Weapon
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ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at [email protected] – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.
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Other Articles of Interest:
- Law Resources
- Possession of a Weapon by a Previous (Felony) Offender And Colorado Gun Rights – §18-12-108
- Possession Of An Illegal – Dangerous Weapon Under Colorado Law – 18-12-102 and 18-12-105
- Colorado State Felony – Menacing (18-3-206)
- Colorado State Felonies – Colorado Felony Robbery and Aggravated Robbery (18-4-301, 18-4-302)
