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Silverman: Expect Colorado’s Supreme Court to uphold assault weapon bans

The Boulder King Soopers shooting illustrates why President Biden needs our support to resurrect a national assault weapons ban

Boulder is generally spectacular, but Sept. 8, 2006, was particularly magnificent where Broadway meets Baseline. CU Law School’s new Wolf Building was dedicated. U.S. Supreme Court Justice Stephen Breyer, a gun control supporter, was a special guest.

States and cities had long regulated and forbidden firearms for public safety reasons. America’s high court never interfered. Cities like Washington and Denver reacted to intolerable gun crimes by enacting municipal laws. On March 30, 1980, as I attended CU Law, a Colorado madman went to Washington to shoot President Reagan.

My generation grew up with these things. JFK, RFK and MLK were all shot down. Many other civil rights leaders were shot. Let’s never forget Republican civil rights leader Abraham Lincoln was shot dead in our nation’s capital.

Craig Silverman

I went straight from CU Law to the Denver DA’s Office, where we targeted gun crimes. Our office supported gun control. Criminals who used firearms went to prison on lengthy sentences. We participated in gun buyback programs along with the city and Denver Nuggets.

Many people were getting shot in Denver as the 1980s progressed. On June 18, 1984, Jewish radio host Alan Berg died in a hail of bullets fired by a white nationalist with an assault weapon. It happened in Berg’s own central Denver driveway.

As a Chief Deputy DA, I was called to the homicide scene of Cameron Smith, shot dead for wearing a red hat in Park Hill on Nov. 3, 1988. Denver’s gang wars had begun and was increasingly fought with high-powered weapons and drive-by shootings. Violent gun crime was rising. Denver reacted with a 1989 assault weapons ban.

That law got delayed when a Denver judge ruled it unconstitutional. But the Colorado Supreme Court disagreed. Authoring this brilliant Robertson v. Denver opinion was a Colorado Republican named Luis Rovira, the United States’ first-ever Hispanic chief justice. His ruling balanced gun rights versus public safety.

Chief Justice Rovira wrote in 1994: “The unique characteristics of assault weapons coupled with the prevalent use of such weapons for criminal purposes establish that such weapons pose a substantial threat to the health and safety of the citizens of Denver.”

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Rovira obtained his entire higher education in Boulder, Colorado. But first, he fought Nazis in Europe with the 102nd Infantry Division. Rovira always remembered atrocities he witnessed against Jews, gays and Hitler’s other targets. 

After the war, Rovira was an Army officer who starred at CU Boulder as a student, football player and student body president. Next, he excelled at CU Law. Rovira then fought for civil rights in Boulder and Denver.

Rovira is most remembered for his 1993 written opinion in Evans v. Romer, striking down Colorado’s Amendment 2, which unconstitutionally discriminated against homosexuals. In 1996, the U.S. Supreme Court and Justice Breyer affirmed Rovira’s good judgment. Justice Antonin Scalia dissented.

Rovira’s ruling upholding Denver’s assault weapons ban has thus far stood the test of time. It was also 1994 when Dems like Biden and Clinton followed Denver’s lead and produced a national assault weapons ban. But it lasted only 10 years. That disastrous sunset opened the floodgates to mass murderers with assault weapons. Last Monday, it happened again at King Soopers, a short drive down Broadway from CU Law School. 

Earlier this month, a Boulder judge surprisingly struck down Boulder’s assault weapons ban. Boulder’s sensible ordinance, passed post-Parkland, emulated Denver’s 1989 law. But gun industry plaintiffs are persistent and may have found a hole in Colorado statutes. That hole can and will be fixed.

Expect Colorado’s Supreme Court to uphold municipal or statewide assault weapon bans. Rovira showed the way. Public sentiment supports gun control. But the repercussions of Donald Trump and Scalia still haunt us. 

Two years after he sat on that stage at CU Law, Justice Breyer lost the biggest U.S. Supreme Court gun battle ever to Scalia, who authored a 5-4 majority decision in D.C. v. Heller. The court decided for the first time ever that the Second Amendment’s prefatory language about a “well-regulated militia” meant nothing. Every American adult has a fundamental right to a firearm, Scalia wrote, including in Washington.

Justice Breyer was justifiably outraged. He joined Justice Stevens’ 46-page dissent and then wrote 44 pages more. Where were the balancing tests for public safety? Why not something akin to First Amendment analysis with public safety objections considered? Breyer predicted “unfortunate consequences that today’s decision is likely to spawn.” He was sadly correct. But Justice Breyer is still fighting. So am I.

Now, President Biden wants America’s assault weapons ban resurrected. He needs our support. Trump’s three pro-gun (mini-Scalia) Supreme Court appointees are problems. So is the filibuster. How many King Soopers massacres must happen before a larger Supreme Court and/or a filibuster-free Senate become matters of life or death?

Cities like Denver, Washington and Boulder must show the way just as they have in the past. The constitution is not a suicide pact. May the murders of the Boulder Ten be America’s critically needed catalyst for change.  


Craig Silverman is a former Denver chief deputy DA who also has worked in the media for decades. Craig is columnist at large for The Colorado Sun. He practices law at the Denver law firm of Springer & Steinberg, P.C. and is host of The Craig Silverman Show podcast.


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