District Court Rejects Appeal in Denver Gun Case
by Duncan Philp, May 24, 2003
[On December 15, 2001, Bill of Rights Day, Duncan Philp, along with Rick Stanley, was arrested at a political rally in Denver for openly carrying a firearm. Whereas Philp argues the Colorado Constitution guarantees the right to carry a gun for self-defense, a Denver ordinance prohibited the practice. Philp was convicted in Denver court, and he recently lost a district-court appeal. He says he and his lawyer, Paul Grant, intend to appeal again. His reply to the latest ruling follows.]
Denver District Court Judge Joseph E. Meyer III... has affirmed the decision of Denver County Court Judge Mary Celeste and decided like Celeste that no one has the right to carry a gun for self defense [in Denver]. Here are some of his comments as to why he defended her actions.
"Defendant argues that he was entitled to present a defense and have the jury instructed that he 'had the right to openly carry a weapon, even not perceiving a direct threat,' for general self defense purposes. I disagree. Philp wanted to expand the scope of the allowable affirmative defense set forth in 38-118 by eliminating the need for the 'direct and immediate threat' requirement. Philp's proposed self-defense instruction was equivalent to instructing the jury that everyone can openly carry a firearm in Denver if he or she claims it is for self-defense. That is not the law." -- Judge Meyer
I didn't want to expand on the Denver City ordinance, I simply ignored it because it is in violation of the law. The law being Colorado state law, which clearly says that I have a right to carry a gun for the purposes of self-defense.
"The right of no person to keep and bear arms in defense of his home, person and property, or in aid of civil power when thereto legally summoned, shall be called in question: but nothing herein contained shall be construed to justify the practice of carrying concealed." -- Colorado Constitution, Art. II, Sec. 13.
I don't just see the words "direct and immediate danger" and I suspect the reason we don't see those words written into the state constitution is because no one can predict the future or be able to determine when or where their lives might be in "direct and immediate danger." A person doesn't need to be a philosophy professor or even a half-wit judge to understand this concept. A person need only spend one day in Denver to discover that they are in "direct and immediate danger" from either the local gang-bangers, the Denver PD or Denver's finest, the drunks who live in and around Denver Civic Park, which by the way is located right in front of Judge Meyer's court room.
"An ordinance is presumed to be constitutional. In order to attack the constitutionality of the ordinance, Philp had to establish, beyond a reasonable doubt, that the restrictions imposed by the ordinance are so severe as to render the ordinance unconstitutional. Philp did not meet this burden of proof." -- Judge Meyer
What a joke when you consider the fact that Judge Celeste wouldn't allow my lawyer Paul Grant to talk to the jury about Article II section 13 of the Colorado State Constitution. Even a paralegal knows that you cannot have two laws which conflict with one another. A greater law is always given precedent over the lesser law and of course a city ordinance is the lesser of the two laws. The leftist judge denied me the ability to meet this "burden of proof."
"Denver City Council has determined that allowing anyone to carry a gun for self defense would endanger public safety." -- Judge Meyer
But the state legislature, which vastly outweighs the Denver City council in numbers and in authority, has recently decided otherwise and reaffirmed the right to keep and bear arms for the purpose of self defense just this past session. A law which has instructed that all cities within the state of Colorado do not have the authority to write any ordinances that are in conflict with state law. [Editor's note: The legislature passed SB-25, and the governor signed it into law. The law strips localities' ability to restrict firearms more severely than what state law allows. However, SB-25 contains a loophole that might allow cities to prohibit open carry on tax-funded property by posting a sign.]
The Denver City council never did offer any proof that people carrying for the reasons of self-defense would be a danger to public safety. Certainly the Denver County prosecutor was never able to prove that I was a danger to the community when I carried openly that day on December 15th. I thought the burden of proof was upon the prosecutor, and not the defendant. I never even touched that .40 caliber black powder Uberti pistol the day I showed up to enforce state law and I certainly never threatened anyone's life that day.
I have had a gun in my hands since the age of six and I was a Gunner's mate in the United States Coast Guard. Funny how they trusted me with a .50 caliber Ma Duce in the military but all of the sudden the city of Denver does not trust me with a black powder pistol in Veterans Park. Go figure... But according to the people who never even bothered to inquire as to my background with guns I'm danger to the public safety and can't be trusted with a gun.
Judge Meyers ignores the fact that this same illegal city ordinance allows for people who are not residents of Denver to carry in their cars concealed because state law allows them to do so. And why would someone who carries a gun concealed in their car be any less or any more of a danger to the public than a person who carries openly?
"Philp also asked the Court to interpret the Second Amendment of the United States Constitution to guarantee an individual the right to possess and use firearms. The Fifth Circuit in, United States v. Emerson 270 F #d 203 (2001), is the only federal court to hold that the "Second Amendment guarantees to individual private citizens a fundamental right to possess and use firearms for any purpose at all, subject only to limited government regulations." Other courts have declined to interpret the Second Amendment as conferring a fundamental right, holding rather that the amendment protects the right to bear arms in context of formation of militias for the common defense. See, Silvera v. Lockyer 312 F3d 1052 (9th cir.20020: U.S. v Miller, 307 U.S. 174 (1939). This court declines to follow the Fifth Circuit and holds that the ordinance does not violate the Second Amendment to the United States Constitution." -- Judge Meyer
So this judge no longer respects the practice of accepting the most recent case decided on this issue and has set his own precedent by ignoring precedent. This is very odd considering the fact that Judge Celeste held up Trinen v. the City and County of Denver and rubbed it my face repeatedly citing Colorado State Supreme Court precedent in this regard. And neither of the two cases that judge Meyer references even suggest that a person does not have the right to keep and bear arms for self-defense, not to mention the fact anyone between the ages of 15 and 45 is in the militia.
Well, it looks like what Paul Grant had told me what would happen in a Denver District court did. A Denver District court judge will never overturn the decision of a Denver County court judge... I will continue on with this case to the State Supreme Court,where I hear they all want to take a look at it, and not because they want to overturn it or allow for a new trial in which I would be allowed to offer the defense of "self-defense" and/or the ability to talk about the state constitution, but rather to apply the same kind of twisted logic that Meyer used in my case. The Colorado State Supreme Court is made up of seven Democrat appointees who all hate gun owners. So I will of course finally end up in the Federal District court where either they will dismiss the case for judicial misconduct or remand it over for a new trial.
[May 31 Update: Douglas Bruce writes in, "In the interests of accuracy, you might tell Duncan Philp that only six members of the supreme court are Democrat appointees (see his last paragraph). Owens has appointed one justice. I think his name is Ben Coates (from the Denver City Attorney's Office or DA's office, I believe)."]