To patent, or not to patent. . .

For most of us on the Western Slope, the topic of patents is pretty dull.

Yet, from the iPhone to e-cigarettes; aspirin to airplanes, all these great inventions we love and loath are the product of inventors, innovators, and entrepreneurs, who, in exchange for sharing the technology with the public, are granted a monopoly (patent) over the invention for a limited number of years, usually twenty.

Patents allow inventors to recoup the cost of research and development and to be able to make a profit from their hard work. Strong patents rights also have a consumer benefit. When competitors are blocked from copying and flooding the market with cheap knock-offs, it means real innovation has to occur in order to avoid infringement. If a copycat is merely tweaking, society’s knowledge base isn’t being expanded.

US Supreme Court hear 90 minutes of arguments in
Oil States v. Greene on Nov. 27, 2017. Matt Soper photo.

On Monday, Nov. 27th, the U.S. Supreme Court heard oral arguments in Oil States Energy v. Greene's Energy, a case which could drastically change whether an inventor opts to patent new technology, or, like the Coca-Cola recipe, keep it as a trade secret.

The legal question is fairly simple: whether patents are property rights, like land or cars, or whether they are public rights, similar to a marriage licence, driver’s licence, or licence to practice medicine.

If patents are held to be property rights, then only a Federal Court has the power to take that property away from its owner. If the Supreme Court decides patents are akin to licences, then the U.S. Patent & Trademark Office (PTO), as an administrative agency, may invalidate the patent at any time after its been issued.

Let’s say you have spent thousands of dollars and hours researching and developing an invention, then several thousands more in attorney and PTO fees, and then, after a cumbersome multi-year process of examination against prior art, the PTO finally issues you a patent. With this patent you build a business and hopefully are successful. At this point in time, you aren’t going to take too kindly to the Patent Trial and Appeals Board within the PTO accepting a petition to review the validity of your patent, especially since the Board doesn’t afford parties the same due process and procedural protections as courts.

The America Invents Act 2011, among other reforms, created the Inter Partes Review (IPR) process for administratively reviewing the validity of issued patents.

Congress created IPR on the presumption that the PTO had issued too many bad or weak patents over the years. Patent trolls take these “bad patents” and assert frivolous lawsuits with the goal of scaring the end user into a settlement. IPR was designed to make challenging bad patents cheaper and faster. However, as of Jan. 2018, it will cost a petitioner $30,500 to initiate an IPR and the patent owner will spend at least $300,000 defending the patent.

Instead of juries determining whether a patent was nonobvious or novel, Congress moved this determining process to the PTO – an executive agency. Such a change also meant patents were no longer treated as property and presumed valid, unless proven otherwise, but instead, IPR treats issued patents as if they are still in the application process.

Currently, roughly 75% of patents subjected to the IPR process are declared invalid. The losing party may appeal to the D.C.-based Court of Appeals for the Federal Circuit (CAFC). However, CAFC has only reversed 10% of the PTO’s IPR decisions.

The Court's liberal justices appeared to voiced support for IPR. Justice Sonia Sotomayor noted during oral arguments that the ability to appeal “saved” the IPR system.

Colorado’s-own Justice Neil Gorsuch questioned the fairness of a system that could allow a government agency to take property after it had been granted.

Conservatives on the Court seemed concerned about the government’s ability to void patents too easily.

The fact that an overwhelming majority of patents subjected to IPR are revoked and CAFC acts as a rubber stamp for the PTO means small businesses and micro inventors are discouraged from pursuing and developing patented technology.

This author believes issued patents are vested rights that should only be taken away through a court of law and not via an administrative board.

A decision is expected in June 2018.

* Matt Soper, a legal scholar, is a CMU alumnus and resident of Delta, Colo. He holds law degrees from the Universities of Edinburgh and New Hampshire. Contact him at matt.soper@alumni.law.unh.edu. 

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Matthew Soper, "To patent, or not to patent." Grand Junction Daily Sentinel (Dec. 3, 2017) p. B5.

Whose prerogative is it anyway? Britain’s referendum to withdraw from EU draws constitutional legal challenges*

1. Introduction

On June 23, 2016 the British people voted to exit the European Union, or simply “Brexit”. The
United Kingdom’s EU Referendum, in which a record 72.2% of the electorate voted, resulted in 48.1% choosing to “remain” and a surprising 51.9% opting to “leave”.

Immediately after the plebiscite’s unexpected outcome, a snowball reaction began that caused turmoil in Britain’s political leadership , a weakened pound-sterling, havoc within financial markets , and challenges to the royal prerogative power . Following the vote, solicitors at Michcon de Reya, acting on behalf of an anonymous group of clients, sought assurances the government would not act without parliament.

2. R (Miller) v Secretary of State for Exiting the EU

In October 2016, the High Court of Justice’s three most senior judges – Lord Thomas of Cwmgiedd, Sir Terence Etherton, and Lord Justice Sale – heard oral arguments in London addressing whether the Crown, acting through the government, is entitled to use royal prerogative powers to trigger Article 50 of the Treaty on European Union (TEU)?  The issue central to this debate is whether the Prime Minister is entitled to use powers of the royal prerogative to commence the two year exiting process, without a vote in Parliament.

This case is the biggest British Constitutional question of the century and pits the royal prerogative powers of the executive branch against the sovereign powers of parliament. The government lost in the high court and is currently appealing to the UK Supreme Court.  Prime Minister Theresa May, through a spokesperson, said, “[T]he government’s planned timetable for triggering Article 50 is unchanged after the court ruling.”

a. Royal Prerogative

The royal prerogative powers were historically exercised by Britain’s monarch acting on his or her own initiative. Today, by constitutional convention, the monarch exercises the prerogative on the advice of the prime minister and the cabinet. It is under the royal prerogative that money is minted, assets allocated for war, pardons granted, and foreign affairs conducted.

b. Parliamentary Sovereignty

In the British Constitutional system, the doctrine of ‘parliamentary sovereignty’  implies the Parliament of Westminster is the supreme legal authority for the entire United Kingdom. Contrast this principle with the United States’ system of government, where a codified constitution is the highest law and the Supreme Court has the power to judicially review acts of Congress and the executive. In the UK, courts cannot generally overrule legislation and no parliament can pass laws binding a future parliament.

2. EU Referendum Act

The legal authority for the EU Referendum came from legislation passed by Parliament in December 2015.  The act said nothing whatsoever about the effect of the vote’s outcome, and the referendum was persuasive and not binding on the government. In practice, the UK government will, most likely, have to respect the vote’s results.


3. Article 50 TEU: Withdrawing from EU

Under Article 50 of the Treaty of European Union (TEU), the framework is laid for withdrawing from the EU. A two-part process is required for invoking Article 50. First, a Member State must “decide” to withdraw, and second, that member state “shall notify” the European Council of their desire to withdraw.

A “decision,” for the purposes of Article 50(1) TEU, must be in accordance with the given member state’s own constitutional requirements. This means a “decision” is made by either the exercise of the prerogative powers (i.e. Prime Minister acting on behalf of the Crown) or through a piece of primary legislation (i.e. Parliament acting in its role as sovereign).

4. Looking forward

The British government announced they planned to “notify” the EU Council of the withdrawal decision by the end of March 2017. The Queen’s 2017 Speech to Parliament will be used to introduce the Great Repeal Bill, which will nullify the European Communities Act 1972 from the statute books. The anticipated date for Brexit to be official would be the end of March 2019, which would be in time for the 2020 General Election.

The government’s timetable could be complicated by the Supreme Court upholding the High Court’s decision, Scotland pressing for a second Independence Referendum, or the Prime Minister asking the Queen to dissolve parliament, triggering a shotgun election.

Even if the Supreme Court upholds the claimant’s position that parliament, as supreme constitutional law, must vote to “decide” to withdraw, more likely than not, Members of Parliament will uphold the people’s determination to leave the EU.

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*ABA Year-in-Review 2016, Section on International Law, Europe Committee (summer 2017)

Amendment 71 pinches our ability to govern ourselves

A lot of folks have told me they are voting for Amendment 71 because it will make the state Constitution harder to change. The reality is Amendment 71 will kill the constitutional initiative system in Colorado, as it creates draconian barriers to direct democracy preventing ordinary Coloradoans from exercising an important constitutional right.

Deciding big constitutional ideas by ballot is a Colorado tradition that goes back over a century. Often times Colorado voters are faced with deciding tough issues that legislators cannot or will not address themselves. Such issues have included: term limits, campaign finance, legalization of marijuana, and limitations on state expenditures (TABOR). Coloradoans have also used initiatives to ban the 1976 Winter Olympics, prohibit underground nuclear explosions, and ban state funded abortion, along with making Colorado a right-to-work state in 1958, legalizing the sale of alcohol in 1932, and creating the power to recall politicians.

Out of all these initiatives, very few are actually approved by the voters. see table

The direct initiative process was not part of the original state constitution in 1876, but became law in the early 1900s when a group of voters got frustrated by the state government being overly influenced by big industries, such as railroads and timber.

In 1912, the first year the right was available in Colorado, voters weighted in on 32 initiatives. Commencing with that first election, some pundits have complained about the process being too easy and a tool used by various voter groups. Lobbyists and special interests enjoy a cozy relationship with representative state government and democracy (via constitutional initiatives) challenges their chokehold on government.

A major shift occurred in 1988 when a unanimous U.S. Supreme Court held, in Meyer v. Grant, that under the political speech doctrine of the 1st Amendment, petition circulators could be paid. Prior to this holding, it was a felony in Colorado to pay signature gatherers. While the rate of initiatives making the ballot has increased, success at the ballot box has decreased since the Meyer decision.

There are two opposing theories of the constitution. One view is that the constitution is an expression of the founders and should rarely, if ever, be touched, leaving tremendous leverage for interpretation by the elected and appointed political actors. The other view treats the constitution as an expression of “We the People” and offers some flexibility and the ability for the people to govern themselves.

Regardless of the underlying theory, the foundational document of government ought to be fairly hard to amend. Is the state worse off because the people have too much power?

Colorado is unique, in that, citizens, through the initiative process may bypass the state legislature and place a statute (called proposition) or state constitution (called amendment) question directly on the ballot. Only 24 states (mostly in the West) allow for the initiative process and of these, only 16 allow citizens to directly amend their constitution.

Amendment 71, ironically, seeks to use the current initiative process to make future initiatives more difficult. The amendment calls for collecting a certain number of signatures from each state senate district (there are 35 in Colorado) just to place future amendments on the ballot. Once on the ballot, the amendment then requires a super majority of 55 percent for the initiative to pass. These restrictions are not in place if an initiative seeks to repeal part of the state constitution.

The complexity of Amendment 71 is a bit tough to swallow. Look at all the trouble a few Republican U.S. Senate candidates had earlier this year attempting to petition onto ballots in seven congressional districts. Imagine spreading that out across 35 senate districts!

If an issue is disliked in one or two districts, those districts would have an effective veto, thus depriving the people the ability to decide if the idea is germane or not.

Whether you love participating in democracy or not, one thing is for sure, Coloradans have, and should continue to enjoy, the ability of “We the People,” to freely exercise direct lawmaking power on proposals to change the state constitution.

If an initiative is bad, Coloradoans have proven they are more than capable of voting down amendments. In fact, only one out of five passed over the past five years.

Looking at some of the more recent constitutional initiatives, none would have passed with the supermajority (55 percent) vote tally as required by the proposed Amendment 71, except one. The Taxpayer Bill of Rights passed in 1992 with only 53.6 percent, but would have failed under the current proposal. Amendment 23 which mandated more funding for k-12 education passed in 2000 with 52.7 percent. It also would have failed. Ironically, Amendment 64, which legalized marijuana in 2012 with 55.3 percent of the vote, would still have become law.

Amendment 71 opens the door for opponents to nix the Taxpayer Bill of Rights (TABOR). The supermajority element does not apply if the initiative seeks to repeal a part of the state constitution. Thus, a progressive billionaire could fund a successful repeal with a vote tally of 50 percent plus one.

The ability of the citizens to directly participate in governing is an effective check on the power of the political class. For the average Coloradan, unduly restricting ballot access, as Amendment 71 does, means a critical democratic tool is only accessible to ultra-big-money interests who can afford the higher costs associated with the complicated signature gathering process.

These are the reasons why I am voting no on Amendment 71: Draconian restrictions on direct democracy, hard to meet signature requirements, and a double-standard for repeal vs. new provisions which would prevent ordinary citizens from an important right. For the good of Colorado vote no on Amendment 71.

Matt Soper, a CMU alumnus and Delta County resident, holds law degrees from University of Edinburgh and the University of New Hampshire. 

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M Soper, "Amendment 71 pinches our ability to govern ourselves" The Daily Sentinel (Grand Junction, Colo.) 16 October 2016 print. B7. online. <http://www.gjsentinel.com/opinion/articles/amendment-71-pinches-our-ability-to-govern-ourselv>; accessed 16 October 2017 

Brexit, International law & the UK Constitution

On June 23, 2016, the “shot heard round the world” was the British people voting to exit the European Union (EU), or simply “Brexit”. The United Kingdom’s (UK) EU Referendum, in which a record 72.2% of the electorate voted, resulted in 48.1% choosing to “remain” and a surprising 51.9% opting to “leave”. Immediately after the referendum’s unexpected outcome, a snowball reaction began that affected the UK’s political landscape and international financial markets.

The political casualties and financial impacts of the Brexit vote have been monumental and historic to say the least. As financial markets opened on Friday, June 24, 2016, the Pound Sterling had its worst trading day since the 1967 devaluation, losing 8% by 18:00 BST. The FTSE 250 index took a 7.2% hit, the worst since the October 1987 crash. The Stoxx Europe 600 index fell by 7%, the steepest one day drop since the Financial Crisis of 2008. British banks also took major hits, as Barclays PLC lost 30% at one point on the 24th and the Royal Bank of Scotland Group closed the trading day down 18%.

The UK Prime Minister, David Cameron, who campaigned to remain in the EU, became the first casualty of the EU Referendum when he announced he would stand-down at the Conservative Party’s meeting in October 2016. The presumptive replacement, the former Mayor of London, Boris Johnson, a Member of Parliament (MP), became the second casualty when fellow Brexit leader, William Gove MP, withdrew his support of Mr. Johnson before launching his own campaign to become the Party’s leader and Mr. Cameron’s replacement. Two weeks after the Brexit vote, a runoff leadership ballot was cast on July 8, 2016, in which Mr. Gove was eliminated. Andrea Leadsom MP, a finalist, pulled-out of the Conservative Party leadership battle on July 11, 2016, leaving a clear path for Home Secretary Theresa May to become Britain’s Prime Minister two-days later.

Amongst the political and financial roller-coaster that ensued, the legal aspects of withdrawing the UK’s membership from the EU are an unchartered and complicated legal web. For starters, the EU Referendum was only advisory to Parliament and not binding on the Government. The UK Constitutional and Public International law legal battles, which are currently underway, are of great interest to lawyers and scholars since they have never been applied in practice.

Under the foundational pillar of the British Constitutional system, the doctrine of “parliamentary sovereignty” implies that the Parliament of Westminster is the supreme legal authority of the United Kingdom of Great Britain and Northern Ireland. Contrast this principle with the United States’ system of government, where a codified constitution is the highest law and the Supreme Court has the power to judicially review acts of Congress and the executive. In the UK, courts cannot generally overrule legislation and no parliament can pass laws binding a future parliament.

Some refer to the British Constitution as “unwritten,” though this is not entirely accurate. Parliament has passed laws which, politically speaking, limit the scope of the doctrine of parliamentary sovereignty. These laws include: the European Community Act 1972, the Acts creating the Scottish Parliament and Welsh Assembly, the Human Rights Act 1998, and the Constitutional Reform Act 2005 that established the UK Supreme Court (on October 1, 2009), separate from the House of Lords, to serve as the nation’s highest appellate court. Other acts have received higher standing in the British constitutional hierarchy too. Fundamentally, the principle of parliamentary sovereignty remains in place as, at least theoretically, a future parliament could repeal any of these acts.

Perhaps the most significant British constitutional development has been the UK’s participation as a Member State of the European Community (now European Union) since January 1, 1973. The effect of joining the EU was that the UK had its “Constitution” subjected, for the first time, to the exercise of powers by and processes of an entirely non-domestic set of institutions.

EU law, the body of law developed by the EU and its institutions, is superior to laws of the whole of Great Britain and Northern Ireland until the UK officially withdraws. When the UK joined the European Community, some scholars and pundits claimed that the UK Parliament had given away aspects of its own sovereignty in exchange for access to the Common Market – a constitutional question that has remained contentious ever since is whether the United Kingdom can withdraw from the EU.

The legal authority for the referendum came from legislation passed by Parliament in December 2015.

University of Cambridge Law Professor Mark Elliott commented that:

“The legislation that provided for a referendum to be held said nothing whatsoever about the effect of the outcome of the referendum, and the result does not place the Government under any legal obligation to secure Brexit.”

While the Government is not legally obligated to trigger an exit from the EU, the political reality is that the electorate is expecting the Cabinet to respect the will of the populace and perform according to the outcome of the referendum.

Prior to the vote, Dr. Alan Renwick of University College London’s (UCL) Constitutional Unit wrote:

“In purely legal terms, a referendum vote to leave places no obligation on the Prime Minister to invoke Article 50 [TEU]. Indeed, it places no obligation on him to do anything: the referendum is, formally, advisory only. In practice, of course, he will have to respect the result.  But does that mean invoking Article 50?”

The legal point that is currently being debated is whether the Prime Minister has the prerogative to act on the vote’s result without Parliament taking any prior action. University of Glasgow’s Regius Professor of Law, James Chalmers, has expressed the view that this was a matter of dispute:

“There may be litigation seeking a declaration that an Act of Parliament is required. My expectation is that there will be an Act of Parliament, because there is no clear gain in proceeding without one.”

Further, British diplomat David Riley, during a June 29, 2016 Brookings Institution event stated that:

“While the legislation is not binding on the Government, nor does the legislation say Parliament has a role in the making of Article 50 [TEU]. It is for the Prime Minister to decide when to invoke Article 50 and the extent to which he or she wishes to involve Parliament.”

On June 29, 2016, an Informal meeting of the 27 heads of state or government (UK excluded) of the EU Member States indicated the European Council is expecting Article 50 TEU (Treaty of Lisbon) to be the legal basis for withdrawal and that official notice to withdraw must come from the UK Government. Since the Prime Minister is the head of the UK Government, it will be for Mr. Cameron’s replacement to send an Article 50 notice to the EC in Brussels.

Under the Treaty of Lisbon 2007 (which consolidated and amended the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU)), which came into force December 2009, there are two possible routes for a Member State to leave the EU. The logical route is to proceed under Article 50 TEU, as it is the treaty provision which governs what happens when a Member State decides to withdraw from the Union; the alternative, unlikely method is under Article 48 TEU, which governs the process for amending of the treaties of the EU.

Article 48 TEU, governs the rules for its revision and amendment. Implementing Brexit via Article 48 TEU would be to revise the Union’s membership list to exclude the United Kingdom as a Member State from the EU treaties. In theory, this option sounds easy, but would be challenging from both a procedural and political aspect, as two layers of veto powers are involved. Under Article 48 TEU, there must first be unanimous agreement among all Member States to trigger it. Thus, each Member State would have a veto power. The second layer of veto power occurs when each national government must ratify, according to the Member State’s method for amending its own national constitution, the revisions to the TEU.

Under Article 50 TEU, once an EU Member State has decided to withdraw from the EU, the Member State “shall notify,” in other words, legally communicate that intent to the European Council, thus triggering a two-year negotiations period. The negotiation period exists to ensure the conclusion of a withdrawal agreement concerning trade provisions, EU treaty arrangements, etc. The EU Council is granted the authority to conclude such withdrawal agreement on behalf of the Union by a qualified majority of Member States (after obtaining consent from the EU Parliament). The UK exit date would be either the date of the withdrawal agreement or two years from the date of, “notification of decision”.

If after two years no agreement is reached, the UK, under Article 50(3) TEU, would simply cease to be an EU Member State without any transitional provisions or trade deals. A negotiated withdrawal is adventitious for achieving transitional and post-exit trade, tax, and citizenship arrangements. The prospect of negotiating an agreement is one of the UK’s, the EU’s, and individual Member States’ strongest bargaining chips in the Article 50 process. However, an automatic withdrawal, two years after commencement of Article 50, does not necessarily mean non-use of the power to negotiate a withdrawal agreement is a horrible outcome. The UK and EU would be free to make treaties post-withdrawal in the same way that the EU can make treaties with other non-Member States.

A “decision,” for the purposes of Article 50(1) TEU, must be in accordance with the given Member State’s own constitutional requirements. This means a “decision” is made either by the exercise of the prerogative powers (i.e. Prime Minister acting on behalf of the Crown) or through a piece of primary legislation (i.e. Parliament acting in its sovereign role). The EU Referendum vote was merely advisory, and to comply with the “constitutional” element in Article 50, either the prerogative power or the parliamentary powers, depending on the point of view, must be used to formally “notify” the European Council in order to trigger Article 50(3) TEU’s two year clock.

Assuming a “decision,” for Article 50 TEU purposes is to be made by Parliament, a few scenarios might playout:  

(a) Scottish National Party (SNP), Labour, and a few Conservatives could lead a revolt and refuse to take action; or

(b) The same could vote down any measure upholding the results of the EU Referendum.

In Addition, Parliament might also pass a bill which would restrict the exercise of the prerogative power by the Prime Minister, thus preventing him or her from acting on the results of the EU Referendum. If the next Prime Minister, who will take office in October 2016, decides that both the ‘decision to withdraw’ and ‘notice to the European Council of the decision’ are prerogative powers, then there may occur a scenario in which ‘statute beats prerogative’.

Alternatively, UK Constitutional Law Association fellows Nick Barber, Tom Hickman, and Jeff King argue any prerogative power that would otherwise be available to the Government in order to make an Article 50 TEU withdrawal decision is displaced by the European Communities Act of 1972. The argument is based on the holding in the Fire Brigades Union case, in which Lord Browne-Wilkinson said, “‘It would be most surprising if prerogative powers could be validly exercised by the Executive so as to frustrate the will of Parliament expressed in the statute.” The difficulty of challenging the prerogative in this way is that the EC Act of 1972 does not confer any particular rights on anyone. The Act does, however, show Parliament’s will to give effect to the UK’s obligations under EU treaty law within the country. Since foreign relations are usually perceived as a part of the prerogative powers, triggering Article 50 TEU may be both the exercise of a common prerogative authority through the usage of a treaty provision and going against the implied will of Parliament through nullifying its 1972 Act. This question will further be debated as the Michcon de Reya law firm seeks a definitive answer.

On July 3, 2016, solicitors at Michcon de Reya, acting on behalf of an anonymous group of clients, contacted government lawyers to seek assurances that Article 50 will not be triggered without an act of Parliament. The solicitors at the law firm, who are not advocates, retained the services of renowned constitutional advocates who were bestowed the distinguished title of Queen’s Counsel (QC), The Lord David Pannick QC of Blackstone Chambers and Rhodri Thompson QC of Matrix Chambers, as barristers who have standing to appear in court for Michcon de Reya’s clients. The Lord Pannick QC sits on the Constitution Committee in the UK House of Lords.

After the Brexit vote, the Petitions Committee, which is made up of 11 backbench Members of Parliament, received an e-petition with over  4 million signatures asking the Government for a 2nd EU Referendum. Under a convention of Parliament, any e-petition with over 100,000 signatures will be debated in the House of Commons. This petition is scheduled for debate on September 5, 2016. However, the Government responded by saying:

“The Prime Minister and Government have been clear that this was a once in a generation vote and, as the Prime Minister has said, the decision must be respected. We must now prepare for the process to exit the EU and the Government is committed to ensuring the best possible outcome for the British people in the negotiations.”

Even though the majority of the British electorate may have voted in favor of exiting from the EU, the UK will continue to remain a Member State until key constitutional questions are resolved in order to begin the withdrawal process. The first order of business is deciding if a decision has been made which meets the UK’s Constitutional process. The New Government has intimated it will honor the outcome of the Referendum and withdraw from the Union using Article 50 TEU. The New Prime Minister, Ms. May, has indicated how the withdrawal process should take place, but this is only one opinion, and more importantly, just the beginning of the process. It is quite clear, that even if the New Government were to not follow the advice of the electorate, the financial and political damage is already irrecoverable. The world has already reacted to Brexit, as though the vote’s outcome were contractually binding. The snowball effect in terms of political shifting and financial and business turbulence will continue for the next several years. The legal issues of how national constitutional law interacts with international treaty law will test unprecedented waters. The legal debate on how to leave, and then, how to unravel a union that has existed since 1973, will be a daunting challenge to say the least.  It is speculated Brexit will prompt changes in formal rules and conventions within the EU and will serve as a case study to other nations contemplating what would happen if they were to follow the UK. The legal path of leaving the EU is a watershed moment in the history of UK Constitutional and Public International law.

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*Special thank you to Emory University J.D. (Class of 2017) candidate Anton Stewart, BA, LL.B. for assistance in various aspects on this article.

Soper, Matthew. "Brexit, International law &; the UK Constitution." ABA Section of International law; Europe Update Issue 13 (July 2016) (Brexit Special Edition) Web. 2016.

Mandatory snow-tire legislation needs re-treading

As Coloradoans there is nothing more frustrating than heading over I-70 in the winter and hearing the words “snow storm” and “Interstate closure” in the same sentence.

Colorado has a policy of keeping I-70 open, even during the most treacherous of winter storms. The reason is because of economic injury due to freight delays. According to economic assessment reports from the Department of Transportation and the Motor Carriers Association, disruption of national freight transportation systems stemming from closures of I-70 in Colorado alone is nearly $100 million per year.

I-70 near Loveland Pass / Eisenhower tunnel
Photo credit: thedenverchannel.com 2015

The “chain law” for commercial carriers traversing Colorado is very simple. At all times, from September until May, commercial carriers must carry sufficient snow chains or traction devices or face a $50 penalty.

When the Colorado Department of Transportation declares the chain law in effect, all vehicles with a gross combined weight 26,001 lbs or more are required to have 4 or more drive wheels covered with an appropriate traction device. Vehicles with less than 4 drive wheels must have all drive wheels covered with an appropriate traction device.

The penalty for non-compliance is $500 when the chain law is in effect. If the vehicle causes blockage of a travelable portion of the roadway, then a $1,000 enhanced fine is assessed on the commercial driver.

Colorado’s current non-commercial vehicle snow-tire law is divided into two categories: (1) chains or adequate snow-tires and (2) chains only. The Colorado Department of Transportation has the duty of invoking the “chain law,” which, depending on road conditions, maybe for commercial vehicles only, or all vehicles, including cars, trucks, and SUVs.

Currently, HB-1173, sponsored by Reps. Bob Rankin, R-Carbondale, and Diane Mitsch Bush, D-Steamboat Springs, which passed the Senate Transportation Committee unanimously last week, would require all motor vehicles traveling I-70 from Dotsero to Morrison to have sufficient traction in the form of a four-wheel or all-wheel drive vehicle with regular tires with at least one-eighth of an inch of tread depth, snow-tires with a tread depth of one-eighth of an inch, or carry tire-chains or adequate traction devices.

Drivers found in non-compliance would face a $100 fine. An enhanced penalty of $500 would be added if the non-commercial vehicle causes closure of any portion of the I-70.

The non-commercial version of the commercial “chain law” was designed to mirror the commercial version; however the Rankin-Mitsch Bush version doubles the fee for non-compliance and proceeds to solve no problems.

Under the proposed legislation, the most significant change would be to require non-commercial vehicles to have snow-tires or chains at all times from November 1 to May 15, rather than just when the “chain law” has been declared.

The bill is “nanny government” at its finest and presumes that citizens lack necessary common sense to function in society. Colorado already has a non-commercial snow tire law which is clear and goes into effect when CDOT deems the roads particularly hazardous.

Colo Reps Bob Rankin & Yuelin Willett visit on House floor.

The Rankin-Mitsch Bush bill is a “boy scout” measure of mandating being prepared. While the bill’s authors are at it, they should mandate that Coloradoan’s know how to put on chains, perform CPR, and to always carry a medical kit, blanket, and avalanche shovel just in case accidents happen.

Moving beyond the argument that government is trying to mandate common sense, the Colorado State Patrol would have standing probably cause to search any vehicle for compliance. Fourth Amendment gurus out there should be shivering at the unprecedented power being granted to law enforcement.

It may be easy to determine speeding from a radar gun, but how hard is it to tell if a sedan is carrying chains on a beautiful, sunny, dry road day in January?

Unlike the commercial counterpart or current law concerning non-commercial vehicles, the proposed legislation would allow the state patrol to pick and choose when to enforce the law and on which vehicles. This means even when snow-flakes aren’t flying the state patrol could use this legislation to stop a vehicle in pursuit of other offences or mere revenue generation.

The Rankin-Mitsch Bush bill undermines due process, as cars are categorically not typically equipped with four-wheel or all-wheel drive; thus, creating a strong presumption that these cars may be in violation of traversing I-70 without chains, or at least one-eighth tread, regardless of the chain law being in effect.

This author conducted a analysis of all reported closures of I-70 from February 20 to March 30, 2015 and found of the six times the interstate was closed due to automobile accidents at least four were as a result of a truck or SUV. A conclusion here is that certain drivers, even with presumed adequate tires, operate their vehicle in such a way that reflects a belief of immunity from the effects of icy roads.

Before the Senate sends this bill to the Governor, perhaps a little more tread could be added to eliminate the high risk of abuse and the discriminatory aspects of this legislation.

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M Soper, "Mandatory Snowtire legislation needs re-treading"The Daily Sentinel (Grand Junction, Colo.) 5 April 2015 pg B5 http://www.gjsentinel.com/opinion/articles/mandatory-snowtire-legislation-needs-retreading# (accessed 5 April 2015)

Tyranny of the majority: Is secession a justified response?

From Colorado counties proposing secession to Crimea voting to break-away from Ukraine; and from Venice adopting unofficial independence status to Scotland wanting to dissolve the 307 year-old marriage with England – Who’d have thought we are living in an age of social contract renewal?

Over the past four months – majorities in 5 out of 11 counties voted to become the 51st US State; an

unbelievable 96% of Crimeans voted to join Russia; 89% of Venetians voted to create independent city-state within Italy; and in September Scottish voters will take to the polls to decide whether to become a free and independent country.

Opponents of these secessionist movements have quickly taken to the bully pulpit to point out the unconstitutionality of these votes. What if it’s illegal to vote for smaller regions, such as a county, to secede from lager entities, such as states or nations? Does a law make separatists feelings “go-away”?

Secessionist ideas do not begin at the ballot box or in a parliamentary chamber. The ideas of dissolving the bands that tie one region to another begin with disaccord and minority dissatisfaction – tyranny of the majority. Where one political party dominates and punishes the opposition or one geo-cultural group forces its views onto another.

Under the US Constitution, no mention is made of an acceptable dissolution of the union. The Civil War and the Supreme Court’s decision in Texas v. White (1869) arguably established the Constitution ordained a perpetual and indissoluble union.

In 1776, when the founders declared independence from the United Kingdom, that act was in violation of the British Constitution’s supremacy of parliament. If there had been any doubt of Parliament’s authority, The Declaratory Act of 1766, which asserted the right of Parliament to legislate for the colonies "in all cases whatsoever," would have settled the question.

To consider our founders revolutionaries seems abhorrent. The situation was an impasse, Parliament told the colonists to ‘go pound sand’ and the colonists responded by crafting a legal justification based on social contract theory, tyranny of the majority, and natural law.

Colorado counties which proposed secession; orange is where measure passed. 

As for the Colorado counties wanting to follow the West Virginia Model, that dream ended when the 69^th Colorado General Assembly adjourned on May 7^th.

Under Article 4 §3 of the US Constitution, no new state can be created from within an existing state without the consent of both the state’s general assembly and Congress.

Without the Colorado legislature taking action, our state will remain intact. Remaining united is not to say the dissatisfaction with the Democrats who control the governor’s office and legislature has gone away.

Similar to Colorado, the Crimea and Venice referendums were a protest to majority tyrannizing the minority. Unlike Colorado, Crimea’s vote was unconstitutional. Venice’s ballot was unofficial.

The Ukrainian Constitution specifically states in Article 73: “Alterations to the territory of Ukraine shall be resolved exclusively by the All-Ukrainian referendum.”

Many have argued the Crimea referendum was illegal according to Public International Law.

Firstly, under the Montevideo Convention on the Rights and Duties of States (1933), four requires must be satisfied to be considered an independent nation: permanent population, a defined territory, a government, and the capacity to enter into diplomatic relations.

Secondly, a country must be recognised by another country.

Crimea, a peninsula region in the Black Sea. 

The Crimean referendum asked voters whether they wanted to join Russia as a federal subject or restore the 1992 Crimean Constitution which granted greater authority to the regional parliament. With 83% voter turn-out, 96% voted in-favor of joining Russia. This act was certainly illegal under the Ukrainian Constitution, but as for International law, the jury is still out.

The Venice ballot asked voter whether they wanted to secede from Italy and become and independent city-state. With 65% of the region voting, a whopping 89% or 2.1 million people voted in-favor of breaking away from Rome! The Italian Government had no fear of Venice actually breaking away, as the referendum had been unofficial.

Much like rural Colorado having difficult with Denver listening; Crimea has a Kiev problem; Venice a Rome problem; and Scotland, an English problem.

On September 18^th, Scots will take to the polls to decide their fate. Legally, Scotland has the same problem the American Colonists had with the British Constitution, namely the supremacy of parliament.

The UK Parliament in London has the ability to enact or resend any legislation, including the grant of independence. The Edinburgh Agreement, merely a gentleman’s handshake, is where the UK Parliament has pre-agreed to acquiesce to the outcome of the referendum.

While the votes remain to be cast, one thing is certain, laws banning secession don’t make secessionist ideas go away. Revolution and civil war should be avoided. Elections, whether official or unofficial; lawful or unlawful should be a wake-up call to majority-leaders who are unwilling to respect the ideologies, customs, or traditions of minority constituencies.

Colorado man at center of important lawsuit on libel verus free speech

US Supreme Court on the day of oral arguments

We all remember the fable of the boy who cried wolf. The moral Aesop illustrates is that liars are rewarded, until the fabrication becomes reality.

This week the U.S. Supreme Court held that airlines are immune from defamation liability when making reports to the Transportation

Security Administration, even when those reports are known to be false or are so reckless as to be a willful disregard to the truth.

In 2004, Coloradan William Hoeper was employed by Air Wisconsin Airlines. The airline was changing its entire fleet of planes and was requiring pilots to become certified on the new aircraft. Hoeper was nearing retirement age and had failed three previous certification exams.

During the fourth attempt in Northern Virginia, Air Wisconsin told Hoeper if he failed again, he’d be terminated. Hoeper became convinced that the airline was sabotaging his exam. A Colorado jury later agreed this was indeed the case.

Hoeper exchanged some expletives and other choice words with his supervisor, Patrick Doyle, before announcing that he was quitting and calling the pilots’ union. Doyle immediately booked Hoeper on the first flight back to Denver.

While Hoeper was boarding a regular commercial plane bound for Colorado, Doyle was calling the TSA. Doyle told the TSA that an “unstable pilot” was boarding a plane and that he was “concerned” because the pilot was terminated earlier and might be “armed” and dangerous. The Colorado Supreme Court later held these statements to have been “made with reckless disregard of their truth or falsity.” Doyle knew Hoeper was a deputized federal flight deck officer, which entitles him to carry a firearm when flying.

As in Aesop’s fable, when wolf is cried, all the villagers go running to save the boy from the pack of vicious animals. Here, the TSA sent snowplows and fire trucks to stop the Boeing 757 from proceeding down the tarmac. A SWAT team came bursting into the cabin. Meanwhile, Hoeper was looking for the “terrorist” on his flight, not knowing the special agents were after him.After a lengthy interrogation, no charges were filed and Hoeper was finally re-united with his family in Colorado. Hoeper immediately filed a defamation lawsuit against Air Wisconsin Airlines, alleging vicarious liability for the actions of its agent, Patrick Doyle.

Defamation is a statement that adversely affects a person’s reputation. Reputation has an economic value upon which individuals in our society peddle goods and services. Defamation is also about damages to a person’s good name and credibility. If someone damages your reputation, then they have damaged your economic value.

my ticket to the oral arguments

A Colorado jury awarded Hoeper $1.2 million in damages ($849,625 in presumed damages, $350,000 in punitive damages and $222,123.09 in costs).

Air Wisconsin appealed to the Court of Appeals, alleging that it was immune from liability pursuant to the Aviation and Transportation Security Act.

The ATSA provides that an air carrier that voluntarily discloses suspicious activity “shall not be civilly liable.”

The Colorado Supreme Court annually chooses a case to hear in front of Colorado high school students; in 2012, Hoeper v. Air Wisconsin Airlines was the case. The court upheld the jury’s verdict and the appeals court ruling.

The U.S. Supreme Court granted a writ of certiorari to Air Wisconsin, and oral arguments were heard on a frigid and snowy day in Washington, D.C. (I was fortunate to attend the proceedings.)

All odds were against Hoeper. The Obama administration sided with the airlines and feared that liability for defamatory statements would discourage airlines and their employees from reporting suspicious activity to the TSA. Even The New York Times and The Washington Post filed amicus briefs with the Court, siding with the petitioner, as they didn’t want to see penalties for “First Amendment speech.”

Justice Sonia Sotomayor delivered the opinion of the court, which reversed the finding of the Colorado Supreme Court, by granting immunity to airlines who make reports to the TSA. Sotomayor said, “All of us from time to time use words that, on reflection, we might modify ... If such slips of the tongue could give rise to major financial liability, no airline would contact the TSA.”

Justices Antonin Scalia, Clarence Thomas and Elena Kagan were the dissenters. It is odd to see two of the most conservative justices joining one of the most liberal. They argued (correctly, I believe) that a jury, made up of regular Americans, could make the determination of whether Hoeper was a threat to public security or if Doyle made the report based on a vindictive and reckless disregard for the truth or falsity of the information being reported.

Lies should not be rewarded. As in the tale of the boy who cried wolf, this week’s ruling encourages abuse and recklessness.
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M Soper (Op Ed), "Colorado man at center of important lawsuit on libel verus free speech." The Daily Sentinel. Grand Junction, Colo. 2 Feb 2014, B4 <http://www.gjsentinel.com/opinion/articles/colorado-man-at-center-of--important8232-lawsuit-o> accessed 9 Feb 2014.

M Soper (Op Ed), "Case of Colorado’s defamed pilot shows no regard for truth." The Western Slope Watchdog. Montrose, Colo. 2 Feb 2014, Opinion Section. <http://westernslopewatchdog.com/2014/02/guest-editorial-case-of-colorados-defamed-pilot-shows-no-regard-for-truth/> accessed 9 Feb 2014.

Legal & political aspects of military intervention in Syria

Should the US attack Syria? Has Assad used chemical weapons against his own people? Would US intervention violate public International law?

Regardless of the answers to these questions, an upcoming vote on Capitol Hill illustrates how foreign affairs are as much about domestic politics, as it is about International relations.

Syrian President Bashar  al-Assad and his wife, Amsa.

President Obama has played a brilliant game of chess against the Republicans. How you might ask?

Prudently, the President is wise in asking for a Congressional vote. It is a tough decision and vesting everyone in the decision process is smart.

Politically, a Congressional vote on Syria puts the Republicans on record prior to the 2014 mid-term

elections, which makes such a vote all the more sensitive and strategic.

The Constitution does not require the President to ask Congress’ permission to engage the armed forces in hostilities. War making powers are shared jointly between the Executive and Congress.

Is military action against Syria legal under public International law?

Under the UN Charter, states may only use force in two instances: self-defence or when the Security Council has authorized force to maintain or restore international peace and security.

Here, Syria has not attacked American citizens, assets, or allies; nor has the Security Council authorized the use of force. The Syrian government is merely engaging in an internal conflict to suppress rebels.

Additionally, Customary International law would allow Syrian government officials, such as Bashar al-Assad to be prosecuted for crimes against humanity and the use of chemical weapons, even though Syria has not become a party to the Genocide, Torture, or Ban on Chemical Weapons conventions.

Regardless of International conventions and customs, US law recognizes the ratified treaties at taking the same status as federal law. This means, the UN Charter, as a treaty, is tantamount to federal law. Congress is free to override federal law by adopting resolutions. So under an American law analysis, Congress can do whatever the hell it wants, so long as that action doesn’t violate the Constitution.

The notion that Congress must pre-approve military action is erroneous. Article I, Section 8 of the Constitution grants Congress a non-specific power to ‘declare war.’ However, of the 130 plus times military action has been taken abroad, Congress has only declared war 5 times.

US President Barak Obama with Speaker John Boehner (left).

Under the Presidential War Powers Act, President Obama, as commander-in-chief, may introduce the military to hostilities without Congressional notice for a period of 60 days. The Act goes on to mention that hostilities must comply with: (i) declaration of war, (ii) statutory authority, or (iii) national emergency. Additional time for hostilities is granted upon Congressional approval.

Here, President Obama would be allowed to introduce the military into foreign involvement without Congressional approval.

Why ask Congress for permission if President Obama doesn't legally need it?

Remember the mid-term elections are fast approaching. A Congressional vote on Syria puts the Republicans on record prior to the 2014 elections, which makes this vote highly political. This is why Speaker John Boehner, a supporter of Syrian intervention, isn't making this a partisan vote – he needs to ensure Republicans are re-elected.

Politically, the issue of Syria is dividing the Republican Party into the Paul Republicans (non-interventionists) and the McCain Republicans (the war-hawks).

Here in Western Colorado, Congressman Scott Tipton announced he would be voting ‘no’ during a town hall meeting recently in Durango.

Both of Colorado’s US Senators, Mark Udall and Michael Bennet, are vacillating over how to vote regarding Syrian intervention to punish the use of chemical weapons.

Meanwhile, on the International stage (remember, I said foreign affairs was only partly about domestic politics), Russian President Vladimir Putin has asked the US to present evidence before the UN Security Council that the Assad government was responsible for the chemical weapons attack.

If the US proceeds without a UN Security Council resolution, then legally this action would be pre-emptive self-defence or a unilateral enforcement an International custom (the ban on chemical weapons). Both concepts would dramatically expand the Bush precedent.

Targeted Syrian assets.

Recently, in Stockholm, President Obama said, “My credibility isn't on the line, the whole international

community's credibility is on the line, Congress' credibility is on the line.”

Actually, Mr President, your credibility is on the line, as you’re the one proclaimed Syria used chemical weapons and that the US should take punitive action.

While the White House has gotten the entire International community in a frenzy, one thing is for certain, if the US strikes Syria, no longer will President Obama be able to blame the results on the George Bush Administration. 

Limits on the right to marry?

New England Patriot's Tight End Aaron Hernandez and fiancé Shayanna Jenkins

In a year filled with debates about marriage and the Constitution, should Aaron Hernandez (pro football player charged with murdering Odin Lloyd) be allowed to marry his long-time girlfriend and alleged fiancée, Shayanna Jenkins?

Under MA rules of evidence, 'spouse shall not be compelled to testify in the trial of an indictment, complaint, or other criminal proceeding brought against the other spouse.'

If Hernandez is allowed to marry Jenkins it could bar the prosecution from compelling Jenkins to testify against Hernandez. Authorities from Bristol County say they will not allow nuptials to be exchanged so long as Hernandez is being held on remand.

Is this bar to marriage legal under a Constitutional right to marry theory? Could Hernandez pursue an interlocutory appeal on the basis of the right to marry?

Hickenlooper signs Syrian-style-gun-control measures

With Governor Hickenlooper's signature to HB 1224 and HB 1229 it looks like indeed the pen is mightier
than the sword/gun. The government now has the carte blanche ability to restrict any firearm which uses a magazine (this is due in part to the hastily drafted language in the bill). This is an assault on all of Colorado, our state and national constitutions, and natural law. Our peaceful protests in halls of power have been ignored. It is time the people stand up to the grievous and al-Assad-like assaults on our liberties!

As in the pre-Arab-Spring-era, the unchecked power of the Syrian Ba’ath Party also stripped their citizens of firearms. Syrian Legislative Decree No. 51 of 23 September 2001 banned private ownership of semi-automatic military looking rifles, revoking rifle permits, and only allowing permits for single shot-pistols and single-shot hunting rifles of low-calibre. Currently the people of Syria are in a bloody civil war in which the government of Bashar al-Assad is trying to quell resistance to the majority elected, single party rule.

In the Democratic controlled legislature, Colorado – like Syria – passed universal background checks, which require background checks of the possessor of a firearm when the owner is away for more than 72 hours. Along with blurring the lines of possession and ownership, the legislature completely ignored the vast majority of Colorado’s sheriffs, including Delta County’s own Fred McKee, who testified in Denver against HB 1229. With the new legislation in Colorado, as in Syria, private sales of firearms will be essentially prohibited.

The Democrats won’t achieve universal registration, universal licencing, and third-party liability this legislative session, but given another future-mass-shooting somewhere in the nation, these Syrian policies can be expected if freedom minded legislators and governors are not elected.

No one party should ever control all three branches of government. Yet when the Democrats rolled into power they began catering to the whims of the masses which has resulted in short-sighted, rights-restricting, and oppressive policies. It is time to petition Governor Hickenlooper for a redress of these grievances and upon denial demonstrate that the people of rural Colorado will openly and respectfully defy these anti-constitutional gun control measures.
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*M Soper, LTE / OpEd, Mountain Valley News. 27 March 2013  http://www.mountainvalleynews.net/index.php/home/3-opinion/3910-letters-to-the-editor-32713.html accessed 27 March 2013

Safety: The fallacy of 'anti-guns proponents'

The post-Aurora shooting has seen Americans re-engage the debate over small-fire arm regulation. On 25 July 2012, President Barak Obama called for “leaving no stone unturned” in seeking measures to reduce violence in America. Mr Obama’s speech to the National Urban League in New Orleans featured a shift in the president’s policy position that gun laws in the US are sufficient.

Mr Obama said, “A lot of gun owners would agree that AK-47s belong in the hands of soldiers, not in the hands of criminals […] But I also believe that the majority of gun owners would agree that we should do everything possible to prevent criminals and fugitives from purchasing weapons, that we should check someone’s criminal record before they can [purchase a gun], that a mentally unbalanced individual should not be able to get his hands on a gun so easily. These steps shouldn’t be controversial, they should be common sense.”

Around 0038Z on 20 July 2012, at the Century-16 Multiplex Cinema in Aurora, Colorado, suspect James Eagan Holmes walks into cinema No. 9 wearing Kevlar body-armour and a gas mask, with a black costume to resemble comic superhero Batman’s arch nemesis. The film had been playing for half an hour before the suspect began shooting into crowd, after having thrown a smoke bomb into the cinema. Within 90 seconds police were on the scene. The suspect had killed 12 and injured 58 people, before being apprehended by police in the car park. None of the people killed were members of a minority group. Leaked reports show the accused was being treated for psychiatric care after having dropped out of the University of Colorado Medical School. The suspect had no previous medical condition or any confrontations with law enforcement, including moving-traffic violations.

 shooting a Thompson M1928A1

Contrary to the President’s thesis, the accused in the Aurora shooting had no criminal record, didn’t use an AK-47, and the leaked counselling reports indicate he was not “mentally unbalanced”. Seeing a psychologist or councillor is not an admittance of being “mentally unbalanced” and using such rhetorical comparisons is prejudicial and sends a negative message to those individuals in society who really do need professional help.

According to a Harvard Law research paper, nations with the highest small-arms regulations are not always the safest or less violent. The most-pro regulation nations include: Colombia, Somalia, Japan and Sweden.

The day before Mr Obama’s speech, a court in Sweden convicted a man on two counts of murder and four attempted counts for a shooting which took place in Malmo. The accused ignored the prohibition on firearms and had been linked to a dozen street shootings over the past two years. Somalia has a major problem with gun violence, even though the official government position is to ban firearms. Some scholars have implicitly suggested a low fire arm ownership rate gave rise to al Shabaab and piracy, which in-turn gave rise to high levels of illegal gun ownership. Colombia is a nation well known for gun violence, however much of this comes from drug cartels who target unarmed civilians. The UNODC reports Colombian illegal small-arms ownership is at an all-time high, which many citizens opting for a means to protection. Criminals seem to have a propensity to ignore the rule of law. By definition, a person is a criminal if they disobey the law established by the recognized government authority. Even Japan has its share of gun crime, most will recall the assassination of the mayor of Nagasaki in 2007, a pensioner going on a shooting spree in 2009, and organized gangs who annually shot members of the opposing mafia.

There is no research which shows taking away guns makes a society safer, less violent, or secure. People intent on doing harm, will do harm. Look at 9-11, why didn't we ban air planes, or make private ownership illegal? I don't recall a single gun being used on that day, yet nearly 3,000 people lost their lives.

The UK, which has pretty much banned guns (unless you own land and a title) still has gun violence, albeit not as high per capita as the US, but knife and bombing violence are way higher per capita in the UK. Stopping all bad people in society takes the rest of society to be vigilant, sense when folks need help, or being prepared to fire back when evil attempts to prevail - that includes both criminals and the government.

Research conducted by Oxford University reveals correlations between the type of homicide and the socioeconomic and subcultural status of the victim and offender. More research needs to be conducted into this area, as it is a highly charged hypothesis to suggest a person who feels poor, socially rejected, or outside their culture is more likely to commit an offence of the person resulting in a fatality. Mass murders in OEDC states see offenders who isolate themselves from their society.

Nations with strict firearm regulations don’t necessarily have lower homicide rates. Switzerland, which has 
one of the world’s highest firearm ownership rates (2/3 of every home has at least one firearm), also has one of the lowest overall homicide ratios at 1 > per 100,000. The US, which has a similar gun ownership rate as Switzerland, has a much higher overall homicide rate of 4.5 per 100,000. Larger nations tend to have different social problems, but also Switzerland requires a large percentage of its male population to have spent a year in the military, in addition to this, much of the nation is fairly rural and research has shown murder rates are much lower in rural environments. (See UNODC homicide statistics)

A paper looking at the urban v rural divide for gun violence in and around Washington, D.C. shows that nearly 70% of all gun deaths in both areas were suicides, which are illegal in the US. It should be noted, rural suicides by guns were 10% higher in the countryside, suggesting an opportunity for medical professionals and educators to develop mechanisms for intervening. While the likelihood of being murdered in an urban area of Washington, D.C. was 50% greater, when compared rural areas. When examining other parts of the US, the gap between urban murders and rural murders was well over two-fold. Accidental shootings with a rifle or shotgun were greater (3% of total) in rural areas, accidental shootings with handguns where significantly higher in urban centres. Homicides are greater when the offender was drinking or doing drugs, vulnerable, depressed, and subject to violence or mental abuse.

Recently, Elliot Fladen with the Colorado Springs Gazette made the comparison with the war on drugs resembling the war on guns. His conclusion is that just as anti-drug laws didn’t prevent drug dealers, users, or abusers; gun control laws won’t stop black market dealers, offenders, or individual’s intent on doing harm.

Many conclusions may be reached from noting statistics and arguments from the post-Aurora shooting debate, but one point is certain – more gun regulations and laws is not the answer to America’s struggle to interdict violent criminals.