LEGAL ANALYSIS THE CONSTITUTIONAL CRISIS CREATED BY SB25-003:

CIRCUMVENTION OF FOURTH AMENDMENT PROTECTIONS THROUGH STRATEGIC AGENCY SELECTION

Prepared by Colorado Federal Firearms Licensee Association
March 10, 2025

EXECUTIVE SUMMARY

Senate Bill 25-003 represents a deliberate attempt to circumvent constitutional protections by strategically positioning Colorado Parks and Wildlife (CPW) as the regulatory authority for specified semi-automatic firearms. This analysis demonstrates how this structure creates an end-run around Fourth Amendment protections by leveraging CPW's administrative search authority—effectively subjecting constitutional rights to warrantless inspections. The bill's design appears calculated to exploit a legal loophole, creating a system where firearms owners could face warrantless searches that would be plainly unconstitutional if conducted by traditional law enforcement.

I. THE ADMINISTRATIVE SEARCH LOOPHOLE

A. CPW's Extraordinary Search Powers

Colorado Parks and Wildlife officers possess exceptional authority to conduct warrantless searches—powers that exceed those of traditional law enforcement. Under C.R.S. § 33-6-111, wildlife officers may:

• Stop and inspect any person engaged in hunting or fishing activities

• Demand production of licenses without probable cause

• Inspect firearms, equipment, and personal effects

• Enter private land to investigate wildlife violations

• Conduct administrative searches without judicial approval

Unlike police officers who require warrants based on probable cause, CPW officers operate under the far more permissive "administrative search" doctrine.

B. The Constitutional Foundation: "Highly Regulated Activity" Doctrine

These extraordinary powers rest on the legal fiction that hunting and fishing are "privileges" rather than rights. The Supreme Court has carved out a narrow exception to Fourth Amendment protections for "highly regulated activities" in cases such as Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970) and United States v. Biswell, 406 U.S. 311 (1972).

For such searches to be constitutional, they must meet strict criteria:

1. The regulatory scheme must serve a substantial government interest

2. Warrantless inspections must be necessary for regulation

3. The inspection program must provide adequate safeguards

Critically, this doctrine has never been extended to the exercise of fundamental constitutional rights. Its application has been explicitly limited to privileges and heavily regulated commercial enterprises.

II. THE DELIBERATE CONSTITUTIONAL EVASION IN SB25-003

A. Strategic Agency Selection: No Accident

SB25-003 deliberately places regulatory authority with CPW rather than agencies that traditionally regulate firearms (Department of Revenue, Colorado Bureau of Investigation). This strategic placement cannot be dismissed as coincidental:

1. The bill creates an entirely new database within CPW (§ 33-9-115)

2. It establishes complex verification systems administered by CPW staff

3. It links the exercise of Second Amendment rights to an agency with warrantless search powers

The bill offers no legitimate rationale for selecting an agency whose primary mission involves wildlife management rather than law enforcement or public safety.

B. Creation of a De Facto Registry

The legislation establishes what functions as a firearms registry by:

1. Creating the "Firearms Training and Safety Course Cash Fund" within CPW

2. Requiring CPW to "develop and operate a system of records of persons" who have completed required training (§ 33-9-115(2)(a))

3. Establishing an electronic verification system connecting individuals to specific firearms purchases

This registry—housed within an agency with extraordinary search powers—represents a significant constitutional concern.

C. Deliberate Omission of Protective Limitations

The bill contains no language prohibiting CPW from using its administrative search authority in connection with this new regulatory scheme. This silence is deafening and appears calculated to:

1. Preserve maximum enforcement flexibility

2. Avoid explicit constitutional red flags

3. Create deliberate ambiguity about the scope of CPW's authority

This omission allows CPW to potentially leverage its existing search powers for an entirely new purpose—regulating constitutional rights.

III. THE FOURTH AMENDMENT VIOLATION FRAMEWORK

A. Constitutional Collision Course

SB25-003 creates a direct collision between:

1. Administrative searches designed for privileges (hunting/fishing)

2. Constitutional rights protected by the Second Amendment

3. Fourth Amendment protections against unreasonable searches

The Supreme Court has never permitted administrative searches in the context of constitutionally protected rights. In Delaware v. Prouse, 440 U.S. 648 (1979), the Court explicitly rejected suspicionless stops even in the context of the heavily regulated activity of driving.

B. The Constitutional Bait-and-Switch

The bill effects a constitutional bait-and-switch by:

1. Creating a system where citizens must register with CPW to exercise Second Amendment rights

2. Placing this registry within an agency with extraordinary search powers

3. Failing to prohibit the use of these powers in connection with firearms regulation

This structure circumvents traditional Fourth Amendment protections through agency selection rather than direct statutory authorization.

C. The Slippery Slope of Administrative Rights Regulation

If permitted, this framework creates a dangerous precedent where:

1. Constitutional rights could be redefined as "regulated activities"

2. Warrantless searches could be extended to other constitutional rights

3. Administrative agencies could gain extraordinary powers over constitutionally protected activities

No clear limiting principle exists once this precedent is established.

IV. PRACTICAL SCENARIOS DEMONSTRATING CONSTITUTIONAL CONCERNS

Consider these potential scenarios created by SB25-003:

1. The Public Land Scenario: A CPW officer encounters a person with a firearm on public land. Under current law, the officer can demand hunting licenses and inspect firearms only if the person appears to be hunting. Under SB25-003's framework, could the officer demand proof of completed firearms training for any firearm that appears to be a "specified semiautomatic firearm" regardless of hunting activity?

2. The Database Cross-Reference: A CPW officer could potentially cross-reference the firearms training database before contacts with individuals, creating de facto "watch lists" of firearms owners subject to enhanced scrutiny.

3. The Expanded Inspection: Could CPW officers conduct "compliance checks" at residences or vehicles based on database entries showing possession of specified firearms?

4. The Regulatory Redefinition: Could possession of firearms be redefined as a "regulated activity" similar to hunting, thereby justifying warrantless administrative searches?

The bill provides no clear limitations on these scenarios, creating a dangerous constitutional vacuum.

VI. CONSTITUTIONAL REPUGNANCE BEYOND SEARCH POWERS

A. Imposing Financial Barriers to Constitutional Rights

SB25-003 establishes substantial financial hurdles to exercise what is supposed to be a fundamental constitutional right:

1. Sheriff's processing fee (approximately $52.50)

2. CPW record verification fee ($45.00)

3. Training course costs (likely several hundred dollars)

4. Lost wages for attending multi-day courses (economic impact on working-class citizens)

The Supreme Court has consistently rejected financial barriers to constitutional rights. In Harper v. Virginia Board of Elections, 383 U.S. 663 (1966), the Court struck down poll taxes, declaring "wealth or fee paying has no relation to voting qualifications." Similarly, in Murdock v. Pennsylvania, 319 U.S. 105 (1943), the Court held that "a state may not impose a charge for the enjoyment of a right granted by the Federal Constitution."

SB25-003 effectively creates a "poll tax" on Second Amendment rights, with costs that could easily exceed $500—placing constitutional rights beyond the reach of many Colorado citizens.

B. The Surveillance State Framework

The bill establishes a comprehensive surveillance infrastructure for monitoring the exercise of constitutional rights:

1. Creation of a permanent database of firearms owners

2. Electronic tracking system for educational completion

3. Sheriff's department fingerprint collection and storage

4. CPW verification system accessible to third parties

This framework bears disturbing similarities to surveillance systems rejected by the Supreme Court in other contexts. In NAACP v. Alabama, 357 U.S. 449 (1958), the Court struck down membership disclosure requirements, recognizing that privacy in group association is "indispensable to preservation of freedom of association."

The database created by SB25-003 similarly threatens to chill the exercise of constitutional rights through comprehensive government monitoring.

C. Regulatory Misalignment: Wildlife Management vs. Firearms Regulation

The selection of CPW as the regulatory agency represents a profound misalignment between agency expertise and regulatory responsibility:

1. CPW's mission focuses on wildlife management and conservation

2. The agency has no expertise in firearms regulation or constitutional rights

3. CPW officers receive no specialized training in constitutional law

4. The agency's culture emphasizes resource management, not rights protection

This misalignment is not merely inefficient—it's constitutionally dangerous. The Supreme Court has recognized that regulatory authority must be exercised by agencies with relevant expertise and appropriate institutional constraints. In Whitman v. American Trucking Associations, 531 U.S. 457 (2001), the Court emphasized the importance of connecting regulatory authority to relevant expertise.

D. The Two-Step Constitutional Evasion Strategy

SB25-003 employs a sophisticated two-step approach to constitutional evasion:

1. Step One: Redefine a constitutional right as a "regulated activity" subject to licensing and registration

2. Step Two: Place regulatory authority within an agency with pre-existing administrative search powers

This approach allows proponents to claim they are merely "regulating" rather than "prohibiting" firearms while simultaneously stripping away fundamental constitutional protections through agency selection.

The Supreme Court explicitly rejected similar attempts at constitutional evasion in District of Columbia v. Heller, 554 U.S. 570 (2008), where it noted that the Second Amendment "elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home."

E. Enabling Selective Enforcement

Perhaps most troublingly, the bill creates a framework ripe for selective enforcement:

1. Broad discretionary authority for CPW officers

2. Vague standards for compliance verification

3. No meaningful oversight or accountability mechanisms

4. Concentration of power in an agency not traditionally subject to constitutional scrutiny

The Supreme Court has consistently expressed concern about laws that enable selective enforcement. In Grayned v. City of Rockford, 408 U.S. 104 (1972), the Court noted that laws must "provide explicit standards for those who apply them" to prevent "arbitrary and discriminatory enforcement."

SB25-003 fails this test spectacularly, creating a system where enforcement discretion is maximal and constitutional protections minimal.

VII. THE BROADER CONSTITUTIONAL THREAT

Beyond the immediate Second and Fourth Amendment concerns, SB25-003 establishes a dangerous blueprint for undermining constitutional rights more broadly:

A. The Rights Regulation Model

If legitimized, this approach could be applied to other fundamental rights:

1. Free speech could be redefined as a "regulated activity" requiring pre-registration

2. Religious observance could be subjected to "safety training" requirements

3. Voting rights could be placed under administrative agency control

4. Due process rights could be reshaped through administrative requirements

No constitutional right would be safe from this regulatory end-run around constitutional protections.

B. Administrative Governance of Constitutional Rights

The bill represents a troubling shift toward administrative governance of constitutional rights:

1. Unelected officials making fundamental decisions about constitutional rights

2. Administrative convenience trumping constitutional protections

3. Bureaucratic processes replacing judicial safeguards

4. Technical regulatory details obscuring profound constitutional changes

This approach fundamentally corrupts our constitutional order by placing the administration of rights in the hands of agencies rather than courts.

C. The Deliberate Constitutional Obfuscation

Perhaps most repugnant is the bill's deliberate obfuscation of its constitutional implications:

1. Technical language masks profound constitutional changes

2. Agency selection conceals the warrantless search implications

3. Educational requirements disguise the creation of a firearms registry

4. Administrative details obscure the fundamental reframing of constitutional rights

This calculated approach to constitutional evasion represents a profound threat to our constitutional order.

VIII. CONCLUSION: CONSTITUTIONAL REPUGNANCE IN STATUTORY FORM

SB25-003 represents a calculated attempt to circumvent multiple constitutional protections through administrative sleight of hand. By redefining constitutional rights as "regulated activities" and strategically placing regulatory authority within an agency with exceptional search powers, the bill effectively strips away fundamental protections while maintaining a veneer of constitutionality.

This approach is fundamentally repugnant to our constitutional order. It represents not merely a policy disagreement about firearms regulation, but a sophisticated attack on the very structure of constitutional rights. By establishing a blueprint for administrative circumvention of constitutional protections, SB25-003 threatens the integrity of our entire constitutional system.

The bill demonstrates contempt for constitutional limitations by deliberately exploiting administrative law to accomplish what could not be achieved directly. It represents legislative malpractice of the highest order—a calculated effort to undermine constitutional protections through regulatory manipulation rather than honest legislative debate.

No legislator who takes their oath to uphold the Constitution seriously could support such a measure. SB25-003 is not merely bad policy—it is an assault on the constitutional order itself.