State Files Brief in Large-Capacity Magazine Appeal

Arguments are laid out from both sides in Rocky Mountain Gun Owners v. Polis

Within a little more than a week of two mass shootings in El Paso, Texas, and Dayton, Ohio, the state of Colorado is weighing in on a lawsuit challenging its ban on large-capacity ammunition magazines.

The Colorado Attorney General’s Office on Aug. 12 filed a response brief with the Colorado Supreme Court in Rocky Mountain Gun Owners v. Polis. The lawsuit, brought by Rocky Mountain Gun Owners in 2013, claims the state’s ban on large capacity magazines — defined as those holding more than 15 rounds of ammunition — violated rights to keep and bear arms. Colorado’s ban was implemented in response to the Aurora theater shooting. Rocky Mountain claimed that the ban, as well as a background check law passed the same year, infringed upon members’ right to keep and bear arms. The court dismissed Rocky Mountain’s complaint, which the organization appealed, and the Court of Appeals reversed the dismissal as it related to the magazine ban. 

On remand, a trial judge ruled, and the Court of Appeals agreed, that it was a “reasonable exercise of government power” according to the state constitution and a test set forth in a 1994 case, Robertson v. City and County of Denver.

That question is at issue now. Rocky Mountain, in its brief filed in June, argues that the Court of Appeals erred in applying the Robertson test and that the case creates a conflict with an earlier case, Students Who Carry on Campus v. Regents of the University of Colorado, regarding the reasonableness standard.

According to Rocky Mountain, the court erred in applying a “rational basis test” which it says is the wrong standard of review for a fundamental right, such as the right to keep and bear arms. Rocky Mountain said the court should replace the Robertson test with a new one.

“The Second Amendment sets the minimum protection that may be afforded to the right to bear arms, and Article II, Section 13 [of the State Constitution] can provide no less. Therefore, Second Amendment jurisprudence is helpful in setting the appropriate standard of review.”

The state submitted a brief last week arguing that the ban doesn’t require scrutiny under the Second Amendment and that it meets standards in the Colorado Constitution for state regulation. The brief argues that the magazine ban is a public safety concern and doesn’t affect protected activities. 

“The trial court found that limiting magazines to 15 rounds does not appreciably impact Coloradans’ ability to defend themselves but can decrease the lethality of mass shootings by reducing the number of people who will be shot during a mass shooting and the number of times those people will be shot,” the attorney general wrote in the state’s brief.

The state argued that Robertson allows the state to set further restrictions on the right to bear arms if the restriction is reasonably related to a legitimate governmental interest such as the public health, safety or welfare.

The state outlined that in Colorado, the right to bear arms is a right of self-defense, something that the trial court agreed typically involves a person firing two or three times, not more than 15. 

The brief also argues that, according to prior case law, the state’s right does not grant “an absolute right to bear arms under all situations.”

“From Columbine High School to the Aurora theater shooting, we in Colorado are all too familiar with mass shootings and the devastating impacts they have on families and communities. The State has an interest, as well as a duty, to protect the residents of our state from tragic gun violence. Each mass shooting is different. A common denominator in each incident is that the shooter used a large-capacity magazine,” Weiser said in a press release. “The large-capacity magazine law will save lives. It also honors Coloradans’ right to bear arms for personal defense. That is why the Colorado Supreme Court should uphold this law.” 

The state saw amicus briefs from gun control-focused nonprofit Brady as well as the City and County of Denver, the City of Boulder, the Colorado Municipal League and the Giffords Law Center to Prevent Gun Violence. 

Rocky Mountain also received amicus support from the Colorado Law Enforcement Firearms Instructors Association, the Colorado State Shooting Association and the Firearms Policy Coalition.

Brady’s brief focused on the mental health impacts of mass shootings and detailed several incidents that have occurred involving large-capacity magazines since the case was first filed.

“There have been a number of notable mass shootings across the country just in the time since this case commenced,” said Lisa Fried, a Hogan Lovells partner who worked on the brief on behalf of Brady. 

“It’s never our goal to have a brief like this become important simply because there is a series of mass shootings, but the recent shootings highlighted the risk of high capacity magazines,” said Tanya Schardt, an attorney for Brady. “Now, more than ever, it’s imperative that governments have the ability to enact these laws to protect their citizens.” 

— Tony Flesor

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