In one of the most closely watched cases of the past year, the Colorado Supreme Court on June 29 unanimously upheld a state law limiting firearm magazine capacity, finding the statute does not violate the right to keep and bear arms under the Colorado Constitution.
At the center of the litigation is HB13-1224, passed in the wake of the Aurora theater shooting, which prohibits the sale, transfer or possession of large-capacity magazines — generally defined as a magazine that can hold more than 15 rounds of ammunition.
Shortly after the law was passed, local and national gun rights groups sued then-Governor John Hickenlooper, challenging the constitutionality of the bill under Article II, Section 13 of the Colorado Constitution, which grants the right to bear arms in self-defense. The plaintiffs, including Rocky Mountain Gun Owners and Virginia-based National Association for Gun Rights, didn’t challenge the statute under the Second Amendment of the U.S. Constitution.
The district court initially dismissed the case, and the plaintiffs appealed. Applying the “reasonable exercise test” established in Robertson v. City and County of Denver, a division of the Court of Appeals in 2018 concluded the law is constitutional as a “reasonable exercise of the state’s power for the protection of public health and safety.”
The Colorado Supreme Court found HB 1224 satisfied the test from Robertson, a 1994 case in which the court upheld a Denver assault weapons ban. According to the test, the government may regulate firearms under the state constitution as long as the legislation is a “reasonable exercise” of police power and doesn’t work to nullify the right to bear arms in defense of home, property or person.
The plaintiffs had argued HB 1224’s definition of LCMs, which includes devices “designed to be readily converted to accept more than fifteen rounds of ammunition,” unreasonably prohibits the vast majority of detachable magazines since many with removable base pads can be converted to accept more than 15 rounds. But the high court rejected this reading, distinguishing between magazines “designed to” hold more than 15 rounds and those “capable” of it. The court noted the LCM ban “leaves available ‘ample weapons’ for self-defense” and a grandfather clause allows possession and use of existing LCMs.
“[B]ecause Plaintiffs’ overly broad reading of the statutory definition is contrary to its plain language, we reject their contention that HB 1224’s definition of LCMs encompasses all magazines with removable base pads,” said the opinion written by Justice Monica Márquez. “Because Plaintiffs’ constitutional challenge rests on this misreading of the statutory language, it fails.”
In response to the decision, Colorado Attorney General Phil Weiser said in a statement: “As the Court states in its opinion, there is overwhelming evidence that the General Assembly placed reasonable limitations on large-capacity magazines to 15 rounds when it passed the law seven years ago.”
“The large-capacity magazine law will decrease the deadly impacts of mass shootings by reducing the number of people who will be shot during a mass shooting incident, and it will save lives. It also honors Coloradans’ right to bear arms for personal defense,” Weiser said. “Today’s ruling is a win for public safety and for the rule of law.”
“On the whole, I think what it does is it makes it that much harder for people to get weapons of war that we think are unnecessary for self-defense,” said Kelly Sampson, legal counsel at the Brady Center to Prevent Gun Violence, about the practical effects of the ruling.
“That being said, one of the things that we know is that… we live in a country that has different states with different standards,” Sampson said. “So, we applaud Colorado for upholding this state law. And ultimately, we’re hoping that other states and the federal government will follow to really be able to prevent mass shootings.”
Hogan Lovells partner Mark Gibson, who filed an amicus brief on behalf of the Brady Campaign, said while similar magazine bans have been challenged around the country, this case was somewhat unusual because it proceeded to trial.
“This is a case where you actually have factual findings from a trial court judge who, in this case, found that there was not evidence of a single incident in the history of the state of Colorado where someone fired more than two or three rounds in self-defense,” Gibson said.
“And that was a really important point for showing that this ban on… more than 15 rounds will in no way undermine a person’s ability to keep a gun and defend themselves,” he said.
David Kopel of the Independence Institute filed an amicus brief in the case on behalf of the Colorado Law Enforcement Firearms Instructors Association and several county sheriffs in support of the plaintiffs. He said the court’s decision means “the Bloomberg lobby faces few impediments from Colorado law in how harsh it wants to go in destroying and strangling the right to arms in Colorado.”
The Robertson test and its reasonableness standard “is a much weaker constitutional protection than what the text of the constitution actually says,” Kopel said, calling it a “judicial fabrication” that “comes close to nullifying the Colorado right to arms.”
“This is part of a pattern of the Colorado Supreme Court nullifying plain constitutional language that the court doesn’t like,” he added, citing cases involving the Taxpayer Bill of Rights and the court’s recent interpretation of the legislature’s 120-day session rule as other examples.
While the plaintiffs only challenged the statute under the state constitution, Kopel noted there have been several Second Amendment challenges to similar magazine bans around the country, including one currently pending before the 9th Circuit.
In a footnote to last week’s opinion, the Colorado Supreme Court noted that federal courts had typically upheld LCM bans as constitutional. “Courts, generally speaking, uphold large-capacity magazine bans as consistent with the Second Amendment on the federal level and then [with] state constitutions,” Sampson said.
“I think this opinion just adds to the chorus of courts throughout the country all upholding these types of reasonable restrictions on large-capacity magazines,” said Gibson.