Rocky Mountain Gun Owners v. Polis

• Citation: 467 P.3d 314
• Decision Date: 29 June 2020
• Docket Number: Supreme Court Case No. 18SC817
• Parties: ROCKY MOUNTAIN GUN OWNERS, a Colorado nonprofit corporation; National Association for Gun Rights, Inc., a Virginia nonprofit corporation; and John A. Sternberg, Petitioners v. Jared S. POLIS, in his official capacity as Governor of the State of Colorado, Respondent.
• Court: Supreme Court of Colorado

467 P.3d 314

ROCKY MOUNTAIN GUN OWNERS, a Colorado nonprofit corporation; National Association for Gun Rights, Inc., a Virginia nonprofit corporation; and John A. Sternberg, Petitioners

v.Jared S. POLIS, in his official capacity as Governor of the State of Colorado, Respondent.

Supreme Court Case No. 18SC817

Supreme Court of Colorado.

June 29, 2020

Attorneys for Petitioners: Arrington Law Office, Barry K. Arrington, Denver, Colorado

Attorneys for Respondent: Philip J. Weiser, Attorney General, Eric R. Olson, Solicitor General, Stephanie Lindquist Scoville, First Assistant Attorney General, Kathleen L. Spalding, Senior Assistant Attorney General, Grant T. Sullivan, Assistant Solicitor General, Denver, Colorado

Attorneys for Amicus Curiae Brady Center to Prevent Gun Violence: Hogan Lovells US LLP, Lisa J. Fried, Nathaniel H. Nesbitt, Mark D. Gibson, Denver, Colorado

Attorneys for Amicus Curiae City and County of Denver: Kristin M. Bronson, City Attorney, Kristen J. Crawford, Assistant City Attorney, Kristin George, Assistant City Attorney, Denver, Colorado

Attorneys for Amicus Curiae City of Boulder: Thomas A. Carr, City Attorney, Boulder, Colorado, Everytown Law, William J. Taylor, Jr., Denver, Colorado

Attorney for Amici Curiae Colorado Law Enforcement Firearms Instructors Association; Sheriffs Shannon Byerly, Todd Combs, Allen Cooper, Garth Crowther, Bill Elder, Thomas Elliott, KC Hume, Matt Lewis, Dave Martin, Anthony Mazzola, Don McDonald, Tom McGraw, Jason Mikesell, Shawn Mobley, Tim Norton, Brett Powell, Steve Reams, Richard Reigenborn, Danny Sanchez, Brent Schroetlin, Casey Sheridan, Aaron Shiplett, Jeff Shrader, Justin Smith, Tony Spurlock, John Stivers, Rick Valdez, James Van Beek, Lou Vallario, Garrett Wiggins, Don Wilson, and Sam Zordel; and the Independence Institute: David B. Kopel, Denver, Colorado

Attorneys for Amicus Curiae Colorado Municipal League: David W. Broadwell, Laurel Witt, Denver, Colorado

Attorneys for Amicus Curiae Colorado State Shooting Association: Hale Westfall, LLP, Richard A. Westfall, Denver, Colorado

Attorney for Amicus Curiae Firearms Policy Coalition, Firearms Policy Foundation, Second Amendment Foundation, and Millennial Policy Center: Joseph Greenlee, Sacramento, California

Attorneys for Amicus Curiae Giffords Law Center to Prevent Gun Violence: Morrison & Foerster LLP, Nicole K. Serfoss, Sarah E. Barr, Denver, Colorado

En Banc

JUSTICE MÁRQUEZ delivered the Opinion of the Court.

¶1 In recent decades, Colorado has been the setting of two of the nation's most notorious mass shootings: Columbine High School in 1999 and the Aurora movie theater in 2012. In both attacks, the shooters used large-capacity ammunition magazines. Collectively, the shooters killed over two dozen people and wounded

scores more.

¶2 In response to these shootings, the Colorado General Assembly passed House Bill 13-1224 ("HB 1224"), which limits the capacity of magazines acquired after July 1, 2013. Relevant here, HB 1224 generally prohibits the sale, transfer, or possession of any "large-capacity magazine," defined to include "[a] fixed or detachable magazine, box, drum, feed strip, or similar device capable of accepting, or that is designed to be readily converted to accept , more than fifteen rounds of ammunition." § 18-12-301(2)(a)(I), C.R.S. (2019) (emphasis added).

¶3 Rocky Mountain Gun Owners (a Colorado nonprofit organization), the National Association for Gun Rights (a Virginia nonprofit organization), and John A. Sternberg (collectively, "Plaintiffs") challenge this law as an infringement on the right to bear arms—not under the Second Amendment to the U.S. Constitution, but under article II, section 13 of the Colorado Constitution. Plaintiffs construe HB 1224's definition of "large-capacity magazine" to encompass all magazines with removable base pads because such magazines can be "readily converted to accept[ ] more than fifteen rounds of ammunition." § 18-12-301(2)(a)(I). They argue that HB 1224 therefore operates to ban practically all detachable magazines, violating Coloradans’ state constitutional right to bear arms in defense of home, person, and property.

¶4 We disagree. We conclude that Plaintiffs’ interpretation of the definition of "large-capacity magazine" is inconsistent with the provision's plain text because it ignores the narrowing language, "designed to be readily converted to accept[ ] more than fifteen rounds of ammunition." § 18-12-301(2)(a)(I) (emphasis added). Relying on our longstanding test under Robertson v. City & County of Denver , 874 P.2d 325 (Colo. 1994), for examining challenges brought under article II, section 13 of the Colorado Constitution, we hold that Plaintiffs failed to prove beyond a reasonable doubt that HB 1224 violates the state constitutional right to bear arms. Accordingly, we affirm the judgment of the court of appeals.

¶5 We emphasize that the Second Amendment applies with full force in Colorado and our legislature may not enact any law in contravention of it. But Plaintiffs have challenged HB 1224 only under the Colorado Constitution. Reviewing that claim, we conclude today that the legislation passes state constitutional muster. Because Plaintiffs do not challenge HB 1224 under the Second Amendment, we do not address whether the legislation runs afoul of the federal constitution. That separate question is simply not before us.¹

I. Facts and Procedural History

A. HB 1224

¶6 In 2013, the Governor signed HB 1224 into law. As relevant here, that legislation added two provisions to the criminal code regulating large-capacity magazines ("LCMs"). Section 18-12-301(2)(a)(I) defines a "large-capacity magazine" to include any "fixed or detachable magazine, box, drum, feed strip, or similar device capable of accepting, or that is designed to be readily converted to accept , more than fifteen rounds of ammunition." (Emphasis added.) Section 18-12-302, C.R.S. (2019), criminalizes the sale, transfer, or possession of LCMs, with certain exceptions.²

B. Plaintiffs’ Complaint

¶7 Plaintiffs challenged HB 1224 under article II, section 13 of the Colorado Constitution, which addresses the right to keep and bear arms:

The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the 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 weapons.

Colo. Const. art. II, § 13. In their complaint, Plaintiffs alleged that the LCM prohibition violates the right to keep and bear arms in defense of home, person, and property.³ In particular, Plaintiffs alleged that "[t]he magazines for most handguns, for many rifles, and for some shotguns are detachable box magazines," the "very large majority" of which contain a removable floor plate, or base pad.⁴ According to Plaintiffs, a removable base pad "allows the user to clear ammunition jams, clean the inside of the magazine, and perform maintenance on the internal mechanics of the magazine." But importantly for purposes of their constitutional challenge, Plaintiffs alleged that a removable base pad also "inherently creates the possibility" for a magazine to be extended through commercially available or readily fabricated parts, such that nearly every magazine can be "readily converted to accept[ ] more than fifteen rounds of ammunition" in violation of section 18-12-301(2)(a)(I). In short, Plaintiffs complained that because the "designed to be readily converted" clause in section 18-12-301(2)(a)(I) arguably encompasses any magazine with a removable base pad, it effectively bans most functional firearms and thus violates Coloradans’ right to keep and bear arms under the state constitution.

C. Initial Dismissal of Plaintiffs’ Complaint

¶8 The trial court granted the Governor's motion to dismiss Plaintiffs’ claim, relying on this court's decision in Robertson v. City & County of Denver . Robertson addressed a challenge to a Denver ordinance that banned the manufacture, sale, or possession of assault weapons. 874 P.2d at 326. The district court in that case concluded that the right to bear arms under article II, section 13 is a fundamental right. Id. at 327. It therefore reviewed the ordinance under strict scrutiny, asking whether the ban was supported by a compelling government interest and whether it was narrowly tailored to meet that interest. Id. at 331.

¶9 This court reversed and instead applied a "reasonable exercise" test to Denver's assault weapon ban. Id. Specifically, we held that "the state may regulate the exercise of [the article II, section 13 right] under its inherent police power so long as the exercise of that power is reasonable," id. at 328, and that an act is within the state's police power "if it is reasonably related to a legitimate governmental interest such as the public health, safety, or welfare," id. at 331. We concluded that because Denver's ordinance served a legitimate interest of improving public safety and banned only a narrow class of weapons, the law was a reasonable exercise of the state's police power. Id. at 333.

¶10 Here, applying the reasonable exercise test from Robertson , the trial court held that, even accepting the facts alleged in their complaint as true, Plaintiffs failed to state a claim that HB 1224 was not a reasonable exercise of the state's police power. The trial court rejected Plaintiffs’ reading of the statutory definition of an LCM, reasoning that "a magazine that is designed to be readily converted is not the same as one with a design that is subject to being readily converted." The court explained that "[t]he fact that extensions may be bought or built which take advantage of the removable floor plate to extend the magazine capacity does not alter [the] purpose for which the floor plate was designed." That purpose, even according to the complaint, was to allow users to clear ammunition jams and perform maintenance and cleaning. The trial court thus...