July 18, 2019

Colorado Court of Appeals: Constitutional Claim Requires Inquiry into Reasonableness of Statutory Ammunition Limits

The Colorado Court of Appeals issued its opinion in Rocky Mountain Gun Owners v. Hickenlooper on Thursday, March 24, 2016.

HB 12-1224—HB 13-1229—Firearms—Colorado Constitution—Right to Bear Arms—Police Power—Legislative Powers—Executive Powers—Due Process Clause.

In 2013, the Colorado General Assembly passed House Bills 13-1224 and 13-1229, which banned the sale, possession, and transfer of “large capacity ammunition magazines,” and expanded mandatory background checks to recipients of firearms in some private transfers. Plaintiffs Rocky Mountain Gun Owners, National Association for Gun Rights, Inc., John A. Sternberg, and DV-S, LLC (collectively, plaintiffs) filed a complaint challenging the constitutionality of both bills. The district court analyzed the bills under a “reasonable exercise of police powers” test rather than an intermediate or strict scrutiny test and dismissed the complaint for failure to state a claim under CRCP 12(b)(5).

On appeal, plaintiffs contended that the district court erred in dismissing their claim that HB 13-1224 violated the Colorado Constitution’s right to bear arms clause. Because this case presented a challenge based on the Colorado Constitution, the district court did not err in using the “reasonable exercise of police power” test to assess the validity of HB 13-1224. However, the district court erred in its application of that test to this case. At a minimum, the claim asserts that the magazine limits violate the constitutional right to bear arms, which requires a factual inquiry into the reasonableness of the limits. When viewed in the light most favorable to plaintiffs, the allegations state a claim for relief, and plaintiffs are entitled to present evidence of the basis for their claim.

Plaintiffs contended that HB 13-1229 is unconstitutional because it (1) infringes on individuals’ rights to keep and bear arms; (2) delegates legislative and executive licensure powers to nongovernmental agents; and (3) violates the Due Process Clause, because licensed gun dealers will refuse to facilitate background checks, and they have discretion to impose criminal liability and punishments.

As to the first argument, HB 13-1229 imposes the same mandatory background check requirements on some firearm transfers between private parties as those required for retail sales and sales at gun shows. Thus it does not prevent the sale of firearms but merely creates an additional step for those sales not taking place through a licensed gun dealer. Furthermore, HB 13-1229 does not implicate a fundamental right and does not infringe on individuals’ rights to keep and bear arms for a lawful purpose; both Colorado and federal law bar certain individuals from possessing firearms.

Second, HB 13-1229 does not unconstitutionally delegate legislative or executive powers. Licensed gun dealers do not have the power to make rules regarding mandatory background checks; they are required to follow the same procedures in place for retail firearm transactions. The fact that they are not legally obligated to facilitate sales between private parties is not a delegation of legislative authority. Similarly, HB 13-1229 does not unconstitutionally delegate executive powers. Again, the process for these transfers is no different than that for retail firearm transactions and gun show sales. Licensed gun dealers are not agents of state law enforcement charged with keeping firearms away from criminals; they are only required to initiate a background check.

Third, plaintiffs presented no facts that licensed firearm dealers will refuse to facilitate background checks, thus depriving parties of a right to firearms sales. Additionally, licensed firearms dealers merely collect information; they do not have the discretion to impose criminal liability and punishments. Thus HB 13-1229 does not violate the Due Process Clause.

Therefore, the district court correctly concluded that plaintiffs failed to state a claim for relief on HB 13-1229.

As to HB 13-1224, the case was reversed and remanded. Other aspects of the court’s decision were affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

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