<![CDATA[RMGO v. Polis]]>

Federal appeals court keeps Colorado’s under-21 gun ban on ice

August 29, 2023 by Cam Edwards Leave a Comment

Second Amendment advocates won a big victory on Monday as the Tenth Circuit Court of Appeals ruled that Colorado’s law forbidding gun sales to adults under the age of 21 cannot be enforced while the measure is being challenged in court, rejecting an appeal by Gov. Jared Polis, who was seeking to enforce the prohibition.

Back on August 7th, just a day before the new law was set to take effect, a federal judge issued a preliminary injunction requested by Rocky Mountain Gun Owners, but Polis quickly appealed that decision.

In their brief two-page order, appellate judges Carolyn McHugh and Nancy Moritz (both Obama appointees, incidentally) concluded that the governor had “failed to show his entitlement to a stay” under the factors necessary. Those factors include Polis establishing that “he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”

It’s unclear from today’s order if Polis was able to satisfy any of those requirements in the eyes of the Tenth Circuit, but in issuing the preliminary injunction U.S. District Court Judge Phillip Brimmer concluded that the plaintiffs were likely to succeed in their lawsuit, that the deprivation of their Second Amendment rights did indeed cause them to suffer irreparable harm, the balance of equities was tipped in their favor, and that the injunction served the public interest by keeping the Second Amendment rights of young adults intact. Specifically, Brimmer found the state’s evidence for a historical basis for the prohibition to be severely lacking. Colorado attorneys had pointed to several ordinances that Brimmer concluded were not analogous to the state’s complete prohibition on gun sales for under-21s, while the few statutes that did bar adults younger than 21 from keeping or bearing arms were passed long after the Second Amendment took effect.

Without any confirmation in the form of founding era regulations, the Court does not consider three pre-Civil War regulations as strong evidence of the “public understanding of the right to keep and bear arms” at the time the Second Amendment was ratified.
Finally, the Governor identifies post-Civil War regulations that some states adopted by the early 20th century. The Governor represents that, by 1900, 18 states and the District of Columbia adopted laws regulating firearm sales to those under the age of 21 and that shortly thereafter 45 states had laws restricting the sale of firearms to minors. The Individual Plaintiffs argue that, of the 17 post-Civil War laws the Governor identifies, one did not prohibit the purchase of firearms, one is from a state that “operated under a fundamental misunderstanding of the right to bear arms,” one was from a Western state that should be disregarded as overly restrictive under Bruen, and that seven other laws were adopted by States with no Second Amendment analogue. The Individual Plaintiffs argue that the remaining seven laws are not appropriate analogues to SB23-169 because they rely on a status, namely, legal minority, that does not apply to 18-to-20 year olds today.
The Governor argues that the regulations he identifies burden the right to selfdefense in a similar way to SB23-169 in that they burden persons under a certain age from accessing weapons, mostly by limiting their ability to purchase weapons. Additionally, the Governor argues that the regulations were in place for the same reason that SB23-169 was passed, to protect public safety, despite the fact that such laws would burden the right to self-defense.
Bruen stated that the Court has “made clear that individual rights enumerated in the Bill of Rights and made applicable against the States through the Fourteenth Amendment have the same scope as against the Federal Government.” While it remains an open question as to how a court should weigh historical understandings of the Second Amendment at the time that the Fourteenth Amendment was adopted, because the Governor fails to point to any evidence during the founding era that a total prohibition on the sale of firearms to minors was consistent with the right to bear arms, the Court gives little weight to evidence from the time of the Fourteenth Amendment’s ratification to limit the scope of the right to keep and bear arms. The Court finds that the Governor has failed to meet his burden to demonstrate that SB23-169 is consistent with the Nation’s historical tradition of firearms regulation. For the purpose of obtaining a preliminary injunction, the Individual Plaintiffs have demonstrated a likelihood of success on the merits.

And now the Tenth Circuit agrees. The next step for Polis would be to take his emergency appeal to the Supreme Court and ask them to reinstate the ban, but I’d say there’s next to no chance of that happening. SCOTUS declined to intervene in granting an emergency injunction against New York’s post-Bruen carry restrictions and Illinois’ ban on so-called assault weapons and large capacity magazines, and even if I have my concerns about Chief Justice Roberts getting squishy on the Second Amendment, the Court is most likely going to do the same now that it’s anti-gunners asking for relief.

Today’s decision doesn’t guarantee that Colorado’s ban on gun sales to young adults will remain unenforced forevermore, but it’s a significant step in that direction, and congratulations are in order to RMGO and the individual plaintiffs in the case who are suing to regain the rights stripped from them by Colorado lawmakers and Polis himself.

Federal judge bars Colorado from enforcing ban on gun sales to under-21s

August 8, 2023 by Cam Edwards Leave a Comment

Well that didn’t take long. On the very same day that a new law took effect in Colorado prohibiting firearm sales to adults under the age of 21, a federal judge granted a preliminary injunction halting enforcement of the new statute.

In his ruling, Chief Judge Phillip Brimmer rejected arguments by the state of Colorado that the phrase “the people” in the Second Amendment does not apply to 18-to-20-year olds. Instead, as Brimmer noted, courts across the country have found that the phrase not only covers individuals in that age range (Firearms Policy Coalition, Inc. v. McCraw), but at least some non-violent felons (Range v. Garland) as well.

The Court is persuaded by the reasoning in Range and McCraw that an interpretation of “the people” in the Second Amendment should begin with the assumption that every American is included. In reaching this conclusion, the Court is careful not to read Heller or Bruen as limiting to whom “the people” refers. Moreover, the Court finds that the Governor has not shown a “historical tradition of firearm regulation” of 18-to-20 year olds during the founding era, as opposed to him citing evidence supporting an argument that states could have regulated 18-to-20 year olds because they lacked rights as minors.
Thus, the Court finds that the Individual Plaintiffs have shown a likelihood of success on the merits on the question of whether the Second Amendment applies to 18-to-20 year olds.

After determining that, Brimmer next turned to the question of whether Colorado’s new law barring all firearm sales to under-21s violates the Second Amendment rights of that class of citizens.

The Individual Plaintiffs claim that it is settled law that Constitutional rights protect closely related acts necessary to their exercise and that purchasing firearms is necessary for keeping and bearing arms.
Additionally, the Individual Plaintiffs argue that a total prohibition on a right is not necessary to show a right is infringed. The Governor argues that the Individual Plaintiffs have made an insufficient showing that the right to keep arms includes a right to buy firearms. Additionally, the Governor argues the Individual Plaintiffs have not shown that their right to self-defense is burdened because SB23-169 has not gone into effect and therefore the Individual Plaintiffs still have the ability to purchase firearms.

Yes, Gov. Jared Polis and his attorneys really argued that though there might be an explicit right to keep and bear arms protected by the Second Amendment, there’s no right to acquire a firearm to keep and bear. Brimmer pointed to a host of decisions from other courts to the contrary, finding once again that the plaintiffs are likely to succeed in their arguments at trial.

Next, Brimmer examined the historical record for any prohibitions similar to Colorado’s new law, and found the governor’s evidence less than compelling. Polis unsuccessfully tried to convince the judge that Bruen‘s text, history, and tradition test shouldn’t apply to laws involving the commercial sale of firearms, and Brimmer was similarly unswayed by the governor’s contention that at the time of the Second Amendment’s adoption certain classes of people were barred from possessing firearms because of safety concerns. Brimmer also took a dim view of the governor’s claim that a handful of rules on 18th century college campuses barring possession of firearms for those under the age of 21 is a valid analogue to Colorado’s ban on gun sales to under-21s, arguing instead that a ban on possession on campus is not nearly the same as a prohibition on all under-21s purchasing a firearm at retail.

Ultimately Polis’s arguments proved unpersuasive for Brimmer, who sided with the plaintiffs and granted an injunction blocking enforcement of the statute while the lawsuit proceeds to trial. Polis will undoubtedly appeal Brimmer’s decision to the Tenth Circuit Court of Appeals, perhaps even as early as today, but for now Colorado adults under the age of 21 are still able to access their Second Amendment right to lawfully acquire a firearm, and hopefully that remains the case going forward.