121 F.4th 96
10th Cir.2024Background
- Colorado enacted SB 23-169 to raise the minimum age to purchase a firearm from 18 to 21; it was to take effect August 7, 2023 and applied to private and dealer sales with limited exceptions (military, on-duty peace officers, P.O.S.T.-certified officers); it did not ban possession, gifts, inheritance, or other non-purchase transfers.
- Plaintiffs (Rocky Mountain Gun Owners, Mosgrove, and Pineda) sued Governor Polis in federal court under 42 U.S.C. § 1983, claiming the law violates the Second Amendment; they sought a preliminary injunction before the law took effect.
- The district court (without a hearing) granted a preliminary injunction on August 7, 2023, finding plaintiffs likely to succeed on the merits under Bruen and that remaining injunction factors favored plaintiffs; Governor Polis appealed and sought a stay, which the district court denied.
- On appeal the Tenth Circuit dismissed Mosgrove as moot (he turned 21) and held Pineda had standing as a pre-enforcement challenger, but reversed the preliminary injunction — concluding SB 23-169 falls within Heller’s category of "laws imposing conditions and qualifications on the commercial sale of arms" and is presumptively lawful.
- The panel directed the district court to dissolve the injunction and remanded; a concurring judge agreed the injunction should be dissolved but would place the Heller "presumptively lawful" analysis at Bruen step two rather than at step one.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing / justiciability | Pineda has present intent to purchase and faces imminent injury from the statute | Polis contends Pineda’s declaration lacks concrete plans and thus no injury-in-fact | Pineda has standing: declaration shows concrete, particularized present intent and credible threat of enforcement; Mosgrove is moot after turning 21 |
| Does the Second Amendment’s plain text cover purchasing firearms? | Purchasing is a necessary concomitant to the right to "keep and bear" arms | Polis argues text protects possession/carry, not purchase; purchase is a commercial regulation | Court assumed people and arms covered but held purchase/sale regulation here is within Heller’s commercial-sales category and thus outside the plain-text inquiry for this case |
| Are age-based sale/purchase restrictions presumptively lawful? (Heller safe harbor) | Pineda: Colorado’s 21 cutoff infringes core right; not shown to be historical analogue | Polis: SB 23-169 is a nondiscretionary, objective condition on commercial sale—like other long-standing sale qualifications—and therefore presumptively lawful | Court: SB 23-169 is a condition/qualification on sale/purchase covered by Heller’s list; it is nondiscretionary and not shown to be put to "abusive ends," so it falls outside the Second Amendment plain-text protection here |
| Preliminary injunction factors (likelihood of success; irreparable harm; balance/public interest) | Likelihood of success on merits and irreparable constitutional injury justify injunction | Polis: Plaintiffs unlikely to prevail; public interest and harms weigh for enforcement | Court: Pineda failed to show substantial likelihood of success; therefore irreparable harm prong fails and balance/public interest favor Polis; injunction was abused and must be dissolved |
Key Cases Cited
- District of Columbia v. Heller, 554 U.S. 570 (2008) (defines individual right to keep and bear arms and lists "presumptively lawful" regulations including conditions on commercial sale)
- N.Y. State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022) (articulates text-and-history test for Second Amendment challenges)
- McDonald v. City of Chicago, 561 U.S. 742 (2010) (incorporates Second Amendment against the states and reiterates Heller’s safe-harbor examples)
- United States v. Rahimi, 144 S. Ct. 1889 (2024) (clarifies application of Bruen’s historical-tradition inquiry)
- Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) (standard for preliminary injunctions: movant must show likelihood of success and irreparable harm)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III standing requirements; necessity of concrete, particularized, and imminent injury)
- Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014) (pre-enforcement challenge standing principles: intent to engage in proscribed conduct plus credible threat of prosecution)
- Clapper v. Amnesty Int'l USA, 568 U.S. 398 (2013) (future injury must be certainly impending or present substantial risk)