2016 COA 45M
Colo. Ct. App.2016Background
- In 2018 Colorado enacted two bills: H.B. 18-1224 (criminal ban on sale/possession/transfer of "large-capacity magazines" defined as devices capable of or "readily converted" to accept >15 rounds, with a narrow continuous-possession grandfather clause) and H.B. 18-1229 (expansion of mandatory background checks to certain private firearm transfers via licensed dealers).
- Plaintiffs (Rocky Mountain Gun Owners; National Association for Gun Rights; individual and business plaintiffs) sued the Governor challenging both bills under the Colorado Constitution (article II, §18 right to bear arms) and, as to H.B. 18-1229, also on nondelegation and due process grounds.
- The district court dismissed the complaint under C.R.C.P. 12(b)(5) for failure to state a claim, applying Colorado’s Robertson "reasonable exercise of police power" test to the article II, §18 challenges.
- On appeal the court reviewed de novo and concluded Robertson remains controlling for state‑constitutional challenges to article II, §18; however, it held the district court misapplied that test to H.B. 18-1224 and reinstated plaintiffs’ claim as plausible (remanding for factual development).
- The appellate court affirmed dismissal of plaintiffs’ challenges to H.B. 18-1229: it held the background-check expansion does not violate the state right to bear arms, is not an unconstitutional legislative or executive delegation to licensed dealers, and does not state a due process claim on the pleadings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Validity of H.B. 18-1224 (magazine ban) under Colo. Const. art. II, §18 | Statute broadly bans magazines (including common detachable mags) and the continuous-possession grandfather is unworkable; thus it unreasonably infringes the state right to bear arms | Robertson permits reasonable police-power regulations; statute is within that standard and is clear on its face | Court: Robertson test governs state claim; plaintiffs pleaded sufficient facts that the law may be unreasonable — reversed dismissal and remanded for factfinding |
| 2) Whether H.B. 18-1224 must be assessed under strict scrutiny (or federal Second Amendment analysis) | Heller/McDonald make the right fundamental; stricter review required and Robertson’s reasonableness approach is obsolete | State argues Robertson remains binding Colorado precedent; state constitutional analysis can differ from federal Second Amendment doctrine | Court: Robertson remains controlling for article II, §18; therefore reasonableness test applies (majority) |
| 3) H.B. 18-1229 infringes right to bear arms by burdening private transfers with background checks | Imposing mandatory dealer-facilitated checks on private transfers substantially burdens the right and will impede lawful acquisition | The law only adds an administrative step already used for retail/gun-show sales and targets barred persons; it does not prevent lawful possession | Held: Plaintiffs failed to state an infringement claim; dismissal affirmed |
| 4) H.B. 18-1229 unlawful delegation / due process | Licensed dealers are ceded legislative/executive power and may unreviewably block transfers; this delegation and discretionary gatekeeping violate separation of powers and due process | Dealers merely perform background-check initiation (CBI completes check); they have no rulemaking, prosecutorial, or unreviewable power; statute sets scope and limits | Held: Delegation and due process claims dismissed for failure to state a claim; affirmed |
Key Cases Cited
- Robertson v. City & Cty. of Denver, 874 P.2d 325 (Colo. 1994) (state courts may uphold gun regulations if they are a reasonable exercise of police power)
- District of Columbia v. Heller, 554 U.S. 570 (2008) (Second Amendment protects individual right to possess commonly used arms for lawful purposes; core protections cannot be voided by interest balancing)
- McDonald v. City of Chicago, 561 U.S. 742 (2010) (Second Amendment incorporated against the states via Fourteenth Amendment; right is fundamental)
- Colorado Outfitters Ass'n v. Hickenlooper, 823 F.3d 537 (10th Cir. 2016) (federal litigation concerning Colorado firearm statutes; appellate decision addressing standing and prior district-court findings)
- City of Lakewood v. Pillow, 501 P.2d 744 (Colo. 1972) (Colorado Supreme Court treated article II, §18 protections as requiring narrow tailoring where fundamental liberties are broadly stifled)