Large-Capacity Magazine Ban Upheld

by Doug Chartier

At the Colorado Court of Appeals last week, a gun owner advocacy group suffered a setback in its bid to have the state’s large-capacity magazine ban repealed.

In its Thursday opinion in Rocky Mountain Gun Owners v. Hickenlooper, a division of the appellate court upheld Colorado’s prohibition on the sale and possession of gun magazines containing more than 15 ammunition rounds. The LCM ban doesn’t violate Coloradans’ rights under the state constitution to keep and bear arms because it is a “reasonable exercise” of the state’s power to promote public health and safety, the division held.

Effective July 2013, the LCM ban was one of several gun-control bills the state legislature passed in the wake of the Aurora theater shooting. Rocky Mountain Gun Owners, a local gun rights nonprofit, sued the state to have the LCM ban repealed, as well as a new statute expanding background check requirements for certain firearm transfers. RMGO contended that both statutes infringed on the state constitutional right to keep and bear arms.

The Court of Appeals previously heard an appeal in this case two years ago after the district court had dismissed RMGO’s complaint. The appellate court affirmed the demise of RMGO’s challenge to the background check law, but it revived the LCM ban challenge.

On remand, District Judge John Madden IV presided over a bench trial and ruled that the LCM ban was “a reasonable exercise of police power” and didn’t impose on Coloradans’ constitutional gun rights.

The Colorado Supreme Court’s “reasonable exercise test,” devised in its 1994 decision in Robertson v. City and County of Denver, determines whether a state gun regulation is reasonable in protecting public health and safety. In its latest appeal, RMGO argued that this test was too low a standard to be applied to gun restrictions, saying the right to bear arms is fundamental.

But the appeals court division said it couldn’t “depart from” the Supreme Court precedent by abandoning the test.

The district court said the LCM ban’s purpose was to “reduce [the] number of people who are killed or shot in mass shootings.” In its opinion last week, the appeals court deferred to that finding and then held “that this purpose reasonably furthers a legitimate governmental interest in public health and safety,” according to the division opinion written by Judge David Richman.

“Because the incidence of mass shootings with LCMs is on the rise; the only mass shootings in Colorado over the last fifty years involved LCMs …; and smaller magazines create more pauses in firing, which allow potential victims to take life-saving measures, we conclude that the statutes are reasonably related to the legitimate governmental purpose of reducing deaths from mass shootings.”

It is yet unclear whether RMGO intends to appeal to the state Supreme Court. The organization’s attorney, Barry Arrington, declined to comment on Thursday’s decision.

The division also rejected RMGO’s argument that the LCM ban was overbroad because it virtually banned all magazines with a detachable base (which can be converted to an LCM), as well as its argument that the ban overburdened gun owners’ right to use a gun for self defense.

“Plaintiffs presented no evidence that any person in Colorado has ever fired even close to fifteen rounds in self-defense,” Richman wrote. •

— Doug Chartier, [email protected]

To read this story and other complete articles featured in the October 22, 2018 print edition of Law Week Colorado, copies are available for purchase online.