One of the most anticipated cases of the Colorado Supreme Court’s current session aired oral arguments last week as a gun rights group continued its six-year push to get a gun restriction statute struck down.
Rocky Mountain Gun Owners seeks to have Colorado’s ban on magazines containing more than 15 rounds repealed. But RMGO’s legal challenge is at its last resort, having suffered a loss at trial, and an appeals court decision last year affirmed the district court decision. At the Supreme Court on Wednesday, the justices grilled each arguing attorney on what standard the court should use to determine whether the LCM ban violates the Colorado Constitution.
Enacted in 2013, House Bill 1224 bans the sale, possession and transfer of “large-capacity ammunition magazines.” RMGO filed a lawsuit in state district court within months of HB 1224’s enactment, arguing that it infringes on Coloradans’ constitutional right to keep and bear arms. The LCM ban challenge lost in state district court, where Judge John Madden IV upheld the statute as a “reasonable exercise” of the state’s police power. The Colorado Court of Appeals affirmed in October 2018, setting up RMGO’s appeal to the Supreme Court.
RMGO also sued to have the state’s background check expansion repealed, but that claim was dismissed, and the Colorado Court of Appeals upheld that dismissal in 2016 in the case’s first appeal.
Questions came frequently at each attorney during arguments Wednesday, especially from Justices Richard Gabriel, Carlos Samour and Monica Márquez.
RMGO focused its challenge on the “Robertson” standard as it was used to justify the LCM ban. Its arguing attorney, Barry Arrington of Arrington Law Firm in Denver, said the standard Colorado courts use to interpret the right to keep and bear arms can’t be narrower than the Second Amendment. The test that the trial court used, Robertson v. City and County of Denver, to determine a “reasonable exercise of government power” was inappropriate, he argued. Instead of the reasonable standard, he said the court should adopt the text, history and tradition standard.
“For 138 years, the General Assembly never banned a single firearm or firearm component,” Arrington said. “HB 1224 is a departure from a 138-year tradition.”
In the 2010 decision McDonald v. City of Chicago, the U.S. Supreme Court ruled that the right to keep and bear arms is fundamental and applies to state and local governments in addition to the federal government. Gabriel noted that in Robertson, decided in 1994, the Colorado Supreme Court declined to decide whether the Second Amendment was a fundamental constitutional right.
“Why are we bound by what the U.S. Supreme Court thinks of the Second Amendment versus what we think of our Colorado Constitution?” Gabriel asked Arrington. “And why can’t we adopt a reasonable exercise standard?”
Arrington said the right to bear arms is a “preexisting right” that “stands apart from either the state or the federal constitution.” The Second Amendment provides “a floor of review” that Colorado’s standard can’t go below. The provisions exist because of the right, and not the other way around, he added.
The government has an interest in reducing mass shooting deaths, but HB 1224 doesn’t do that, Arrington argued.
Gabriel pushed back on that point. “What is irrational here about the government saying, if you don’t have to reload, and you can fire 15 times in a row, the odds of you hurting more people are significantly higher than if you had to stop and reload?”
Arrington said that question can’t be answered in a vacuum without “other considerations.” According to statistics the state showed at trial, there are millions of large-capacity magazines in Colorado with only two instances where they were “abused.”
“The government is saying, if there’s a one in a million chance that one of these firearm components can be abused by a homicidal maniac, we get to ban them all,” Arrington said.
Gabriel said that on the flipside of that argument, the statistics show that no one has ever used 15 rounds in self-defense. “You seem to want it both ways.” Arrington said the government has the burden of showing that banning the LCMs is reasonable, but citizens don’t have the burden of showing they can keep them for self-defense.
RMGO also argued that the statute’s plain language, which also bans all magazines “designed to be converted” into LCMs, effectively bans nearly all magazines because any magazine is capable of being converted into LCM if it has a removeable baseplate.
Marquez said RMGO seems to want “designed” to mean capable of expansion, and the State wants “designed” to mean intended for expansion. Arrington s
aid the court should look to the legislature’s broader intent in drafting the bill.
“Why would we assume that the legislature intended to make illegal virtually every magazine in existence?” Marquez asked. Arrington said the lawmakers heard opposing arguments to the bill saying it would do just that, but they proceeded to enact it anyway. Justices Marquez, Brian Boatright and Melissa Hart continued to voice skepticism on that point.
In his time at the podium, Eric Olson, solicitor general for the Colorado Attorney General’s Office, pushed for the court to consider only the Colorado Constitution, saying that there’s no federal constitutional claim at issue in this case.
Under the Supremacy Clause, Olson said, a Colorado citizen can rely on either the state or the federal constitution and bring arguments from either that best protect their rights. But since RMGO v. Polis is only a state constitutional claim, the court need only concern itself with the Colorado Constitution, Olson argued. “We don’t need to decide whether [the Colorado Constitution provides] more or less than its federal counterpart.”
“But what do we do with McDonald’s statement that in fact the right to bear arms is a fundamental right?” Márquez asked Olson. “Do we just ignore that? Pretend that the right here in Colorado is not in fact fundamental?”
Olson said that Robertson doesn’t require courts to make the “fundamental” determination to decide this case. “I don’t think that just because the Supreme Court said it’s fundamental under the Second Amendment means it’s fundamental under the Colorado Constitution.”
“I sense a great resistance to declaring that right fundamental under the Colorado Constitution,” Márquez said. “Do you think you lose if we disagree and say that it is fundamental?”
Olson said no, and that “there’s a lot of general language in other cases that would be used to argue that … only strict scrutiny would apply.”
Boatright invited Olson to respond to RMGO’s argument that if the court uses the intermediate scrutiny test, the LCM ban would be struck down. To pass the intermediate scrutiny test, a law must further an important government interest and also in a way that is “substantially related” to that interest.
Olson said that, based on the record presented at trial, where each side argued the costs and benefits of the LCM ban, “every judge that’s looked at this said this is O.K.” Every other court using intermediate scrutiny to consider other states’ LCM bans, he added, has upheld the laws even when they were more restrictive than Colorado’s, i.e., capping legal magazines at 10 rounds instead of 15.
“I like our odds under intermediate scrutiny based on the record here and what’s happened around the country,” Olsen said, but he urged the court to keep its analysis to the Colorado constitutional right to bear arms.
— Doug Chartier