On April 27, 2023, Governor Jared S. Polis of Colorado signed Senate Bill 23-169 into law. The bill increased the required legal age of a person to purchase firearms from 18 to 21, preventing people under 21 from legally purchasing firearms.
Exceptions were provided for people in the United States armed forces or peace officers. The bill was challenged by the Rocky Mountain Gun Owners (RMGO) with two individuals plaintiffs in April, then amended in May. The RMGO and other plaintiffs asked for a preliminary injunction to prevent enforcement of the statute while the case is undergoing adjudication on July 7, 2023. Judge Philip A. Brimmer of the United States District Court for the District of Colorado issued the preliminary injunction on August 7, 2023. Judge Brimmer ruled the right to keep and bear arms necessarily included the right to acquire arms. He concluded there was no significant historical record of United States governments prohibiting 18-20-year-old people from acquiring arms. From the opinion:
Several courts have ruled that the right to keep arms necessarily includes a right to acquire arms. See, e.g., Teixeira v. County of Alameda, 873 F.3d 670, 677 (9th Cir. 2017) (“the core Second Amendment right to keep and bear arms for self-defense wouldn’t mean much without the ability to acquire arms” (quotations and citation omitted)); Ezell v. City of Chicago, 651 F.3d 684, 704 (7th Cir. 2011) (“The right to possess firearms for protection implies a corresponding right to acquire and maintain proficiency in their use.”); United States v. McNulty, — F. Supp. 3d. —-, 2023 WL 4826950, at *4 (D. Mass. July 27, 2023) (“The text of the Second Amendment itself also suggests that the right to ‘keep’ firearms necessarily includes an ability to purchase, sell, or otherwise transfer firearms in order to keep oneself properly armed.”); Renna v. Bonta, 2023 WL 2846937, at *7 (S.D. Cal. Apr. 3, 2023)(“t he right to keep arms, necessarily involves the right to purchase them.”), appeal filed, No. 23-55367 (9th Cir. 28 Apr. 20, 2023).
The Court agrees with the Individual Plaintiffs that the Second Amendment includes the right to acquire firearms and, therefore, protects the Individual Plaintiffs’ proposed conduct. See Teixeira, 873 F.3d at 677; Ezell, 651 F.3d at 704. For purposes of a preliminary injunction, the Individual Plaintiffs have sufficiently demonstrated a likelihood of success in showing their proposed conduct is covered by the plain text of the Second Amendment.
The State of Colorado is prohibited from enforcing the statute while the case is being adjudicated.
Judge Brimmer writes of a crucial distinction on what is acceptable regulation of the commercial sale of firearms. The regulation of commercial sales is on the seller of the firearms, not on the buyer of the firearms. From the opinion:
Second, the Governor fails to show that SB23-169 falls into the category of commercial regulations described by Heller. Regulations of the commercial sale of arms have been described as “condition[s] or qualification[s]” that “affect[] only those who regularly sell firearms.” United States v. Hosford, 843 F.3d 161, 166 (4th Cir. 2016). SB23-169 does not base its prohibitions on 18-to-20 year olds because 18-to-20 year olds, as a group, regularly sell firearms. Rather, SB23-169 categorically bans an entire group of law-abiding citizens from purchasing firearms based on age. Additionally, the Court is not persuaded that the pre-Bruen cases the Governor cites, see Docket No. 28 at 9, suggest a different outcome for age-based firearm restrictions17 because these cases presume the lawfulness of the category of restriction and, as a result, do not follow the test for Second Amendment cases discussed in Bruen.
Much of the current law on the United States regulation of the commercial sale of firearms affects the purchasers, not the sellers. The reasoning shown here seems to call into question much of the National Firearms Act and the Gun Control Act of 1968.
The opinion shows a critical understanding of standing and irreparable harm as it relates to constitutional rights. This understanding is in alignment with previous cases which found a violation of constitutional rights alone constitutes irreparable harm. From the opinion:
Here, because SB23-169 likely causes a violation of the Individual Plaintiffs’ individual constitutional rights, see Aposhian, 958 F.3d at 990 (observing that “our cases finding that a violation of a constitutional right alone constitutes irreparable harm are limited to cases involving individual rights, not the allocation of powers among the branches of government”), resulting in damages that are potentially inadequately remedied by money and “difficult[ to] calculat[e],” Free the Nipple-Fort Collins, 916 F.3d at 806, the Court finds the Individual Plaintiffs have shown irreparable injury.
In the recent decision in the Ninth Circuit for the District of Hawaii, Judge Leslie E. Kobayhashi reaches a similar conclusion. If this reasonable understanding of irreparable harm from violations of constitutional rights becomes the standard in Second Amendment cases, as seems likely, lawsuits against the violation of Second Amendment rights become far easier to prosecute.
About Dean Weingarten:
Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.
