Rocky Mountain Gun Owners, a Colorado nonprofit corporation; National Association for Gun Rights, Inc., a Virginia nonprofit corporation; John A. Sternberg; and DV-S, LLC, a Colorado limited liability company, d/b/a Alpine Arms, Plaintiffs-Appellants,
John W. Hickenlooper, in his official capacity as Governor of the State of Colorado, Defendant-Appellee
and County of Denver District Court No. 13CV33879. Honorable
John W. Madden, IV, Judge.
Law Office, Barry K. Arrington, Denver, Colorado, for
H. Coffman, Attorney General, Frederick R. Yarger, Solicitor
General, Matthew D. Grove, Assistant Solicitor General,
Denver, Colorado, for Defendant-Appellee.
Paul Lawrence, LLP, Martha M. Tierney, Denver, Colorado;
Katten Muchin Rosenman, LLP, Jonathan K. Baum, Mark T. Ciani,
Chicago, Illinois, for Amicus Curiae Law Center to Prevent
Modified On the Court's Own Motion
[¶1] Plaintiffs, Rocky Mountain Gun Owners;
National Association for Gun Rights, Inc.; John A. Sternberg;
and DV-S, LLC (collectively, plaintiffs), appeal the district
court's judgment dismissing their complaint for failure
to state a claim against defendant, John W. Hickenlooper, in
his official capacity as the Governor of Colorado (the
Governor). We affirm in part, reverse in part, and remand the
case for further proceedings.
Background and Procedural History
[¶2] In 2013, the Colorado General Assembly
enacted gun control legislation when it passed House Bills
13-1224 and 13-1229. House Bill 13-1224 added three criminal
statutes, sections 18-12-301, 18-12-302, 18-12-303, C.R.S.
2015 (collectively, H.B. 13-1224), which banned the sale,
possession, and transfer of " large-capacity ammunition
magazines." House Bill 13-1229 added or amended sections
13-5-142, 13-5-142.5, 13-9-123, 13-9-124, 18-12-101,
18-12-103.5, 18-12-112, and 18-12-202, C.R.S. 2015
(collectively referred to as H.B. 13-1229), which expanded
mandatory background checks to recipients of firearms in some
[¶3] Plaintiffs filed a complaint
challenging the constitutionality of the two bills.
Specifically, plaintiffs alleged that (1) H.B. 13-1224 and
H.B. 13-1229 violate the Colorado Constitution, article II,
section 13, which affords individuals the right to bear arms;
(2) H.B. 13-1229 is an unconstitutional delegation of
executive and legislative authority; and (3) H.B. 13-1229
violates the due process and equal protection provisions of
the Colorado Constitution.
[¶4] The district court concluded that most
of the plaintiffs had standing to challenge the laws, but
that they had failed to state a claim for relief, and
therefore granted the Governor's C.R.C.P. 12(b)(5) motion
to dismiss. In reaching its conclusion, the district court
analyzed the House Bills under a " reasonable exercise
of police powers" test rather than a higher standard of
review such as intermediate or strict scrutiny.
Standard of Review
[¶5] We review a trial court's order
granting a motion to dismiss de novo. BRW, Inc. v.
Dufficy & Sons, Inc., 99 P.3d 66, 71 (Colo. 2004). A
motion to dismiss for failure to state a claim tests the
complaint's sufficiency. C.R.C.P. 12(b)(5); Lobato v.
State, 218 P.3d 358, 367 (Colo. 2009). In reviewing a
motion to dismiss, we accept all assertions of material fact
in the complaint as true and view the allegations in the
light most favorable to the plaintiff. BRW, Inc., 99
P.3d at 71. A court cannot grant a motion to dismiss for
failure to state a claim unless no set of facts can prove
that the plaintiff is entitled to relief. Lobato,
218 P.3d at 367.
[¶6] In reviewing a trial court's
judgment on the constitutionality of a statute or ordinance,
we review the court's legal conclusions de novo. Town
of Dillon v. Yacht Club Condos. Ass'n, 325 P.3d
1032, 2014 CO 37, ¶ 22.
Plaintiffs' Challenge to H.B. 13-1224
[¶7] Plaintiffs contend that the district
court erred in dismissing under C.R.C.P. 12(b)(5) their claim
that H.B. 13-1224 violated the Colorado Constitution's
right to bear arms clause. We agree.
[¶8] H.B. 13-1224 provides that " on
and after July 1, 2013, a person who sells, transfers, or
possesses a large-capacity magazine commits a class 2
misdemeanor." § 18-12-302(1)(a). "
Large-capacity magazine" is defined as " [a] fixed
or detachable magazine, box, drum, feed strip, or similar
device capable of accepting, or that is designed to be
readily converted to accept, more than fifteen rounds of
ammunition." § 18-12-301(2)(a)(I).
[¶9] The statute also has a "
grandfather provision" which allows an individual to
possess a large-capacity magazine if that individual (1)
owned the large-capacity magazine on July 1, 2013; and (2)
maintained continuous possession of it. §
[¶10] The statute does not apply to a
variety of individuals working in their official capacity,
including large-capacity magazine manufacturers or dealers,
as well as certain specified individuals, government
agencies, and armed forces personnel. See §
The Standard Under Which a Claimed Violation of
Colorado's Constitutional Right to Bear Arms is
[¶11] Article II, section 13 of the Colorado
Constitution provides in pertinent part: " The right of
no person to keep and bear arms in defense of his home,
person and property, or in aid of the civil power when
thereto legally summoned, shall be called in question . . .
[¶12] In Robertson v. City & County of
Denver, 874 P.2d 325 (Colo. 1994), the supreme court
upheld a city ordinance banning assault weapons against the
claim that the ordinance violated article II, section
13's right to bear arms. In doing so, the supreme court
noted that the district court had needlessly determined that
article II, section 13 established a " fundamental"
While it is clear that this right is an important
constitutional right, it is equally clear that this case does
not require us to determine whether that right is
fundamental. On several occasions, we have considered article
II, section 13, yet we have never found it necessary to
decide the status accorded that right. Rather, we have
consistently concluded that the state may regulate the
exercise of that right under its inherent police power so
long as the exercise of that power is reasonable.
. . . .
As [prior] cases make clear, when confronted with a challenge
to the validity of a statute or ordinance regulating the
exercise of the right to bear arms guaranteed under article
II, section 13 of the Colorado Constitution, a reviewing
court need not determine the status of that right. Rather,
the question in each case is whether the law at issue
constitutes a reasonable exercise of the state's police
This approach is in accordance with the vast majority of
cases construing state constitutional provisions which
guarantee an individual's right to bear arms in
Id. at 328-29.
[¶13] The district court in the present case
used the Robertson " reasonable exercise of
police power" standard to evaluate plaintiffs'
challenge to H.B. 13-1224. Plaintiffs assert, however, that
that standard has been effectively overruled by two recent
United States Supreme Court cases addressing the right to
bear arms protected by the Second Amendment to the United
States Constitution: District of Columbia v. Heller,
554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and
McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct.
3020, 177 L.Ed.2d 894 (2010).
[¶14] In Heller, the Supreme Court
struck down as unconstitutional a ban on the possession of
handguns, reasoning that " [u]nder any of the standards
of scrutiny that we have applied to enumerated constitutional
rights, banning [handguns] from the home . . . would fail
constitutional muster." Id. at 628-29 (footnote
omitted). The Court concluded that the Second Amendment
" confer[s] an individual right to keep and bear
arms,"  which, while not absolute, should be
afforded no lesser protection than other fundamental rights.
Id. at 595.
[¶15] In McDonald, the Court
considered similar laws to the District of Columbia's ban
in Heller. McDonald, 561 U.S. at 750. But the city
of Chicago argued that its laws were constitutional because
the Second Amendment did not apply to the States.
Id. In reversing the United States Court of Appeals
for the Seventh Circuit, the Court held " that the Due
Process Clause of the Fourteenth Amendment incorporates the
Second Amendment right recognized in Heller."
Id. at 791. " [I]t is clear that the Framers
and ratifiers of the Fourteenth Amendment counted the right
to keep and bear arms among those fundamental rights
necessary to our system of ordered liberty."
Id. at 778. Thus, the Court rejected the city's
invitation to treat the right recognized in Heller
" as a second-class right, subject to an entirely
different body of rules than the other Bill of Rights
guarantees that we have held to be incorporated into the Due
Process Clause." Id. at 780.
[¶16] Plaintiffs assert that (1)
Heller and McDonald established something
that the supreme court in Robertson rejected, that
is, that the right to bear arms is " fundamental"
in nature; and, consequently, (2) the validity of a
restriction on that right cannot be analyzed under
Robertson 's " reasonable exercise of
police power" test -- instead, it must be analyzed under
the highly exacting " strict scrutiny" standard of
review. See Evans v. Romer, 882 P.2d 1335,
1341 n.3 (Colo. 1994), aff'd, 517 U.S. 620, 116
S.Ct. 1620, 134 L.Ed.2d 855 (1996). Under the strict scrutiny
standard, " [a] legislative enactment which infringes on
a fundamental right . . . is constitutionally permissible
only if it is ' necessary to promote a
compelling state interest' and does so in the
least restrictive manner possible." Id. at 1341
(quoting Dunn v. Blumstein, 405 U.S. 330, 342, 92
S.Ct. 995, 31 L.Ed.2d 274 (1972)).
[¶17] We are not persuaded.
[¶18] In the first instance, we do not read
the part of Robertson quoted at length above as
rejecting the idea that the right provided by article II,
section 13 is fundamental; rather, we read that part as
saying that, whether the right is fundamental or not, a
restriction on the right is nonetheless subject to review
under a " reasonable exercise of police power"
test. 874 P.2d at 329.
[¶19] In the second instance, we would note:
o Not all restrictions on fundamental rights are analyzed
under a strict scrutiny standard of review. See,
e.g., Heller v. District of Columbia, 670 F.3d
1244, 1256, 399 U.S.App.D.C. 314 (D.C. Cir. 2011) (" The
[Supreme] Court has not said, however, and it does not
logically follow, that strict scrutiny is called for whenever
a fundamental right is at stake." ); State v.
Cole, 2003 WI 112, 264 Wis.2d 520, 665 N.W.2d 328, 336
(Wis. 2003) (" This court has previously recognized that
it need not apply strict scrutiny every time a governmental
burden upon fundamental rights is implicated." );
see also Denver Publ'g Co. v. City of
Aurora, 896 P.2d 306, 311 (Colo. 1992) (holding that
" regulations that are unrelated to the content of
speech are subject to an intermediate level of scrutiny"
(quoting Turner Broad. Sys., Inc. v. Fed. Commc'n
Comm'n, 512 U.S. 622, 642, 114 S.Ct. 2445, 129
L.Ed.2d 497 (1994) (plurality opinion))); Watso v. Colo.
Dep't of Social Servs., 841 P.2d 299, 307 (Colo.
1992) (noting that the right to parent is "
fundamental" but applying a balancing test).
o In neither Heller nor McDonald did a
majority of the United States Supreme Court identify a
particular standard under which the validity of restrictions
on the Second Amendment's right to bear arms would be
o Other states in which the right to bear arms is recognized
as a " fundamental" right under their state
constitutions analyze restrictions on that right under the
Robertson " reasonable exercise of police
power" test. See Mosby v. Devine, 851
A.2d 1031, 1044-45 (R.I. 2004)
[¶20] Ultimately, we are mindful that the
instant case does not present us with a challenge to H.B.
13-1224 under the Second Amendment to the United States
Constitution. Instead, it presents us with a challenge based
on the Colorado Constitution, the construction and
application of which are matters peculiarly within the
province of the Colorado Supreme Court to determine.
See People v. Schwartz, No. 291313, 2010 WL
4137453, at *3 (Mich. Ct.App. Oct. 21, 2010) (unpublished
opinion) (" The recent decisions by the Supreme Court of
the United States do not implicate the proper interpretation
and scope of this state's guarantee of the right to bear
arms; the courts of this state are free to interpret our own
constitution without regard to the interpretation of
analogous provisions of the United States Constitution."
[¶21] The supreme court has determined that,
under the state constitution, a restriction on the right to
bear arms will be upheld if it is shown to be a "
reasonable exercise of the state's police power."
Robertson, 874 P.2d at 329. We are bound by the
supreme court's precedent in this regard. There may be
good reason for the supreme court to alter that precedent in
the future, but we are not at liberty to do so. See
People v. Novotny, 320 P.3d 1194, 2014 CO 18, ¶
26 (The supreme court " alone can overrule [its] prior
precedents concerning matters of state law." ); see
also Rodriguez de Quijas v. Shearson/Am. Express,
Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526
(1989) (" If a precedent of this Court has direct
application in a case, yet appears to rest on reasons
rejected in some other line of decisions, the Court of
Appeals should follow the case which directly controls,
leaving to this Court the prerogative of overruling its own
[¶22] Consequently, we cannot conclude that
the district court erred in using the Robertson
" reasonable exercise of police power" test to
assess the validity of H.B. 13-1224. Cf. People
v. Sandoval, 2016 COA 14, ¶ 25 (holding that "
article II, section 13 [of the state constitution] does not
protect an individual's right to possess a short shotgun
for self-defense because the state's prohibition of short
shotguns is a reasonable exercise of its police power"
The Application of the Standard
[¶23] We can -- and do -- conclude, however,
that the district court erred in the manner in which it
applied the Robertson test in this case. When viewed
in the light most favorable to plaintiffs, their allegations
stated a claim for relief attacking the constitutionality of