Rocky Mountain Gun Owners, a Colorado nonprofit corporation; National Association for Gun Rights, Inc., a Virginia nonprofit corporation; and John A. Sternberg, Plaintiffs-Appellants,
John A. 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.
Arrington Law Office, Barry K. Arrington, Denver, Colorado,
Cynthia H. Coffman, Attorney General, Matthew D. Grove,
Assistant Solicitor General, Kathleen Spalding, Senior
Assistant Attorney General, Stephanie Lindquist Scoville,
Senior Assistant Attorney General Denver, Colorado, for
Greenlee, Denver, Colorado, for Amici Curiae Second Amendment
Foundation and Millennial Policy Center.
B. Kopel, Denver, Colorado, for Amici Curiae Colorado Law
Enforcement Firearms Instructors Association; Sheriffs Chad
Day, Shannon K. Byerly, Steve Reams, and Sam Zordel; and the
1 Plaintiffs, Rocky Mountain Gun Owners and National
Association for Gun Rights (Colorado and foreign nonprofit
corporations, respectively) and John A. Sternberg, appeal a
district court judgment upholding the constitutionality,
under the right to bear arms clause of the Colorado
Constitution, of statutes prospectively prohibiting the sale,
transfer, or possession of large-capacity magazines (LCM).
See §§ 18-12-301, -302, and -303, C.R.S.
2018. Because we conclude that the LCM restrictions are a
reasonable exercise of the state's police power, we
2 In 1999, two shooters shot and killed thirteen people and
wounded twenty-one others at Columbine High School. See
Harris v. Denver Post Corp., 123 P.3d 1166, 1168 (Colo.
2005). The shooters used LCMs with capacities of twenty-eight
or more rounds.
3 In 2012, a single shooter entered a movie theater in Aurora
with, among other weapons, an AR-15 assault rifle with an
LCM. With the rifle, he was able to shoot approximately 1.6
bullets per second, and he fired sixty-five rounds in forty
seconds before the gun jammed. Ultimately, the shooter killed
twelve people and injured dozens more.
4 In the wake of that shooting, the Colorado General Assembly
passed House Bills 13-1224 (HB 1224), limiting LCMs for
firearms, and 13-1229 (HB 1229), expanding mandatory
background checks for firearm sales and transfers. HB 1224
added three criminal statutes, sections 18-12-301, 18-12-302,
and 18-12-303 (collectively, the statutes), which generally
define an LCM as a magazine able to hold more than fifteen
rounds of ammunition and provide, with exceptions, criminal
penalties for their sale, possession, and transfer after July
5 Plaintiffs challenged the facial constitutionality of both
bills. As relevant here, plaintiffs alleged that the statutes
violate the Colorado Constitution, article II, section 13,
which affords individuals the right to keep and bear arms.
They did not contend that the statutes violated their rights
under the Second Amendment to the United States
Constitution. The district court granted the
Governor's C.R.C.P. 12(b)(5) motion to dismiss the
complaint for failure to state a claim upon which relief
could be granted, and plaintiffs appealed.
6 A division of this court affirmed the dismissal with
respect to HB 1229. But the division concluded that the
district court had erred in dismissing the plaintiffs'
claim that HB 1224 violated the Colorado Constitution.
Rocky Mountain Gun Owners v. Hickenlooper, 2016 COA
45M (Rocky Mountain Gun I). The division concluded
that a restriction on the right to bear arms is
constitutional, under the Colorado Constitution, if it is
shown to be a "reasonable exercise of the state's
police power." Id. at ¶ 21. Because
whether challenged legislation is a reasonable exercise of
the state's police power is a mixed question of fact and
law, the division remanded the claim with instructions that
it should be allowed to go forward for "a factual
inquiry into the reasonableness of the limits"
prescribed by the bill. Id. at ¶¶ 30-31.
7 On remand, the district court held a weeklong bench trial.
After consideration of the evidence, arguments presented, and
the relevant legislative history, the court issued a lengthy
order. It ruled, in part, as follows:
[P]rohibitions on the possession, sale, or transfer of LCMs
are found to be a reasonable exercise of the police power
designed to address a specific and valid governmental concern
regarding the health, safety, and welfare of people in
Colorado, and the 15 round limit was not only based on a
valid, reasonable safety concern, the limit is, itself,
reasonable and does not impose on the constitutionally
protected right to keep and bear arms for self-defense or
defense of home or property.
[The statutes do] not inhibit the use of a firearm for
self-defense or defense of home or property but serve to
reduce the number of victims in mass shootings by limiting
the number of rounds that can be fired before the shooter has
to reload. As such, the statute is a reasonable exercise of
the police power and is constitutional.
8 As relevant here, the district court further found that
plaintiffs' assertion that the statutes make "almost
all magazines and semiautomatic weapons illegal" turned
on an unreasonable reading of the statutory definition of
LCMs. And it rejected plaintiffs' argument that the
statutes were unreasonable under a historic interpretation of
the Colorado Constitution because "such history and
traditions are not pertinent to determining whether [the
statutes] comport with the rights guaranteed" by
article II, section 13.
9 Plaintiffs contend that the district court erred when it
found that the statutes are constitutional. They disagree
with numerous aspects of the court's analysis but advance
two primary contentions. First, they argue that the
prospective LCM ban should be subject to a heightened
standard of review. And second, they argue that the statutes
should be interpreted as unconstitutionally broad because
they ban "an overwhelming majority of magazines."
10 We first address the standard of review, and we apply the
"reasonable exercise test" to conclude that the
statutes are constitutional and not overbroad. In doing so,
we review the district court's judgment as a mixed
question of law and fact, deferring to the court's
findings of fact unless they are clearly erroneous, and
reviewing the court's legal conclusions about
constitutionality de novo. Town of Dillon v. Yacht Club
Condos. Home Owners Ass'n, 2014 CO 37, ¶ 22. We
also respond to plaintiffs' additional arguments and
their challenges to various factual findings by the district
Constitutional and Statutory Law
11 Article II, section 13 of the Colorado Constitution
provides, both as originally written in 1876 and today, that
"[t]he 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
into question; but nothing herein contained shall be
construed to justify the practice of carrying concealed
12 As relevant here, section 18-12-301(2)(a)(I) defines an
LCM 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." (Emphasis
13 Section 18-12-302(1)(a) prescribes the criminal charges,
varying between a class 2 misdemeanor and a class 6 felony,
for "a person who sells, transfers, or possesses"
an LCM after July 1, 2013. The statute also contains
exceptions. Section 18-12-302(2) (the grandfather exception)
expressly permits possession by a person who (1) owns the LCM
on July 1, 2013; and (2) maintains continuous possession of
the LCM. And ...