In setback to gun advocates, Colorado’s large-capacity magazine ban survived yet another court challenge
November 24, 2018
Colorado's large-capacity magazine ban survived yet another legal challenge by gun advocates in a recent decision by the Colorado Court of Appeals.
The 2012 Aurora theater shooting prompted the state legislature to enact gun control legislation. That legislation, which came in 2013, included two new criminal statutes (1) Colorado Revised Statute § 18-12-302, banning the sale, possession and transfer of certain LCMs that contain more than 15 rounds; and (2) Colorado Revised Statute § 18-12-112, expanding mandatory background checks to some private transfers rather than only commercial purchases. Gun advocates challenged these laws in separate federal and state actions.
The federal case, which challenged the laws under the U.S. Constitution, was decided first in 2014. That decision, known as Colo. Outfitters Ass'n v. Hickenlooper, considered both offensive and defensive implications of 18-12-302. It determined LCMs are mostly used offensively for unlawful purposes, such as mass shootings, and that the law did not seriously diminish the ability of persons to defend themselves. The decision therefore upheld the law as constitutional. On appeal in 2016, the Tenth Circuit vacated the decision by holding that the gun advocates had not established standing to challenge the laws. Thus, the laws survived challenge in the federal court.
The state case, known as Rocky Mountain Gun Owners v. Hickenlooper, challenged the laws under the Colorado Constitution. The trial court initially dismissed challenges to the laws. On appeal in 2016, the Court of Appeals agreed that the challenge to 18-12-112, the background check statute, should have been dismissed. However, it remanded the issue concerning 18-12-302, the LCM statute, to the trial court for a determination whether the law was a reasonable exercise of the legislature's police power (i.e. its power to adopt laws for the health, safety and welfare of the citizens). There is a trend in Colorado toward upholding gun restrictions under the police power, such as in a case called Robertson from 1994 that upheld an assault weapons ban. The trial court here conducted a one-week trial and ultimately determined that 18-12-302 was constitutional. That issue was appealed again and just decided by the Court of Appeals in October.
Under Robertson, the state may regulate the exercise of the right to bear arms under its inherent police power so long as the exercise of that power is reasonably related to a legitimate government interest, not overbroad, and does not sweep constitutionally protected activities within its reach. Here, the court walked through these requirements as they apply to 18-12-302 and determined that the law should be upheld. At the outset, the court determined that the law was enacted for the purpose of reducing the number of people killed in mass shootings and that this is a legitimate government interest. The court then considered a number of statistics found in the trial court to determine that the law was reasonably related to its purpose. In general, these statistics showed that the use of LCMs is correlated to the number of people who die in a mass shooting and that LCMs are used in about half of mass shootings and increasing. Finally, the court found that the law was not overbroad because, contrary to assertions by the gun advocates, it does not ban virtually all magazines or unreasonably inhibit the right to self-defense. The evidence showed that most people simply display a gun without firing or fire only a few rounds in self-defense and therefore do not need LCMs.
The courts have repeatedly upheld LCM bans and that doesn't seem likely to change. Nonetheless, the gun advocates have one more shot in the courts, if they take it, of convincing the Colorado Supreme Court to hear the case.
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Noah Klug is owner of The Klug Law Firm, LLC, in Summit County, Colorado. He may be reached at 970-468-4953 or Noah@TheKlugLawFirm.com.
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