In 2013, Colorado passed into law a new gun regulation that prohibits the sale, transfer, or possession of large-capacity magazines (LCMs) acquired after July 1, 2013. The law defines LCMs as those ammunition feeding devices that accept more than 15 rounds. A group of gun owners and gun-rights organizations challenged the law as a violation of Colorado’s state constitutional arms-right provision, but did not raise a Second Amendment challenge. Earlier this week, in Rocky Mountain Gun Owners v. Polis, the Colorado Supreme Court upheld the law.
The case presents an interesting case study in state constitutional rights adjudication and how the Second Amendment’s substantive standards affect (or, in this case, don’t) state interpretation of similar provisions. I wrote last week about Ilan Wurman’s suggestion of a police power defense to a Second Amendment challenge; this case is in a long line of state cases showing what that could look like. The Colorado Constitution provides: “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; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.” Although the language of that provision appears even stronger than the federal Constitution’s, the state has long interpreted it more flexibly, consistent with how other states have applied their counterpart arms provisions.
The plaintiffs argued that the statute’s inclusion of magazines not only that could hold more than 15 rounds, but also those that were “designed to be readily converted” to do so meant it swept nearly all magazines into its purview. And that, the plaintiffs claimed, meant “it effectively bans most functional firearms and thus violates Coloradans’ right to keep and bear arms under the state constitution.” Both the trial court and court of appeals rejected the constitutional challenge. The Supreme Court: (1) rejected the notion that Heller or McDonald controlled interpretation of the state right, (2) reaffirmed its “reasonable exercise” test as different than rational basis review, and (3) concluded that the statute passed constitutional muster.
First, it declared that Heller and McDonald did not require the state court to jettison its approach to questions of state constitutional law. (It was also skeptical of the plaintiff’s suggestion that there is a “common lawful use” test lurking in Heller.) Just because the federal Constitution sets a floor for the rights that citizens have does not mean that state constitutional rights have to be as broad as the federal one. “When interpreting our own constitution, we do not stand on the federal floor; we are in our own house.” And the Court found the reasons for adopting federal jurisprudence under similar state constitutional provisions to be lacking in this context.
Second, the Court reaffirmed that the Colorado arms-right is governed by a “reasonable exercise” test. In the course of doing so, the Court also disapproved of a lower court statement that the state right does not count as “fundamental” because, according to the Court, whether the right is fundamental or not, the reasonable exercise test governs. Whatever the status of the right, the Court “effectively rejected the importation of federal tiers of scrutiny into” its arms-right jurisprudence. The Court thus went on to explain the distinction between rational basis review and its reasonable exercise test. The rational-basis limitation on the government’s exercise of its police power asks only whether state action bears a rational relationship to a legitimate government interest. That interest can be hypothetical and wholly apart from what actually motivated the legislature. On the other hand, the reasonable exercise test for the arms-right imposes a substantive limitation on otherwise reasonable state legislation. The “reasonable exercise test—unlike ordinary rational basis review—demands not just a conceivable legitimate purpose but an actual one.” In addition, “it does not tolerate government enactments that have either a purpose or effect of rendering the right to bear arms in self-defense a nullity.” “In short,” the Court concludes, “the reasonable exercise test permits restrictions that may burden the right to bear arms but that still leave open ample means to exercise the core of that right; on the other hand, the test forbids restrictions that are so arbitrary or onerous as to amount to a denial of the right.” (Emphases added.)
Finally, the Court concluded that the LCM ban satisfied the reasonable exercise test. It “constitutes a reasonable exercise of the police power and does not work a nullity of the right to bear arms in defense of home, person, or property.” On the first score, the Court credited the trial court’s finding that the law was intended to reduce the harm from mass shooting incidents. And the law was reasonably related to that goal because the evidence at trial showed that use of LCMs in mass shootings increases injuries and deaths. On the second point, the Court determined that the law did not render the arms-right a nullity. It rejected the plaintiff’s interpretation of the statute as applying to nearly all magazines, highlighting the “designed to” limitation that encompassed only magazines with more than 15 rounds or those that were designed to be converted to accept more. “[T]he overwhelming evidence [at trial] demonstrated that limiting magazine capacity to fifteen rounds does not significantly interfere with the core of Coloradans’ article II, section 13 right to bear arms in self-defense.” Many weapons, after all, remained available for self-defense. And LCMs acquired before July 2013 were grandfathered in.
The Court’s decision in Rocky Mountain Gun Owners was issued with no noted dissents. It is consistent with numerous federal court rulings that uphold LCM bans under the Second Amendment. And it shows that, despite the successes of the gun-rights movement, the right to keep and bear arms is (still) not an unlimited one.