Litigation Highlight: Tenth Circuit Panel Upholds Colorado Minimum Age to Purchase Law

On November 5, a Tenth Circuit panel upheld a Colorado law that sets 21 as the minimum age for firearm purchases against Second Amendment challenge.  The decision in Rocky Mountain Gun Owners v. Polis, which was unanimous in the result, is notable because of the methodology the panel used.  Rather than rely on historical analogues, the judges held that an age-related purchasing restriction is outside the textual scope of the Second Amendment at the threshold first step and relied heavily on the Supreme Court’s prior endorsement of “laws imposing conditions and qualifications on the commercial sale of arms” as “presumptively lawful.”

The challenged Colorado statutes, which were enacted in 2023, govern both private sales and sales through licensed dealers.  The state makes any such transaction subject to a 21-year purchaser age minimum.  In other words, it is a crime for anyone under 21 to purchase a firearm and for any gun dealer or seller to “make or facilitate” a sale to someone under the age of 21.  The law applies to both handguns and long guns, and it incudes exceptions for active-duty military and law enforcement officers.  Colorado does not prohibit 18-to-20-year-olds from possessing guns; rather, these young adults may receive guns by gift, inheritance, or through other non-sale transfers.[1]  A district court enjoined the law shortly before it was set to go into effect and denied a request to stay that ruling pending appeal.

After determining that at least one plaintiff had standing to challenge the restriction, the panel outlined the Bruen framework and the threshold textual step of determining whether the regulated conduct is protected by the Second Amendment.  The panel found initially that the plaintiff with standing was part of the “people” with the right to keep and bear arms and that the plaintiff intended to purchase a protected “arm.”  However, the panel then noted the Supreme Court’s assessment in Heller that certain types of regulations are “presumptively lawful”—and it placed this inquiry in Bruen “step one,” implying that at least some of these laws simply don’t touch on “keeping and bearing” and thus don’t implicate protected conduct.  While noting that Heller’s “presumptively lawful” paragraph was dicta, the panel nevertheless found itself “bound by Supreme Court dicta almost as firmly as by the Court[’s] outright holdings.”

In Heller, the Court endorsed “laws imposing conditions and qualifications on the commercial sale of arms.”  Here, the panel determined that “a presumption that laws imposing conditions and qualifications on the commercial sale of arms are lawful extends equally to laws imposing conditions and qualifications on the commercial purchase of arms.”  The panel observed that, by placing the inquiry at step one, it was articulating a more administrable approach, avoiding uncertainties about whether commercial restrictions are in fact historically longstanding, and declining to take “an expansive view of the text to infer concomitant rights that are not present in the language of the Second Amendment.”  Alternatively, the panel noted that Colorado’s law would be presumptively constitutional under the Bruen court’s positive assessment of shall-issue licensing laws because it is “a straightforward regulatory measure aimed to ensure that firearms are sold to law-abiding, responsible individuals,” requires no discretion to implement, and there is no evidence that the restriction has been put toward abusive ends by the state.  The only discretionary aspect contained within the law, the panel noted, is the decision to set the minimum purchase age at 21 rather than 18—and the panel found that decision consistent with both scientific evidence on brain development and historical regulatory practice.

In a concurrence, Judge Carolynn McHugh wrote that she “would instead consider presumptively lawful regulatory measures at Bruen step two, after there has been a determination that the Second Amendment’s plain text covers the proposed conduct.”  In contrast to the panel majority, Judge McHugh would view Bruen as enacting a series of burden-shifting steps with two separate presumptions.  If the plain text covers the conduct,

the parties would proceed to step two with a presumption of unconstitutionality.  But, at step two, if the government showed that [the law falls within a presumptively lawful category] and that the regulation is longstanding, the government would earn a presumption of lawfulness that rebuts the presumption of unconstitutionality.

Here, Judge McHugh would have found first “that purchasing firearms is a necessary concomitant of the right to ‘keep and bear Arms.’”  While this creates a presumption of unconstitutionality, she would have then found that the regulation falls within a Heller-endorsed category and is longstanding because it “is consistent with laws that existed before the early twentieth century.”  In other words, Judge McHugh’s approach appears to lower slightly the historical bar only for those laws that fall within Heller’s presumptively-lawful categories.  Judge McHugh would not have consulted scientific or empirical evidence about youth brain development or firearm use, finding that this veered too far into the means-end scrutiny that Bruen disapproves.

RMGO is a fascinating decision, as both the majority and dissent take paths that are relatively unique in age-restriction litigation post-Bruen.  The majority’s approach is somewhat unsatisfying to me because a purchase ban for an entire age group does not appear to be the type of presumptively lawful “commercial restriction” the Supreme Court had in mind in Heller (as opposed to background checks, for example, which impose a burden on the process but do not outright prohibit purchases by any one category or group of people).  By contrast, Judge McHugh’s concurrence lays out an interesting path forward for the Heller categories, dicta which has bedeviled lower-court judges especially since Bruen was decided in 2022.  Putting a thumb on the scale by relaxing the requirement for a Founding Era historical analogue, in these cases only, might be one method by which to square Heller’s endorsement of seemingly ahistorical laws with Bruen’s history-focused test.  For example, it could be that the felon-in-possession law is “longstanding” because its initial iteration is nearly 100 years old—even if it’s not rooted in Founding Era practice.

RMGO also creates something of a circuit split with decisions from the Third and Eighth Circuits invalidating age restrictions.[2]  That said, because RMGO focuses so heavily on the commercial aspect of the Colorado law, it could depart from decisions striking down 18-to-20 carry bans in a way that is not necessarily inconsistent.  It’s possible to imagine a world where courts say that it is constitutional for a state to ban that age group from purchasing firearms but not possessing them or carrying them in public (the Minnesota and Pennsylvania restrictions at issue in Worth and Lara deal with public carry only).  By contrast, the en banc Eleventh Circuit is set to rule on a challenge to a very similar Florida age restriction that covers only firearm purchases.  If the Eleventh Circuit invalidates the law (which a panel earlier upheld), the case for Supreme Court intervention becomes much stronger.