DENVER — Colorado's ban on large-capacity gun magazines is constitutional.
The Colorado Supreme Court issued its ruling Monday morning, ending the seven-year challenge by Loveland-based Rocky Mountain Gun Owners.
In 2013, one year after the Aurora Theater Shooting, Colorado's democratic-controlled legislature passed a number of gun reform bills, including House Bill 13-1224, which banned the sale and transfer of magazines that hold more than 15 rounds of ammunition. Then-Gov. John Hickenlooper signed the bill into law, which took effect July 1, 2013.
Rocky Mountain Gun Owners sued in state court, saying it violated the right to bear arms under Colorado's Constitution. Because of that, Monday's ruling is final and cannot be appealed to the United States Supreme Court.
Oral arguments in front of the Colorado Supreme Court took place on Nov. 13.
"We hold that HB 1224 is a reasonable exercise of the police power that has neither the purpose nor effect of nullifying the right to bear arms in self-defense encompassed by article II, section 13 of the Colorado Constitution," the 7-0 ruling concluded.
Rocky Mountain Gun Owners challenged the constitutionality of the magazine ban, but focused on the Article II, Section 13 of the Colorado Constitution, instead of the Second Amendment of the U.S. Constitution.
"Plaintiffs cannot now insist that federal constitutional law controls the analysis of their case," the ruling said. In sum, under article II, section 13 of the Colorado Constitution, the government may regulate firearms so long as the enactment is (1) a reasonable exercise of the police power (2) that does not work a nullity of the right to bear arms in defense of home, person, or property."
In the ruling, the justices also wrote about mass shootings that the large-capacity magazine ban was intended to prevent.
"These statistics have been deeply felt in Colorado, where LCMs played a lethal role in the Columbine and Aurora massacres. Finally, the record supports the trial court’s finding that the pause created by the need to reload or replace a magazine creates an opportunity for potential victims to take life-saving measures. In short, the evidence overwhelmingly demonstrated the reasonableness of the General Assembly’s choice to set a limit on the number of rounds that can be fired before a shooter needs to reload," the ruling stated.
During oral arguments, Barry Arrington, the attorney for Rocky Mountain Gun Owners, challenged the language of the large-capacity magazine ban law as encompassing most gun magazines.
"Large-capacity magazines is actually a political term more than a term of actuality. A lot of these magazines that are banned are the standard capacity that come with these weapons," Arrington said.
According to the law, a large-capacity magazine means, "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."
The ruling by the Colorado Supreme Court compared the definitions of "capable of" and "designed to be."
"That the legislature used the phrase 'capable of accepting,' but immediately thereafter chose the much narrower 'designed to be readily converted to accept' evinces a deliberate variation in meaning. Put differently, it is clear that 'designed to be' must mean something other than merely 'capable of,'" the ruling stated.
Ruling cannot be appealed
Since Rocky Mountain Gun Owners challenged the law under the state's Constitution and not the U.S. Constitution, there can be no appeal.
"The Second Amendment and Article II, Section 13 just use different words, different phrases when they talk about the right to bear arms," said constitutional law attorney Christopher Jackson. "If you bring a claim under both the federal and the state Constitution, then the court might resolve the case on either of those two grounds, but if you limit it to just the state Constitution, then the court has to make a decision on what the state Constitution says."
There were two reasons Rocky Mountain Gun Owners did not challenge this federally, according to Executive Director Dudley Brown.
"The reason we didn't file it in federal court is there was already a federal court lawsuit in 2013," said Brown. "The U.S. Supreme Court was a very different makeup in 2013, and no one had a crystal ball to know what it would look like seven years later, so why would we have pushed it on that front?"
The other lawsuit that Brown referenced was tossed without making it to the U.S. Supreme Court.
"In retrospect, would I have run two cases? Yeah. I don't know how we would have paid for it," said Brown. "Only have so much time, treasure and talents."
He said the seven-year lawsuit cost $210,000 and was paid for with donations from gun owners, which he said, averaged $36.
"To all the conspiracy theorists who say the gun manufacturers did this, they didn't do squat. This was our members and activists," said Brown."If the only fights we ever started were ones we were guaranteed a victory in, we would never start a fight, and sorry, that's not what our members want."
Does ruling matter?
A 9Wants To Know undercover investigation in the fall of 2019 found multiple gun stores throughout Colorado still selling large-capacity gun magazines. Gun stores in Arapahoe, Douglas, El Paso and Larimer counties sold the magazines as "parts kits," which are large-capacity magazines sold in pieces, ready to be assembled after they are purchased.
Our undercover investigation also found two gun stores, one in Weld County and another in El Paso County, selling the large-capacity magazines as though the law did not exist.
"I'm a little stunned by how open it is and how blatantly they're saying, 'You know, this is a stupid law, but this is the way you can get around it,'" Sen. Rhonda Fields, D-Aurora, said in October. Fields sponsored the bill while a member of the House in 2013.
During oral arguments in November, the attorney general's office explained that a parts kit was not what the legislature intended when it passed the law in 2013.
"A reasonable inference of what the legislature was trying to do was target people who sold, in two bags, what would be illegal to sell together," said Solicitor General Eric Olson during the State Supreme Court hearing.
Part of the hearing focused on what the state legislature meant when it defined a large-capacity magazine as "designed to be readily converted to accept more than 15 rounds of ammunition."
"If you walk into a gun store and see two bags, saying buy this one and this one and put them together yourself, and that's what they tell you, that clearly violates the law," Olson said. "To limit the ability of people to obtain these large-capacity magazines, the 'design to be readily converted,' targets the sellers to make sure sellers don't skirt the rule by selling two kits."
The purpose of the hearing was not to determine if parts kits were legal, it was to decide if the state legislature was legal in passing the law in the first place in 2013.
Two sheriffs respond
Justin Smith, Larimer County sheriff, said he was not surprised by the Colorado State Supreme Court’s ruling and hopes a federal court will take up the issue to decide it nationally. However, he said the “partisan” and “poorly written” bill was incomplete.
“Your journalistic work at 9News was able to reveal that in one way, the way in which it was passed, left a lot of openings in it,” Smith said. “In what was legal, what wasn’t.”
9Wants to Know found gun stores in Arapahoe, Douglas, El Paso and Larimer counties sold the magazines as "parts kits," which are large-capacity magazines sold in pieces, ready to be assembled after they are purchased.
Smith said he will not pursue action against stores that sell parts kits. He said the law is difficult to enforce because it’s tough to know when and where someone bought a large-capacity magazine. The law allows them if they were purchased before 2013. And, Smith said the sale of parts kits is legal in his eyes because he’s focused on if there is a “put-together magazine.”
“Really we’re looking at what the law says,” Smith said. “And you find those stores selling that because no one has found that to be in violation of the law. So, again there’s no violation so there’s no reason to get involved.”
Steve Reams, Weld County sheriff, found similar issues with the large-capacity magazine law. He echoed the same sentiments as Smith as to why it’s “unenforceable.”
“There aren’t manufacture dates on magazines, it can be sold as parts and then reassembled,” Reams said. “Because of all of that, the emphasis behind the law is misplaced at best. It really has no effect on the way that we do business.”
The Colorado Attorney General’s office in 2013 gave technical guidance that said the law applied to adjusted magazines.
“To actually convert them to a higher capacity, one must purchase additional equipment or permanently alter their operation mechanically,” John Suthers, former attorney general, said in a July 2013 letter. “Unless so altered, they are not prohibited.”
The guidance did not address parts kits directly, but Suthers said in a May 2013 letter that it would be illegal if the magazine was judged to be “designed to be readily converted to accept more than 15 rounds.”
Reams did not think gun stores would change their behaviors based on the Monday ruling.
“I don’t know if people are taking it seriously or not, but the law didn’t eliminate the ability for people to sell parts kits and that’s what some gun stores are still doing,” Reams said. “And this ruling from the Supreme Court today doesn’t change that.”
He said he would look into an issue if it was brought to his attention, as 9News did with Tacticool Firearms. The gun store offered to sell 9News various AR-15 magazines that hold up to 30 or 60 rounds without disassembling them into parts.
Reams said the shop is out of his jurisdiction in Greeley, but that he spoke with the business owners to straighten out any misconceptions around the law.
“I did interact with the business owners there and we corrected what was their interpretation of my earlier statements and as far as I know they’re doing business accordingly now,” Reams said.
A featured store changes its ways
When 9Wants to Know called Tacticool Firearms Monday morning, the person who answered the phone assured the producer that they were still selling parts kits and would have more in stock soon. Reams was not shocked by that.
“Ok. I would assume they still have parts kits,” Reams said.
Gunny Salas, owner of Tacticool Arms, confirmed in a phone call that the store is selling parts kits. Salas said after the 9Wants to Know investigation aired last year and he spoke with Reams, the store stopped selling completely assembled magazines for non-military customers to make sure they weren’t doing anything illegal.
“Whatever the end user does on their end, that’s their business per say,” Salas said. “We’re covering our bases to make sure we’re not selling something that can’t be sold in Colorado."
He said a lot of customers buy parts kits to repair old magazines and would change his inventory to be compliant with the law.
“Our intention was to never do anything illegal in any way,” Salas said. “It’s more so we like to observe people’s freedoms and provide them the best parts and firearms that are available on the market.”
Zack Newman, 9Wants to Know investigative producer, contributed to this report.
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