Well that didn’t take long. On the very same day that a new law took effect in Colorado prohibiting firearm sales to adults under the age of 21, a federal judge granted a preliminary injunction halting enforcement of the new statute.
In his ruling, Chief Judge Phillip Brimmer rejected arguments by the state of Colorado that the phrase “the people” in the Second Amendment does not apply to 18-to-20-year olds. Instead, as Brimmer noted, courts across the country have found that the phrase not only covers individuals in that age range (Firearms Policy Coalition, Inc. v. McCraw), but at least some non-violent felons (Range v. Garland) as well.
The Court is persuaded by the reasoning in Range and McCraw that an interpretation of “the people” in the Second Amendment should begin with the assumption that every American is included. In reaching this conclusion, the Court is careful not to read Heller or Bruen as limiting to whom “the people” refers. Moreover, the Court finds that the Governor has not shown a “historical tradition of firearm regulation” of 18-to-20 year olds during the founding era, as opposed to him citing evidence supporting an argument that states could have regulated 18-to-20 year olds because they lacked rights as minors.
Thus, the Court finds that the Individual Plaintiffs have shown a likelihood of success on the merits on the question of whether the Second Amendment applies to 18-to-20 year olds.
After determining that, Brimmer next turned to the question of whether Colorado’s new law barring all firearm sales to under-21s violates the Second Amendment rights of that class of citizens.
The Individual Plaintiffs claim that it is settled law that Constitutional rights protect closely related acts necessary to their exercise and that purchasing firearms is necessary for keeping and bearing arms.
Additionally, the Individual Plaintiffs argue that a total prohibition on a right is not necessary to show a right is infringed. The Governor argues that the Individual Plaintiffs have made an insufficient showing that the right to keep arms includes a right to buy firearms. Additionally, the Governor argues the Individual Plaintiffs have not shown that their right to self-defense is burdened because SB23-169 has not gone into effect and therefore the Individual Plaintiffs still have the ability to purchase firearms.
Yes, Gov. Jared Polis and his attorneys really argued that though there might be an explicit right to keep and bear arms protected by the Second Amendment, there’s no right to acquire a firearm to keep and bear. Brimmer pointed to a host of decisions from other courts to the contrary, finding once again that the plaintiffs are likely to succeed in their arguments at trial.
Next, Brimmer examined the historical record for any prohibitions similar to Colorado’s new law, and found the governor’s evidence less than compelling. Polis unsuccessfully tried to convince the judge that Bruen‘s text, history, and tradition test shouldn’t apply to laws involving the commercial sale of firearms, and Brimmer was similarly unswayed by the governor’s contention that at the time of the Second Amendment’s adoption certain classes of people were barred from possessing firearms because of safety concerns. Brimmer also took a dim view of the governor’s claim that a handful of rules on 18th century college campuses barring possession of firearms for those under the age of 21 is a valid analogue to Colorado’s ban on gun sales to under-21s, arguing instead that a ban on possession on campus is not nearly the same as a prohibition on all under-21s purchasing a firearm at retail.
Ultimately Polis’s arguments proved unpersuasive for Brimmer, who sided with the plaintiffs and granted an injunction blocking enforcement of the statute while the lawsuit proceeds to trial. Polis will undoubtedly appeal Brimmer’s decision to the Tenth Circuit Court of Appeals, perhaps even as early as today, but for now Colorado adults under the age of 21 are still able to access their Second Amendment right to lawfully acquire a firearm, and hopefully that remains the case going forward.