The Centennial State can once again deny 18-to-20-year-olds the ability to purchase any firearms.
A three-judge panel for the Tenth Circuit Court of Appeals on Tuesday overturned a lower court injunction against Colorado’s recently passed gun sales ban for adults under 21. The panel determined that the lower court “abused its discretion” by finding the ban likely unconstitutional. Instead, it ruled that commercial firearm purchases are not covered under the Second Amendment.
“Pineda has partially met his burden at step one by demonstrating that (1) 18- to 20-year-olds fall within ‘the people,’ and (2) the arms he wishes to purchase constitute protected “arms,” Judge Richard Federico wrote for the majority in RMGO v. Polis. “However, Pineda fails to prove that SB 23-169 implicates his right to ‘keep and bear’ arms, the third prong of step one. This is because SB 23-169 is presumptively lawful as a law that imposes conditions or qualifications upon the sale and purchase of arms and thus does not fall within the protections of the plain text of the Second Amendment.”
The ruling deals a significant blow to Colorado gun-rights advocates looking to stave off the state’s increasingly restrictive approach to firearms. The opinion opens the door for the state’s young adult sales ban to take effect for the first time, and its capacious view of permissible commercial sales restrictions could invite many additional regulations.
The case stems from Senate Bill 169, which Colorado Governor Jared Polis signed into law in May 2023. The bill raised the state’s minimum age to purchase any firearm to 21. State policy previously allowed 18-year-olds to purchase rifles and shotguns but not handguns.
Rocky Mountain Gun Owners (RMGO) immediately sued Polis over the law and secured a preliminary injunction against its enforcement last August, the same day it was supposed to take effect.
“The Court finds that the Governor has failed to meet his burden to demonstrate that SB23-169 is consistent with the Nation’s historical tradition of firearms regulation,” Judge Philip Brimmer wrote at the time.
Unlike Brimmer’s opinion, the Tenth Circuit panel did not consider whether Colorado’s ban fit within the historical tradition of gun regulation. Instead, it cited the Supreme Court’s language in its Heller decision referring to “laws imposing conditions and qualifications on the commercial sale of arms” as presumptively lawful.
“We hold that as an aged-based condition or qualification on the sale of arms, SB 23-169 is covered by the safe harbor and, as such, falls outside of the scope of the Second Amendment’s right to ‘keep and bear’ arms,” Judge Federico, a Joe Biden appointee, wrote. “In our effort to discern the best reading of the quartet of Second Amendment cases, we conclude that the prohibition on conduct contained within SB 23-169 does not require us to proceed beyond Bruen step one.”
RMGO criticized the panel’s decision and vowed to keep opposing the law.
“This is a very temporary setback, and we look forward to fighting back against this outrageous ruling,” the group said in a statement. “This law very clearly violates both the Second Amendment and the Supreme Court’s precedents, and we look forward to ultimately striking it off the books.”
Governor Polis’s office did not respond to a request for comment.
The ruling leaves the Tenth Circuit as one of the few appellate courts to uphold an age-based restriction under the Second Amendment since the Supreme Court altered how courts review such cases in 2022’s New York State Rifle & Pistol Association v. Bruen. The Supreme Court has yet to opine directly on age-based restrictions on the Second Amendment. However, last month, it vacated the Third Circuit’s decision striking down Pennsylvania’s ban on gun carry for adults under 21 during declared states of emergency and ordered it to reconsider the matter with its most recent Second Amendment case in mind.
