A federal court will not put a hold on a lower court’s ruling against Colorado’s under-21 gun ban while the appeals process plays out.
On Tuesday, a panel of judges on the Tenth Circuit Court of Appeals denied an emergency request filed by Colorado Governor Jared Polis (D.) to stay the ruling blocking the state’s new law banning all gun sales to adults under the age of 21. The panel determined Colorado officials failed to demonstrate that they were “likely to succeed on the merits” of defending the ban’s constitutionality, underling the uphill battle faced by the state.
“To receive a stay pending appeal, a movant ‘must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest,'” Circuit Judges Carolyn McHugh and Nancy Moritz, both Obama appointees, wrote in an unsigned opinion for RMGO v. Polis. “Upon consideration, the Governor has failed to show his entitlement to a stay under these factors. Accordingly, we deny his emergency motion for a stay pending appeal.”
The ruling deals a blow to gun-control advocates in a state where they have grown unaccustomed to defeat over the last decade. Its immediate impact will be to allow residents between the ages of 18-20 who can pass a background check to purchase and possess firearms in the state. In the longer term, it signals that the law passed to ban gun sales to that group stands little chance of being upheld.
But the denial may also lead to action from even further up the judicial chain. The Supreme Court of the United States (SCOTUS) issued an emergency stay earlier this month on a lower court decision vacating the ATF’s “ghost gun” rule after a Fifth Circuit panel initially denied the request. That came after two other federal appeals courts stepped in to issue stays on lower court rulings striking down Illinois’ “assault weapon” ban and New York’s restrictive new gun-carry law.
Rocky Mountain Gun Owners (RMGO) sued the Polis administration over Colorado’s sales ban for 18-to-20-year-olds immediately after it was signed into law in April. Taylor Rhodes, the group’s executive director, applauded the Tenth Circuit’s decision to deny a stay.
“We are extremely excited,” Rhodes told The Reload. “We kind of figured this is what was going to happen.”
Rhodes emphasized that two Obama-appointed judges handed down the decision. He argued that was a good sign for his group because those judges “have traditionally not cared for the Second Amendment.”
“Even they are on our side in this case,” he said, “so we believe at this point it’s a slam dunk lawsuit.”
Earlier this month, the group secured a preliminary injunction against the law from U.S. District Judge Philip Brimmer, a George W. Bush appointee. He found the right to buy guns was an integral part of the right to keep and bear them.
“Several courts have ruled that the right to keep arms necessarily includes a right to acquire arms,” he wrote at the time. “The court agrees with the individual plaintiffs that the Second Amendment includes the right to acquire firearms and, therefore, protects the individual plaintiffs’ proposed conduct.”
Colorado attempted to argue the under-21 ban was consistent with the nation’s historical tradition of gun regulation, as required by SCOTUS’s decision in 2022’s New York State Rifle and Pistol Association v. Bruen. Brimmer said the Founding Era laws presented by the state weren’t similar enough to the modern ban to pass the Bruen test.
“Colonial laws that disarmed persons who presented a risk of danger to the state or to the country are not analogous to a categorical ban on a segment of society that has not professed hostility to the state or to the nation. And any such analogy would be ‘far too broad.'” he wrote at the time. “Thus, the Court finds that the Governor has not identified founding era gun laws that are analogous to SB23-169.”
Governor Polis’ office did not respond to a request for comment.