The federal appeals court in Denver on Tuesday cleared the way for a Colorado law to take effect in 2023 that would generally raise the age limit for purchasing firearms to 21.

Senate Bill 169 was originally intended to go into effect last August, creating a misdemeanor offense for those who sell guns to people younger than 21. Similarly, it became a misdemeanor for someone under 21 to buy a gun. The law created exceptions for police officers, those in the military or gifts from family members.

A trial judge granted a preliminary injunction after concluding that the challengers had shown they were likely to succeed in their claim that the Second Amendment protected the right of 18- to 20-year-olds to buy guns. However, a three-judge panel of the US Court of Appeals for the 10th Circuit disagreed.

An age-based requirement on the commercial sale of guns, Justice Richard EN Federico wrote, does not infringe on the right to “keep and bear” arms.

The law “does not prohibit anyone from owning a gun, nor does it prohibit certain transfers of ownership without gun purchases,” Federico explained. in the opinion of November 5. “In fact, the federal government, nearly all 50 states and the District of Columbia have each implemented a minimum age requirement for some or all firearm purchases.”

Judge Carolyn B. McHugh wrote separately to say she agreed with the result, but with different logic. Although she would have found the right to keep and bear arms to include the commercial purchase of guns, McHugh believed the Colorado law still appeared to satisfy the constitutional test.

“Not only are guns the leading cause of death for children and teens in the U.S., but research shows that 18- to 20-year-olds commit gun homicides at three times the rate of adults 21 and older. Colorado’s law prohibiting anyone under the age of 21 from purchasing firearms is an essential tool for preventing gun violence, and today’s decision underscores that it is also fully constitutional,” said Janet Carter, senior director of issues and appeals to gun safety organization Everytown Law. “This result will save lives. We applaud her.”

The Loveland-based National Gun Rights Foundation, speaking on behalf of plaintiff Rocky Mountain Gun Owners, criticized the appeals panel for calling the Colorado law a “mere commercial regulation” instead of a far-reaching constitutional issue.

“This is a very temporary setback, and RMGO will fight back. This law very clearly violates both the Second Amendment and Supreme Court precedents, and we look forward to finally striking it down,” said Hannah Hill, the foundation’s vice president. president.

SCOTUS sparks new gun challenges

Rocky Mountain Gun Owners has regularly sought to overturn gun safety laws following the US Supreme Court’s 2022 decision in New York State Rifle & Pistol Association, Inc. against Bruen. The court’s conservative majority established a new legal framework for analyzing the constitutionality of broad gun regulations, eliminating the government’s ability to illustrate how a limitation on Second Amendment rights would advance a compelling public safety objective.

Instead, Bruin requires the government to show that a restriction is “consistent with this Nation’s historic tradition of regulating firearms.”

Consequently, unlike other types of constitutional rights cases, arguments over the legality of SB 169 have unleashed dueling interpretations of history from the founding era through Reconstruction. In the trial court, the plaintiffs pointed out that men under the age of 21 handled weapons as part of their militia service, while the government argued that there was no unconditional right to firearms at the Foundation for 18- to 20-year-olds. years, which were still considered. “babies”.

U.S. District Court Chief Judge Philip A. Brimmer noted that Rocky Mountain Gun Owners has not established its own standing to challenge SB 169, but two individual plaintiffs have raised viable claims. He agreed that the Second Amendment covered 18- to 20-year-olds and protected the right of individual plaintiffs to obtain guns for self-defense. Therefore, Colorado had to justify SB 169 with historical tradition.

Colorado “fails to point to any founding-era evidence that a blanket ban on the sale of firearms to minors was consistent with the right to bear arms,” ​​Brimmer concluded. in an order dated August 2023.

On the appeal to the 10th Circuit, numerous outside organizations intervened, from gun safety groups and Democratic-led states to the Coalition for Firearms Policy, which seeks to repeal gun regulations.

During oral arguments in May, the parties spent a significant amount of time debating whether 18- to 20-year-olds at the Founding would have been covered by the right to keep and bear arms.

“If we say it’s ‘all the people,’ then we have the problem of children of all ages being implicated as having Second Amendment rights,” said Attorney General Shannon Stevenson. “And I don’t think anyone is seriously arguing that 5-year-olds or 10-year-olds were ever meant at the time of the Founding, or ever, to have the right to keep and bear arms.”

It is not covered by the text

The panel’s decision indicated several points where it clashed with the Supreme Court’s guidelines for evaluating Second Amendment challenges. However, he agreed that 18- to 20-year-olds should not be excluded from constitutional protection even though they were not considered part of the “political community” in the 18th century.

But the panel majority held that the age restriction on the purchase of firearms did not implicate plaintiffs’ Second Amendment rights for a different reason.

The Supreme Court, in its reference decision from 2008 a District of Columbia v. Hellerfound that the Second Amendment protects an individual right to keep and bear arms. The late Justice Antonin Scalia clarified, however, that “nothing in our view should be taken to call into question” the longstanding gun restrictions, which include “conditions and qualifications on the commercial sale of arms.” .

“We agree and hold that laws imposing conditions and qualifications on the sale and purchase of guns do not implicate the plain text of the Second Amendment,” Federico, an appointee of President Joe Biden, wrote for himself and Chief Justice Michael R. Murphy. an appointee of Bill Clinton. Consequently, they did not undertake a full historical analysis of founding-era regulations.

McHugh, appointed by Barack Obama, believed that commercial gun sales were intertwined with the right to keep and bear arms. Therefore, she would have looked to history and tradition – although she believed it was acceptable to compare similar regulations up until the 20th century, based on Supreme Court guidance.

Looking at history, McHugh believed the Colorado law was still constitutionally sound.

“Prior to 1900, at least twenty jurisdictions prohibited the sale of handguns and other deadly weapons to minors under the age of twenty-one,” she wrote. “In addition, eighteen of these laws went further than Colorado’s law by banning all purchases, not just purchases.”

A spokesman for Gov. Jared Polis, who was the named defendant in the suit, said the governor was happy to see “common sense gun safety legislation” upheld by the 10th Circuit.

The case is Rocky Mountain Gun Owners et al. v. Polis.