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Colorado urges 10th Circuit to reinstate age cap on gun purchases

The group Rocky Mountain Gun Owners sued Colorado to block a new law raising the minimum age to buy a gun to 21 years.

DENVER (CN) — Colorado urged the 10th Circuit on Tuesday to reverse a lower court’s injunction of a law that raises the minimum legal age to purchase a gun to 21 years old.

The state appealed after Chief U.S. District Judge Philip Brimmer, who was appointed by President George W. Bush, granted a preliminary injunction that blocked the law from going into effect on Aug. 7, 2023. The 10th Circuit declined to lift the injunction during the appeal.

“The question is whether plaintiffs can get a preliminary injunction without putting forth evidence,” Colorado Solicitor General Shannon Stevenson argued from beneath the courtroom's brilliant skylight.

The plaintiffs, zero-compromise Second Amendment advocacy group Rocky Mountain Gun Owners and two individuals, sued Colorado Governor Jared Polis, a Democrat, in April 2023 after he signed the law.

Rocky Mountain’s argument relied on the Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen, which cautioned the government against restricting the right to bear arms, and recommends looking to history for guidance.

As Colorado presented 320 pages of sworn testimony from four experts who offered a historical backing and a rational basis for the law, U.S. Circuit Judge Carolyn McHugh pointed out that the historical analysis falls second to Bruen's first step.

“If I’m reading Bruen correctly — perhaps I’m not — first comes the understanding of ‘the people,’ then the historical analysis,” McHugh said.

The Obama-appointed judge pressed Stevenson on whether the court should adopt an originalist view of “the people," as adopted in the eighteenth century.

 “If you take ‘the people' at the founding of the country, that means only white property owners have the right to bear arms,” McHugh said. In that case, McHugh pointed out, neither she nor Stevenson would be allowed to bear arms today.  

On behalf of the gunowners, attorney Barry Arrington agreed with McHugh’s ordered reading of Bruen, adding that evidence didn’t come into the equation until reaching the second step.

“Here is where plaintiffs and the state part ways emphatically: Step one is not an evidentiary issue. It’s a plain text analysis,” he argued.

Arrington also distinguished between the state’s ability to regulate commerce and its ability to categorically ban a constitutional right.

As a group, the panel worked to parse out what states can and cannot regulate. Senior U.S. Circuit Judge Michael Murphy, a Clinton appointee, asked Stevenson whether Colorado could prohibit everyone from purchasing a gun. Judge McHugh quizzed Arrington on whether states legally could prohibit 5-year-olds from purchasing firearms.

Colorado lawmakers argued that raising the age to buy guns reduces homicides, accidents and suicides. U.S. Circuit Judge Richard Federico, who was appointed by President Joe Biden, asked why that doesn't throw the question in Colorado's favor.

“Why would we not put the public interest factor in favor of the state when this was passed by a duly elected body of legislators?” Federico asked.

Arrington countered that no state has any interest in enforcing an unconstitutional law.

On the courthouse steps outside, Rocky Mountain Gun Owners president Taylor Rhodes said he felt confident.

“A lot of the cases we bring before federal court deal with technical components of firearms,” Rhodes said. “This is a simple case: Are 18- to 20-year-olds treated the same as any other American or not?”

The gun rights organization is also challenging Colorado’s newly minted ghost gun regulations and a waiting period requirement, both of which are pending 10th Circuit review after being denied injunctions.

The panel did not indicate when or how it would decide the case.

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Categories / Appeals, History, Second Amendment

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