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

Senate Bill 169 was originally intended to take effect in August of last year, creating a misdemeanor offense for those who sell guns to people younger than 21. Similarly, it became a misdemeanor for someone under 21 to purchase 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 the challengers demonstrated they would likely 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 U.S. Court of Appeals for the 10th Circuit disagreed.

An age-based condition on the commercial sale of guns, wrote Judge Richard E.N. Federico, does not run afoul of the right to “keep and bear” arms.

The law “neither prohibits anyone from possessing a gun nor prohibits certain non-purchase gun transfers of ownership,” Federico explained in the Nov. 5 opinion. “In fact, the federal government, almost 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 outcome, but under different logic. Although she would have found the right to keep and bear arms includes the commercial acquisition of guns, McHugh believed Colorado’s law nonetheless appeared to satisfy the constitutional test.

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

The Loveland-based National Foundation for Gun Rights, speaking on behalf of plaintiff Rocky Mountain Gun Owners, criticized the appellate panel for deeming Colorado’s law a “mere commercial regulation” instead of an issue of constitutional magnitude.

“This is a very temporary setback, and RMGO will be fighting back. 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,” said Hannah Hill, the foundation’s vice president.

SCOTUS prompts new gun challenges

Rocky Mountain Gun Owners has regularly sought to strike down gun safety laws following the U.S. Supreme Court’s 2022 decision in New York State Rifle & Pistol Association, Inc. v. Bruen. The court’s conservative majority laid down a new legal framework for analyzing the constitutionality of gun regulations broadly, scrapping the government’s ability to illustrate how a limitation on Second Amendment rights would advance a compelling public safety goal.

Instead, Bruen requires the government to show a restriction is “consistent with this Nation’s historical tradition of firearm regulation.”

Consequently, in contrast with other types of constitutional rights cases, the arguments over the legality of SB 169 unleashed dueling interpretations of history from the Founding Era through Reconstruction. In the trial court, the plaintiffs pointed out men under 21 handled guns as part of their militia service, while the government argued there was no unconditional right to firearms at the Founding for 18-to-20-year-olds, who were still considered “infants.”

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

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

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

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

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

Not covered by the text

The panel’s decision indicated several points at which it struggled with the Supreme Court’s directives for evaluating Second Amendment challenges. Nonetheless, it agreed 18-to-20-year-olds should not be excluded from constitutional protection even if they were not considered part of “the political community” in the 18th Century.

But the panel’s majority believed the age restriction for firearms purchases did not implicate the plaintiffs’ Second Amendment rights for a different reason. 

The Supreme Court, in its landmark 2008 decision of District of Columbia v. Heller, found the Second Amendment protects an individual right to keep and bear arms. The late Justice Antonin Scalia clarified, however, that “nothing in our opinion should be taken to cast doubt” on longstanding gun restrictions, among which were “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 arms do not implicate the plain text of the Second Amendment,” wrote Federico, an appointee of President Joe Biden, for himself and Senior Judge Michael R. Murphy, a Bill Clinton appointee. Consequently, they did not undertake a full historical analysis of Founding Era regulations.

McHugh, appointed by Barack Obama, believed 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 acceptable to compare similar regulations as late as the 20th Century, based on the Supreme Court’s guidance.

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

“Before 1900, at least twenty jurisdictions made it unlawful to sell handguns and other deadly weapons to minors under the age of twenty-one,” she wrote. “Moreover, eighteen of these laws went further than the Colorado law by prohibiting all acquisitions, not just purchases.”

A spokesperson for Gov. Jared Polis, who was the named defendant in the lawsuit, said the governor was glad to see “commonsense gun safety legislation” upheld by the 10th Circuit.

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