Colorado Will Soon Require a Discretionary Permit To Acquire Semiautomatic Rifles
The state may have a hard time showing that its broad restrictions are consistent with the "historical tradition of firearm regulation."
A bill that Colorado Gov. Jared Polis signed into law last week requires residents of that state to obtain the government's permission and complete 12 hours of firearms training before they can legally obtain semiautomatic rifles that accept detachable magazines. The law, which Polis improbably claims "will make Colorado safer," imposes broad restrictions on firearm ownership that seem inconsistent with the test that the Supreme Court has said gun control laws must pass to comply with the Second Amendment.
Senate Bill 3, which is framed as a means of enforcing Colorado's 2013 ban on magazines that hold more than 15 rounds, applies to "a semiautomatic rifle or semiautomatic shotgun with a detachable magazine"—a category that encompasses some of the most popular guns sold in the United States, including AR-15-style rifles. The law makes exceptions for guns that fire ".22 caliber or lower caliber ammunition" and for specified hunting rifles. It does not apply to handguns unless they are gas-operated and have detachable magazines.
Beginning in August 2026, anyone who wants to acquire a covered firearm will have to complete two new steps. First, he will have to obtain a "firearms safety course eligibility card" from the local sheriff, who is charged with verifying that the applicant is not legally disqualified from owning firearms. The sheriff "may deny an application" if he "has reasonable belief that documented previous behavior by the applicant makes it likely the applicant will pose a danger to [himself] or others."
Second, the applicant will have to undergo at least 12 hours of firearms training by a government-approved instructor, or four hours if he has "completed a hunter education course" within the previous five years. If he receives a score of at least 90 percent on the exam he must take at the end of the training, his name will be added to a database of approved gun owners that dealers are required to consult before selling a covered firearm, at which point they will also conduct a second background check. The state's approval is good for five years, after which applicants must be vetted and trained again if they want to buy additional covered firearms.
For a first offense, violating these rules is a misdemeanor punishable by up to four months in jail, a maximum fine of $750, or both. Subsequent offenses are felonies punishable by up to 18 months in prison.
State Sen. Tom Sullivan (D–Centennial), who sponsored S.B. 3, presented it as a safeguard against mass shootings like the one that killed his son at an Aurora movie theater in 2012. "High-capacity magazines are what put the 'mass' into mass shootings, which is why over a decade ago Colorado Democrats passed legislation to prohibit magazines that hold over 15 rounds of ammunition," Sullivan said. "This legislation is another in the list of policies I have worked on to develop evidence-based solutions and reduce gun violence of all types. The people of Colorado have mandated that we do something about the public health crisis that is gun violence, so that's what we're going to do."
The logic of banning "high-capacity magazines" is debatable, given that gunmen can easily evade such limits (or simply use multiple magazines). The focus on rifles is likewise questionable, given that mass murderers overwhelmingly prefer handguns. But even if you think Sullivan's solution makes sense, that does not mean it is constitutional.
"When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct," Justice Clarence Thomas wrote for the majority in the 2022 case New York State Rifle & Pistol Association v. Bruen. "To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation's historical tradition may a court conclude that the individual's conduct falls outside the Second Amendment's 'unqualified command.'"
Since the Supreme Court has said the Second Amendment applies to ownership of weapons "in common use" for "lawful purposes like self-defense," S.B. 3 clearly impinges on conduct covered by the amendment's "plain text." Can Colorado show that the law's restrictions are "consistent with this Nation's historical tradition of firearm regulation"? To do that, it will have to identify historical analogs that are "relevantly similar" to the new law. Given the evidence that states have been able to muster in defense of other gun control laws, it seems unlikely that Colorado will be able to cite representative historical regulations of a similar scope.
S.B. 3 makes the freedom to acquire a broad class of commonly owned firearms contingent on a local law enforcement official's approval, which can be denied if that official deems the applicant dangerous. And even when the applicant receives a sheriff's permission, the application fee and training requirement impose an additional financial burden that may be daunting to would-be gun owners of modest means.
In an April 2 letter that unsuccessfully urged Polis to veto S.B. 3, four Republican members of Colorado's congressional delegation argued that the bill, which they described as "one of the most restrictive gun ownership laws in the United States," "blatantly infringes upon the Second Amendment rights of law-abiding Americans." In addition to imposing "fees and time commitments that no criminal" will comply with, they warned, "the bill gives any sheriff hostile to the individual—or semi-automatic firearms in general—carte blanche authority" to reject applications based on the sort of "subjective, discretionary standards" that Bruen rejected in the context of carry permits.
The Colorado State Shooting Association plans to challenge S.B. 3 in court. "Polis might think he's scoring points with the anti-gun crowd, but as far as we're concerned, he has just handed us a rallying cry," said Huey Laugesen, the group's executive director. "This fight is far from over, and we're playing for keeps."
