Colorado Court Elaborates the "Reasonable Exercise" Test Under the Colorado Constitution's Right to Keep and Bear Arms


Article II, section 13 of the Colorado Constitution reads:

The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.

Monday's decision in Rocky Mountain Gun Owners v. Polis clarified and summarized the "reasonable exercise" test, which the court had announced in the 1994 Robertson case; recall that state supreme courts are free to interpret their state constitutions as more protective than the federal Constitution, as protective, or less protective (though they must also enforce the federal Constitution, when litigants ask them to do so):

[T]he reasonable exercise test [set forth in the 1994 Robertson precedent] demands that government enactments implicating the article II, section 13 right [to keep and bear arms] have a legitimate government end within the police power, such as promoting the public health, safety, or welfare. And as its name suggests, it requires a "reasonable" fit between purpose and means. But in the article II, section 13 context, the ultimate function of the reasonable exercise test is to effectuate the substantive constraints imposed by article II, section 13 on otherwise rational government regulation.

Reflecting that function, the article II, section 13 reasonable exercise test—unlike ordinary rational basis review—demands not just a conceivable legitimate purpose but an actual one. And, importantly, it does not tolerate government enactments that have either a purpose or effect of rendering the right to bear arms in self-defense a nullity. In short, the reasonable exercise test permits restrictions that may burden the right to bear arms but that still leave open ample means to exercise the core of that right; on the other hand, the test forbids restrictions that are so arbitrary or onerous as to amount to a denial of the right.

These features of the reasonable exercise test are apparent from our earliest application of article II, section 13. In Nakamura, the challenged legislation prohibited unnaturalized foreign-born residents from hunting any wild bird or animal except "in defense of persons or property" and, "to that end," made it "unlawful for any unnaturalized foreign-born resident … to either own or be possessed of a shotgun or rifle of any make, or a pistol or firearm of any kind." We acknowledged that the state's identified interests were permissible ones: "[t]he state may preserve its wild game for its citizens" and "prevent the hunting and killing of same by aliens." But we struck down the law nonetheless, reasoning that it was apparent that it was actually "designed to prevent possession of firearms by aliens, as much, if not more, than the protection of wild game within the state."

Importantly, we found it "equally clear" that the act had the effect of "wholly disarm[ing] aliens for all purposes." We held that the state "cannot disarm any class of persons or deprive them of the right guaranteed under section 13, article 2 of the Constitution, to bear arms in defense of home, person, and property." In other words, "[t]he police power of a state … cannot be exercised in such manner as to work a practical abrogation of its provisions."

Our later cases just as clearly demonstrate the independent bite of the reasonable exercise test. In Blue, we held that a statute prohibiting individuals with prior felony convictions from possessing weapons was a constitutional exercise of the police power under article II, section 13. "To be sure," we explained, "the state legislature cannot, in the name of the police power, enact laws which render nugatory our Bill of Rights and other constitutional protections." But we did not read the felon-in-possession statute "as an attempt to subvert the intent of [article II, section 13].". And in Ford, an as-applied challenge to the same statute, we expressly stated that "the specific limitations of [article II, section 13] must be superimposed on the statute's otherwise valid language," and that a state may "validly restrict or regulate the right to possess arms where the purpose of such possession is not a constitutionally protected one" such as defense of home, person, or property. see also City of Lakewood v. Pillow (Colo. 1972) (striking down ordinance that made it unlawful for a person to possess a firearm in a vehicle or in a place of business for purpose of self-defense).

[I]n Robertson, we again explicitly noted that the right to bear arms in self-defense under article II, section 13 could be regulated but not prohibited. In upholding the Denver ordinance [that banned so-called "assault weapons" -EV], we looked to evidence confirming the city council's expressed intent to "promote the health, safety, and security of the citizens of Denver" by "curbing crime—particularly homicides." We further relied on evidence that although the city sought to prohibit the possession and use of approximately 40 firearms, closer to 2,000 remained available for purchase and use in the United States. Given this evidence of the "narrow class of weapons regulated by the ordinance," we had no trouble concluding that it did not "impose such an onerous restriction on the right to bear arms as to constitute an … illegitimate exercise of the state's police power."

In sum, under article II, section 13 of the Colorado Constitution, the government may regulate firearms so long as the enactment is (1) a reasonable exercise of the police power (2) that does not work a nullity of the right to bear arms in defense of home, person, or property. This test differs from rational basis review in that it requires an actual, not just conceivable, legitimate purpose related to health, safety, and welfare, and it establishes that nullifying the right to bear arms in self-defense is neither a legitimate purpose nor tolerable result. In these ways, it ensures that the specifically enumerated "right to bear arms in defense of home, person and property" in article II, section 13 stands as an independent, substantive limitation on otherwise rational government action.

The court went on to apply this to uphold a Colorado statute limiting "large-capacity magazines," defined as magazines "capable of accepting, or … designed to be readily converted to accept, more than fifteen rounds." (The court made clear that the magazines had to be designed to be readily converted to do that, and not just capable of being readily converted.) The court didn't discuss how the statute would be analyzed under the Second Amendment, because plaintiffs had raised only a state constitutional challenge.

NEXT: Supreme Court of Texas Divides Over July and September Administrations of the Texas Bar

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  1. It's very nice that they're paying lip-service to the provision. But it would be preferable for the residents of Colorado, I think, if they actually enforced it.

    1. Nonsense. This is government at its best, using slippery and loose language to define its own limits. They are enforcing their Constitution, in typical government fashion, and yours or anybody else's distaste for their wiggly language is irrelevant.

      1. The riots and looting that accompany the "Only black lives madda" demonstrations show that Standard Capacity magazines are the most "reasonable" reason for them to be legal. You have on video what happens when a mob of thousands show up and the cops DON'T. And the man in St. Louis probably felt "reasonable" standing in his front yard, confronting hundreds of potential rioters and looters with that "Standard Capacity Magazine" of 30 rounds. For some reason the court pointed to the "average defensive shooting" where only 2-3 rounds are fired. Which is great, but what does that have to do with the reality that you may be confronted by multiple attackers or now that riots are happening across the U.S., maybe hundreds. It's too bad Roberts has turned into a squish on the "inferior" Second Amendment. SCOTUS had the opportunity to timely decide that "may issue" laws, "permits" to buy guns, "reasonable" mag limits and other irrational laws. But we need another conservative or 2 on SCOTUS. If Sleepy Joe is elected, the only "right" we will have left will be to keep muzzleloaders in our home.

        1. Joe supports use of a shotgun for Home defense. Just shoot through the door.

    2. This is what they get when they keep electing Dem governors. They get a state Supreme Court that pretends to follow the state constitution, but really doesn’t.

      The absurdity of this law is that several years ago, I bought a Glock 17 in CO. Despite being one of the more common handguns around, it was hard to find, because it typically comes with 17, and not 15, round magazines. You could buy the slightly smaller G19, or the full sized 10 mm G20, .45 ACP G21, etc, because they come with 15 round magazines. Most of my aftermarket magazines only hold 15 Rounds. And, of course, the statute doesn’t apply to police (who are often the ones who need limited capacity magazines, since they are typically not responsible for expending additional rounds, while civilians are). Where is the added safety of eliminating 17 round magazines, when 15 round magazines are legal? I finally found someone who sold me the G17 with its 3 17 round magazines disassembled, and it only took a couple minutes to reassemble them.

      More bothersome for me, if I still lived there, is that 20 and 30 round standard capacity 5.56/.223 AR-15 magazines are banned, 10 round low capacity magazines are much more expensive, and 15 round magazines are essentially nonexistent. Magpul, one of the premier magazine manufacturers in the country, was forced by this law to move its operations out of CO and up to WY. I own maybe a dozen of their handgun magazines, and several dozen of their AR-15 magazines - all purchased after I moved to MT.

  2. Using the reasoning of the Colorado Supreme Court:

    Judaism and Islam can be banned, since there are plenty of other religions to choose from.

    The New York Times can be banned, since the Wall Street Journal is still available.

    1. Likewise, by your logic machine guns and bazookas can't be banned, right?

      1. Machine guns and bazookas remain legal in Colorado, actually!

    2. Exactly.

      And this stuff increasingly has the twisted logic of the fugitive slave laws. How'd that turn out?

  3. "The right of no person to keep and bear arms in defense of his home, person and property..."

    What would fall outside of those qualifiers? Why not just say 'the right of no person to keep and bear arms' will be questioned...

    1. Presumably because one doesn't have the right to bear arms to, for instance, unlawfully murder someone.

      1. I would assume a non-law enforcement officer Coloradan would not be able to claim a right to keep and bear arms to fight crime (other than against herself and those she lives with).

  4. So to make an additional charge for that kind of carry punishable? Thanks, that's a good answer.

    1. Ach, this was meant to reply to Noscitur a sociis

  5. The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question;

    Except for conditions and situations that we judges decide are exceptions...

    Got it.

    1. While I don't want armed felons, I fail to see how a state statute can override the state constitution....

      1. Considering how many BS laws are 'felonies' we're going to need a much finer sieve before we arbitrarily decide 'felons' can be deprived of their rights...

        Example: If I were to go out with my dogs, one of them finds an eagle carcass (died of natural causes) and brings it back to me, I'm a felon...I may have an affirmative defense, but I can still be charged with having the feathers. And yes, it's a felony.

        Another example: Some one with a boat, on the California coast: A sea lion decides to sun itself (at 2-tons or more) on the deck. Better not mess with a protected sea mammal...

  6. Well, yep, while it’s not proper to limited your right to keep and bear arms to prevent you from possibly taking the King’s (State’s) Game, a 30rd round magazine is impermissible. Right? Logically, it must follow...

  7. Go to your local firearms shop. Buy whatever magazine you want as a 'repair kit,' which means they disassemble the magazine and give it to you in parts.

    Go home. Assemble it. Enjoy your Constitutional rights without infringement.

    My XDM comes standard with 19-round magazines. I'll be damned if I'm going to abide by arbitrary restrictions that the police don't have to follow. They have no greater right to self-defense than I.

    As long as cops (active AND retired) are exempt from gun-control laws, there's a zero percent chance I'll follow them myself.

    1. That sentiment will grow especially woth people virtue signaling ober Black Lives Matter.

      1. Black guns matter too, the more the better, and just like all other races felons and teens (except under parental supervision) excepted.

  8. 1. "but nothing herein contained shall be construed to justify the practice of carrying concealed weapons."
    2. "(though they must also enforce the federal Constitution, when litigants ask them to do so)"
    3. "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

    Anything in the last bit about HOW those arms are borne? No? I didn't think so. So how does Colorado get to specify that they cannot be borne concealed? Say under a coat in their damn freezing cold winters?

    1. Justice Kavanaugh looks to text AND tradition and traditionally concealed weapons have been heavily regulated in even the most pro-2A states like Texas.

    2. Peruta, which was overruled enbanc in the 9th stated that California, and the other states in the 9th had to allow either open carry or shall issue concealed carry to allow a meaningful right to bear arms. I think that is probably correct constitutionally. I prefer concealed carry, but open carry does allow you to bear arms.

  9. Translation: because we said so.

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