The Volokh Conspiracy
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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.
