In a pivotal ruling, the Denver-based 10th U.S. Circuit Court of Appeals has upheld the constitutionality of Colorado’s law setting the minimum age for purchasing or possessing firearms at 21 years.
The decision, announced Nov. 5, is the latest development in an ongoing clash between states seeking to regulate gun access and firearms advocates who view such measures as unfair impediments to weapons access.
Enacted in 2023, Senate Bill 23-169 prohibits individuals under 21 from buying or possessing firearms, with exceptions for military personnel and certain supervised uses. It also generally bans firearms dealers from selling guns to persons who are not yet 21 years old.
The measure followed mounting concerns over firearm-related violence involving young adults and was championed as a step toward curbing mass shootings and reducing youth involvement in violent incidents.
Gov. Jared Polis, upon signing the bill into law on Apr. 28, 2023, underscored its preventive intent. “Today we are taking some important steps to help make Colorado one of the ten safest states, and building upon the ongoing work to make Colorado communities safer,” Polis said in a press release.
Rocky Mountain Gun Owners sued
The plaintiffs in the case, led by Rocky Mountain Gun Owners, sued the state on the same day in an effort to invalidate the law. They argued that SB 23-169 imposed an unconstitutional restriction on Second Amendment rights because young adults, particularly those aged 18-20, have historically been considered part of the “people” entitled to bear arms for lawful purposes.
The U.S. District Court for the District of Colorado enjoined enforcement of the statute in Aug. 2023. Acting without holding a hearing, Judge Philip Brimmer ruled that RMGO lacked standing to sue the state in the case, but that the two individual plaintiffs could proceed. He then applied a “historical tradition” test, proclaimed by the Supreme Court in New York State Rifle & Pistol Association, Inc. v. Bruen (2022), to determine whether the Colorado statute is constitutional.
Brimmer held that SB23-169 is not consistent with American historical customs relating to guns. Polis, Brimmer wrote, failed to point to sufficient evidence dating to the nation’s infancy that a “total prohibition” on the sale of firearms to minors existed and that the Second Amendment “includes the right to acquire firearms.”
Polis appealed the decision
Polis appealed Brimmer’s decision, arguing that the individual plaintiffs in the case also lack legal standing to sue and that, in any event, the Second Amendment permits states to set a minimum age for firearms purchases.
The state’s government submitted more than a thousand pages of documents, including affidavits from academic historians and political scientists and a neuroscientist, to the 10th Circuit.
In upholding Colorado’s age restriction, the 10th Circuit first said that one of the individual plaintiffs, a teenaged young man who has not yet reached the age of 21 years, could pursue the case.
It then employed the Bruen framework, first discussing whether an 18-20 year old American is covered by the protections of the Constitution’s gun clauses. Kansas-based Judge Richard Federico, the author of the court’s opinion, said they are “part of ‘the people’ as defined by the Second Amendment.”
The three-judge panel then turned to “the question . . . whether the government has the power to disable the exercise of a right that he otherwise possesses.” To answer that, the trio considered whether the “right to ‘keep and bear’ firearms necessarily implies a corresponding right to acquire them.”
The effort to answer that question, Federico wrote, was not a necessary part of the dispute. “[W]e need not decide in this case the full scope of concomitant rights, if any, to ‘keep and bear’ because embedded within the quartet of recent Supreme Court Second Amendment cases is the recognition that certain ‘longstanding’ regulations – including ‘laws imposing conditions and qualifications on the commercial sale of arms’ – are ‘presumptively lawful,’” according to Federico and a second member of the panel, Salt Lake City-based Judge Michael R. Murphy.
Federico’s majority opinion then concluded, after a lengthy discussion of historical precedent, that “as an aged-based condition or qualification on the sale of arms, SB 23-169 is covered by the safe harbor and, as such, falls outside of the scope of the Second Amendment’s right to ‘keep and bear’ arms.”
The panel majority invoked a principle, based on language in 2008’s District of Columbia v. Heller decision of the Supreme Court, that “the most reasonable interpretation of th[e] passage carving out ‘presumptively lawful regulatory measures’ is that commercial restrictions presumptively do not implicate the plain text of the Second Amendment at the first step of the Bruen test.”
“[W]e necessarily conclude the district court abused its discretion when it determined that commercial regulations described in Heller only pertained to ‘those who regularly sell firearms,’” Federico concluded. “As SB 23-169 encompasses both sellers and purchasers, with certain exceptions, it benefits from this presumption.”
Federico also pointed out that Colorado’s law could not be considered to employ “abusive ends” that would take it beyond the presumption of validity allowed by the Second Amendment. He noted the ubiquitous presence of state laws establishing a minimum age for firearm purchases across the country. “It seems evident that the necessity of some minimum age requirement is widely accepted – after all, no one is reasonably arguing that 8-year-olds should be allowed to purchase guns,” he wrote.
Minimum age of 21 established by multiple jurisdictions
And “a significant number of jurisdictions – at least 20 – have established a minimum purchase age of 21, some depending on the type of firearm,” Federico concluded. Therefore, he continued, “a considerable portion of our country has made the normative judgment that setting a minimum purchase age at 21 is appropriate to ensure that firearms are held by responsible, law-abiding persons, in accordance with the Second Amendment.”
The panel found that the age of 21, rather than 18, as the minimum antiquity needed to legally acquire a gun is reasonable because it is aligns with history at the founding of the republic and previous English tradition, state laws that defined the age of majority at 21 years that were in existence into the 20th century, and is “consistent with the current scientific consensus concerning the cognitive, emotional, and social capacities of people aged 18, 19, and 20 relative to those who are 21 and older.”
An injunction against SB23-169 was ruled inappropriate on the additional ground that “the public interest strongly favors Colorado’s enforcement of SB 23-169, particularly as guns became the leading cause of death in Colorado among this age group.”
Judge Carolyn McHugh wrote a concurring opinion.
The 10th Circuit’s ruling may influence ongoing and future legal battles over age-related firearm restrictions in other jurisdictions. A federal appeals court based in Miami is considering whether Georgia’s statute establishing a minimum age to buy a gun can stand and the Philadelphia-located U.S. 3rd Circuit Court of Appeals is considering whether a Pennsylvania law limiting transport of guns by young adults under age 21 is constitutional.
The U.S. 5th Circuit Court of Appeals, headquartered in New Orleans, has upheld a federal law that requires expanded background checks for 18-20 year olds, while the St. Louis-centered U.S. 8th Circuit Court of Appeals struck down Minnesota’s statute that set a minimum age for firearm carry permits.
The 10th Circuit’s decision also may indicate that a federal statute restricting handgun sales to individuals under 21 is also constitutionally permissible. That statute has been attacked on Second Amendment grounds by gun advocates in a case now pending before the U.S. 4th Circuit Court of Appeals in Baltimore.
Eighteen states, along with the District of Columbia, supported Colorado’s appeal in the case.