Court rules against governor who claimed gun purchases not covered by 2nd Amendment

A federal district court Monday temporarily blocked a new Colorado law restricting gun sales after Governor Jared Polis claimed the right to bear arms does not include purchasing them.

Senate Bill 169, which raises the legal gun purchasing age to 21 and mandates a three-day waiting period post sale, was set to take effect on Monday. But Rocky Mountain Gun Owners (RMGO), a non-profit pro-gun rights organization, challenged the constitutionality of the legal age limit in court.

Governor Polis brought several arguments to defend the bill, one of them being that while the Second Amendment acknowledges “the right of the people to keep and bear arms,” it does not acknowledge the right to buy arms.

“The Governor argues the Individual Plaintiffs’ course of conduct is not protected by the Second Amendment because there is no Second Amendment right to purchase firearms,” reads the order.

But U.S. District of Colorado Chief Judge Phillip Brimmer cited at least three cases showing precedent that “the core Second Amendment right to keep and bear arms for self-defense wouldn’t mean much without the ability to acquire arms” and “the right to keep arms necessarily involves the right to purchase them.”

Another argument brought in favor of the state’s age restriction for gun purchases is that “the people” does not include those aged 18-20 because the term probably did not include that age group when the Bill of Rights was adopted.

“The Governor argues that “the people” does not include 18–20 year olds based on a ‘textual-historical’ inquiry of how the term ‘the people’ was used in 1787,” the lawsuit reads.

But given that 18–20 year olds were drafted into militias at the time, the RMGO argued “it would be inconceivable to conclude they had anything but full rights regarding firearms.”

Polis tried to cite English Common Law at the time of America’s founding which presumably did not give 18–20 year olds contractual rights. But the US Supreme Court, in the landmark case New York Rifle Assn., Inc v. Bruen in 2022, had already addressed such arguments:

In interpreting our own Constitution, it is better not to go too far back into antiquity for the best securities of our liberties, unless evidence shows that medieval law survived to become our Founders’ law.

Judge Brimmer also noted that while other amendments in the Bill of Rights address an age restriction when necessary — such as the 26th Amendment’s right to vote at 18 — the Second Amendment pointedly does not.

A temporary injunction was therefore ordered against Senate Bill 169.

In New York Rifle Assn., Inc v. Bruen, Justice Clarence Thomas opined:

We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense.