Multiple Courts Cast Doubt on Legality of SB25-3 Colorado’s Proposed Assault Weapons Ban

Colorado is on the verge of implementing one of the most stringent gun control measures seen in the United States with its proposed SB25-003. This legislation places a blanket ban on all semi-automatic rifles and shotguns that can accept a detachable magazine, semi-automatic pistols that utilize gas-reloading systems and can accept detachable magazines, as well as bans rapid fire devices such as bump stocks. If passed, this would mark a significant shift in the approach to gun control, contrasting sharply – and more severely – with measures in states like California and the like, which typically combine magazine capabilities with certain firearm features (such as a pistol grip or barrel shroud). The bill also grants the Colorado Attorney General the authority to further define and interpret its provisions. The legislation specifically bans the purchase, transfer, sale and manufacture of the firearms in question which are commonly used for hunting, sport and self defense.

READ: 10 Crucial Facts You Need To Know About SB25-3

The potential passage of this bill represents a grave threat to our constitutional rights, particularly regarding the Second Amendment. It would place Colorado at the center of national controversy, prompting a flood of legal challenges from gun rights organizations. This could lead to significant legal expenses for the state, potentially costing millions of dollars when Colorado is already facing an impending budget shortfall of nearly $1 billion for 2025 for a bill with virtually no chance of passing judicial scrutiny and would have a negligible impact on Colorado violent crime or murder rates.

Our legal team has compiled a detailed analysis of the Constitutional issues present in the four leading cases involving assault weapon and large capacity magazine litigation, complete with quotes from presiding judges. Feel free to use these in your communications with lawmakers about this bill.

SB25-003 has been titled by the Colorado General Assembly as “Semiautomatic Firearms & Rapid-Fire Devices”. The first public hearing is scheduled on Tuesday, Jan 28 at 1:30pm in front of the Senate State, Veterans & Military Affairs committee. The hearing will be at the Colorado State Capitol in Denver in the Old Supreme Court room. There will be an overflow room as well. Everyone from the public is invited and encouraged to attend. Public comment/testimony will be taken until 11pm. All in-person testimony will be heard first. Sign up here: https://www.leg.state.co.us/clics/clics2025A/commsumm.nsf/NewSignIn.xsp.  Need help? Find instructions and more information about the public hearing here.

Harrel v. Raoul (Illinois- 3^rd Circuit)

(With Supporting Case Law and References from Judge McGlynn’s Opinion)

1. Second Amendment Protects “Common Use” Firearms:
   • In District of Columbia v. Heller, the Supreme Court ruled that the Second Amendment protects weapons “in common use” for lawful purposes like self-defense and hunting. The Illinois ban targets semiautomatic firearms and LCMs that are widely owned and commonly used across the country.
   • Judge McGlynn: “Weapons that are commonly owned and used for lawful purposes cannot be banned by the government.”
   • Cited precedent: Heller (554 U.S. 570), Caetano v. Massachusetts (577 U.S. 411).
2. Violation of the “Plain Text” Test from Bruen:
   • Under N.Y. State Rifle & Pistol Ass’n v. Bruen (2022), when a regulation burdens the Second Amendment, the state must show that the regulation is consistent with the Nation’s historical tradition of firearm regulation. Illinois failed to meet this burden, as it could not point to analogous laws from the Founding or Reconstruction eras.
   • Judge McGlynn: “There is no historical tradition of banning commonly owned firearms.”
3. Assault Weapons and LCMs Are Not “Dangerous and Unusual”:
   • Heller established that only firearms that are “dangerous and unusual” may be banned. Judge McGlynn highlighted that semiautomatic weapons and LCMs are not unusual, as they are owned by millions of law-abiding citizens.
   • Cited precedent: Heller (554 U.S. 570), United States v. Miller (307 U.S. 174).
4. Improper Reliance on Public Safety Arguments:
   • Both Heller and Bruen rejected the idea that public safety concerns can override constitutional rights. Illinois argued that the ban enhances public safety, but Judge McGlynn emphasized that this rationale cannot trump the Second Amendment.
   • Judge McGlynn: “The right to self-defense cannot be subordinated to generalized public safety concerns.”
5. Historical Analogues Do Not Support the Ban:
   • Illinois attempted to justify the ban by citing 19th-century laws regulating certain weapons. Judge McGlynn dismissed these as irrelevant, as they did not constitute bans on commonly owned firearms or magazines.
   • Cited precedent: Bruen (597 U.S. ___), which requires “historical analogues” to be closely relevant to the regulation in question.
6. Fundamental Right to Self-Defense:
   • The Illinois ban severely restricts firearms that are highly effective for self-defense, particularly in home defense scenarios or against multiple attackers. Judge McGlynn underscored that the Second Amendment protects the right to keep and bear arms for self-defense above all.
   • Judge McGlynn: “The right to defend oneself and one’s family is fundamental and cannot be infringed by arbitrary bans.”
   • Cited precedent: McDonald v. City of Chicago (561 U.S. 742).
7. Magazines as Integral Components of Firearms:
   • Large-capacity magazines are standard for many firearms and are necessary for their proper function. Judge McGlynn noted that restricting LCMs effectively renders many protected firearms less effective or unusable for their intended lawful purposes.
   • Cited precedent: Kolbe v. Hogan (4th Cir. 2017) (dissent), Duncan v. Becerra (9th Cir. 2020).
8. Ban Targets Firearms Protected by the Second Amendment:
   • Judge McGlynn emphasized that the banned semiautomatic rifles, such as the AR-15, are among the most popular firearms in the country, making them clearly protected under Heller as weapons in “common use.”
   • Cited precedent: Heller (554 U.S. 570), Caetano v. Massachusetts (577 U.S. 411).
9. Rejects Judicial Interest Balancing:
   • The Illinois ban relies on a form of means-end scrutiny that Heller and Bruen explicitly rejected. Judge McGlynn highlighted that the Constitution provides an “unqualified command” that must be respected.
   • Judge McGlynn: “It is not the role of courts to engage in balancing fundamental constitutional rights against policy concerns.”
10. Encroachment on Rights Protected Against State Infringement:
    • McDonald incorporated the Second Amendment against the states via the Fourteenth Amendment, making Illinois’ restrictions unconstitutional at both the federal and state levels. Judge McGlynn reiterated that state laws cannot infringe upon federally protected rights.
    • Cited precedent: McDonald (561 U.S. 742).

Key Case References in Judge McGlynn’s Opinion:

• District of Columbia v. Heller (554 U.S. 570): Defined the Second Amendment’s core protections, including arms “in common use.”
• N.Y. State Rifle & Pistol Ass’n v. Bruen (597 U.S. ___): Established the historical-tradition test for firearm regulations.
• McDonald v. City of Chicago (561 U.S. 742): Incorporated the Second Amendment against state and local governments.
• Caetano v. Massachusetts (577 U.S. 411): Reinforced that commonly owned weapons are protected, regardless of technological advancements.
• Duncan v. Becerra (9th Cir. 2020): Struck down California’s large-capacity magazine ban (though later vacated by en banc review).
• Kolbe v. Hogan (4th Cir. 2017): Noted dissent emphasized the Second Amendment’s protection of semiautomatic weapons.

Duncan v. Bonta (California – 9^th Circuit)

(Includes Expanded Case Law Analysis from Judge Benitez’s Decision)

1. Violation of the Second Amendment’s Core Protections:
   • The ban infringes on the right to keep and bear arms, particularly firearms and magazines “in common use” for lawful purposes such as self-defense.
   • Referenced Case: District of Columbia v. Heller (2008): Weapons that are “in common use” cannot be banned. Judge Benitez emphasized that AR-15s and LCMs are among the most popular firearms and accessories in the U.S., clearly falling under this protection.
   • Judge Benitez: “The right to keep and bear arms is not a second-class right.”
2. Failure to Meet Bruen’s Historical Test:
   • The N.Y. State Rifle & Pistol Ass’n v. Bruen (2022) ruling requires firearm regulations to align with the Nation’s historical traditions. California failed to provide historical analogues to justify the ban, relying instead on means-end justifications, which Bruen explicitly rejected.
   • Judge Benitez: “California’s ban fails the plain text and historical tradition test set out in Bruen.”
3. Magazines Are Protected “Arms”:
   • Magazines are integral to the functionality of modern firearms and are therefore protected as “arms” under the Second Amendment.
   • Referenced Case: Heller (2008): “The Second Amendment extends to all instruments that constitute bearable arms.” Judge Benitez applied this reasoning to highlight that magazines are essential components of protected firearms.
4. Contradiction with Founding-Era Militia Laws:
   • Historical militia laws required citizens to maintain sufficient ammunition for readiness, such as 20–30 rounds. California’s restrictions run counter to this historical precedent.
   • Referenced Case: Bruen (2022): Historical regulations must align with Founding-era traditions. Judge Benitez cited militia laws to demonstrate the lack of historical support for magazine capacity limits.
   • Judge Benitez: “Early American laws encouraged sufficient ammunition ownership, not restrictions.”
5. Unconstitutionality of Arbitrary Magazine Capacity Limits:
   • California’s 10-round limit is arbitrary and inconsistent with constitutional protections. Judge Benitez pointed out that other states impose different limits (e.g., 15 or 17 rounds), underscoring the lack of a constitutional or historical basis.
   • Referenced Case: Heller (2008): Arbitrary restrictions that limit commonly owned arms are unconstitutional.
6. Misuse of Public Safety Arguments:
   • Public safety concerns, while important, cannot override constitutional rights. Both Heller and Bruen rejected the use of means-end balancing to justify firearm restrictions.
   • Referenced Case: Bruen (2022): Prohibited governments from using public safety concerns as justification without demonstrating historical precedent.
   • Judge Benitez: “A constitutional right cannot be subordinated to a public safety calculus decided by lawmakers.”
7. Magazines Are Necessary for Self-Defense:
   • LCMs provide critical self-defense capabilities, especially in scenarios involving multiple attackers or home invasions. Judge Benitez cited real-life instances where more than 10 rounds were necessary for effective self-defense.
   • Referenced Case: Heller (2008): The Second Amendment’s core purpose is to protect self-defense.
   • Judge Benitez: “Self-defense situations often require more than 10 rounds, and the Second Amendment protects this need.”
8. Lack of Historical Regulation on Ammunition Capacity:
   • California failed to identify historical laws restricting ammunition capacity. The historical analogues it cited, such as fire safety regulations on gunpowder storage, are unrelated to self-defense or firearms regulation.
   • Referenced Case: Bruen (2022): Regulations must be “relevantly similar” to historical precedents. Judge Benitez rejected California’s use of irrelevant analogues.
9. Rejecting “Dangerous and Unusual” Justifications:
   • Heller established that weapons must be both dangerous and unusual to be restricted. Magazines holding more than 10 rounds are not unusual, as they are widely owned and used by millions of Americans.
   • Referenced Case: Caetano v. Massachusetts (2016): Weapons in common use are protected, regardless of perceived danger.
   • Judge Benitez: “The State conflates dangerousness with common use; the Second Amendment protects common arms even if they are dangerous.”
10. Unlawful Burden on Law-Abiding Citizens:
    • The ban criminalizes the possession of commonly owned firearms and magazines, placing an undue burden on law-abiding citizens while doing little to deter criminals.
    • Referenced Case: McDonald v. City of Chicago (2010): States cannot impose restrictions that infringe on federally protected Second Amendment rights.
    • Judge Benitez: “The State’s solution to a few madmen with guns is to criminalize responsible, law-abiding people wanting larger magazines for protection.”

Key Case References in Judge Benitez’s Decision:

• District of Columbia v. Heller (2008): Protects arms “in common use” for lawful purposes, prohibits bans on commonly owned weapons.
• N.Y. State Rifle & Pistol Ass’n v. Bruen (2022): Requires historical analogues for firearm regulations, prohibits means-end scrutiny.
• McDonald v. City of Chicago (2010): Incorporates the Second Amendment against state and local governments.
• Caetano v. Massachusetts (2016): Confirms the Second Amendment protects modern arms in common use, including stun guns.
• United States v. Miller (1939): Established that arms used by the militia or suitable for militia use are protected.

By applying these precedents, Judge Benitez demonstrated that California’s Assault Weapons and LCM ban is inconsistent with the Second Amendment and fails under the legal framework established by Heller and Bruen.:

Ocean State Tactical v. Rhode Island (Rhode Island- 1^st Circuit)

1. Violation of the Common Use Principle (Heller):
   • The Second Amendment protects firearms and components “in common use” for lawful purposes. Large-capacity magazines (LCMs) are widely owned by millions of Americans and are therefore protected.
   • Judge Thomas (Dissent in Friedman v. Highland Park): “The pertinent Second Amendment inquiry is whether a given arm is commonly possessed by law-abiding citizens for lawful purposes today” (577 U.S. 1039).
   • Case Referenced: District of Columbia v. Heller (554 U.S. 570): “[The Second Amendment] takes certain policy choices off the table, including the absolute prohibition of handguns held and used for self-defense in the home.”
2. Magazines as Essential Arms Components:
   • Many firearms cannot operate without their magazines. By banning LCMs, Rhode Island effectively bans functional firearms for self-defense.
   • Judge Benitez (Duncan v. Bonta): “A magazine is an essential mechanical part of a firearm. Without a magazine, many firearms cannot function as designed.”
   • Case Referenced: Bruen (597 U.S. 1): Arms encompass all components that are integral to their operation.
3. Failure to Meet the Historical Tradition Test (Bruen):
   • Under Bruen, firearm regulations must align with the Nation’s historical tradition. Rhode Island provides no historical analogue for banning arms or components based on ammunition capacity.
   • Judge Benitez (Duncan v. Bonta): “There is no American tradition of prohibiting ammunition magazines based on capacity.”
   • Case Referenced: N.Y. State Rifle & Pistol Ass’n v. Bruen: “The government must affirmatively prove that its firearm regulation is part of the historical tradition.”
4. Improper Use of Means-End Scrutiny:
   • Rhode Island’s LCM ban improperly relies on balancing public safety against constitutional rights, a methodology explicitly rejected in Bruen.
   • Supreme Court (Heller): “The Second Amendment confers an individual right to keep and bear arms that is not subject to interest-balancing by courts or legislatures.”
   • Judge Bumatay (Duncan v. Bonta): “The government’s interest in preventing crime cannot justify the elimination of a constitutional right.”
5. Prohibition on Common Arms is Per Se Unconstitutional:
   • Banning commonly owned magazines violates the bright-line rule established in Heller.
   • Judge Kavanaugh (Heller II): “Semi-automatic rifles and their magazines, which are commonly possessed for lawful purposes, cannot be banned.”
   • Case Referenced: Heller (554 U.S. 570): “[Arms] in common use at the time for lawful purposes” are protected.
6. Dispossession Without Compensation Violates the Takings Clause:
   • Rhode Island’s ban requires surrender or alteration of lawfully owned property without compensation, violating the Takings Clause of the Fifth Amendment.
   • Supreme Court (Loretto v. Teleprompter Manhattan CATV Corp.): “A physical appropriation of property gives rise to a per se taking.”
   • Referenced Case: Chicago, B. & Q. Ry. Co. v. Chicago (166 U.S. 226).
7. Neglect of Individual Right to Self-Defense:
   • LCMs are necessary for effective self-defense, particularly in situations involving multiple attackers or extended threats.
   • Judge Benitez (Duncan v. Bonta): “The ability to fire more than 10 rounds without reloading can be the difference between life and death for a law-abiding citizen.”
   • Referenced Case: McDonald v. City of Chicago (561 U.S. 742): The Second Amendment right applies to state laws and emphasizes self-defense as a central purpose.
8. Arbitrary and Overbroad Restriction:
   • The 10-round limit is arbitrary and lacks a rational basis, as no consistent historical or practical justification for this specific limit exists.
   • Judge Benitez (Duncan v. Bonta): “The state provides no evidence that 11 rounds is inherently more dangerous than 10 rounds.”
   • Referenced Case: Caetano v. Massachusetts (577 U.S. 411): “The right to bear arms includes modern arms in common use, not limited by arbitrary characteristics.”
9. Burdening Marginalized Communities:
   • The ban disproportionately affects vulnerable groups such as minorities, women, and LGBTQ+ individuals who rely on firearms for self-defense.
   • Amici Brief (Ocean State Tactical): “Rhode Island’s ban disproportionately impacts communities that face higher rates of violence and discrimination.”
   • Referenced Case: Bruen (597 U.S. 1): The Second Amendment ensures equal protection for all citizens to defend themselves.
10. Conflating Regulation with Total Prohibition:
    • Regulations on arms may be permissible, but outright bans on commonly owned arms violate constitutional protections.
    • Supreme Court (Heller): “A complete prohibition is the sort of policy choice that the Second Amendment takes off the table.”
    • Judge Richardson (Bianchi v. Brown): “History supports regulation of dangerous and unusual weapons but not bans on common arms.”

Key Case References:

• District of Columbia v. Heller (2008): Protects arms “in common use” and rejects balancing tests for Second Amendment rights.
• N.Y. State Rifle & Pistol Ass’n v. Bruen (2022): Establishes the historical tradition test, rejecting means-end scrutiny.
• McDonald v. City of Chicago (2010): Incorporates the Second Amendment against state laws.
• Caetano v. Massachusetts (2016): Modern arms in common use are protected under the Second Amendment.
• Duncan v. Bonta (Benitez Ruling): Rejects California’s LCM ban as unconstitutional under Heller and Bruen.

This analysis highlights both the constitutional violations of the Rhode Island LCM ban and the strong legal precedents that render it incompatible with the Second Amendment

Snope v. Brown (Maryland- 4^th Circuit)

1. Violation of the “Common Use” Test
   • The Supreme Court in Heller ruled that weapons “in common use” are protected by the Second Amendment. Semiautomatic rifles like the AR-15 and LCMs are owned by millions of Americans and are therefore constitutionally protected.
   • Judge Thomas (Dissent in Friedman v. Highland Park): “The pertinent Second Amendment inquiry is whether [the arms] are commonly possessed by law-abiding citizens for lawful purposes today”​20240923155408295_24-20…​20240924112918207_ANJRP….
   • Case Reference: District of Columbia v. Heller, 554 U.S. 570 (2008): “The Second Amendment protects arms in common use for lawful purposes.”
2. Improper Burden Shift
   • Under Bruen, the government must prove that firearm regulations align with historical traditions. Maryland improperly shifted this burden to plaintiffs by requiring them to prove that the banned weapons are constitutionally protected.
   • Judge Benitez (Duncan v. Bonta): “The burden is on the government to justify its regulation, not on the citizen to prove the need for constitutional protection”​20240923155408295_24-20…​20240924112444934_Snope….
   • Case Reference: N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022).
3. Misinterpretation of the Second Amendment’s Text
   • Maryland’s ban excludes so-called “military-style” weapons, but Heller made clear that the Second Amendment protects all bearable arms, including those suitable for military use.
   • Judge Richardson (Bianchi v. Brown Dissent): “The AR-15 is the most popular rifle in America, used overwhelmingly for lawful purposes. That is sufficient to place it under the Second Amendment’s protection”​20240923155408295_24-20…​20240924112444934_Snope….
   • Case Reference: Heller, 554 U.S. at 582: “Arms” includes “all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”
4. Misapplication of “Dangerous and Unusual” Exception
   • Maryland’s argument that AR-15s and LCMs are “dangerous and unusual” misapplies Heller, which held that commonly used arms are not “unusual” and are therefore protected.
   • Judge Alito (Caetano v. Massachusetts): “The fact that modern arms are more advanced than those at the time of the Founding does not remove them from Second Amendment protection”​20240923155408295_24-20…​20240923175527784_Knife….
   • Case Reference: Heller, 554 U.S. at 627: “The historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’ does not apply to weapons in common use.”
5. Lack of Relevant Historical Analogues
   • Maryland failed to cite historical regulations that justify its ban. Historical analogues provided, such as Bowie knife restrictions, do not equate to modern bans on commonly owned firearms and magazines.
   • Justice Thomas (Bruen): “The government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation”​20240923155408295_24-20…​20240924112444934_Snope…
   • Case Reference: Bruen, 597 U.S. at 30: Modern firearm restrictions must align with historical traditions.
6. Overbroad and Arbitrary Classifications
   • Maryland’s ban relies on cosmetic features (e.g., pistol grips, flash suppressors) to define “assault weapons.” Courts have consistently found such classifications to be arbitrary.
   • Judge Benitez (Miller v. Bonta): “The fact that a firearm has a pistol grip or flash suppressor does not make it more dangerous or less protected under the Second Amendment”​20240923155408295_24-20…​20240923185449707_24-20….
   • Case Reference: Caetano v. Massachusetts, 577 U.S. 411 (2016): Modern arms, regardless of features, are protected.
7. Judicial Interest Balancing:
   • Maryland’s approach prioritizes public safety over constitutional rights, but Heller explicitly rejected balancing tests. The Second Amendment guarantees an “unqualified command.”
   • Judge Thomas (Bruen): “The Constitution does not permit interest-balancing of Second Amendment rights”​20240923124845911_Snope…​20240923175527784_Knife….
   • Case Reference: Heller, 554 U.S. at 634–35: “The Second Amendment is not subject to interest-balancing.”
8. Contradiction of Founding Intent
   • • The Second Amendment was specifically designed to ensure citizens could defend themselves against tyranny and protect their communities. Maryland’s ban undermines this purpose.
     • Justice Scalia (Heller): “The right to bear arms is rooted in the need for a citizens’ militia capable of defending against oppression”​20240923175527784_Knife…​20240924112918207_ANJRP….
     • Case Reference: McDonald v. Chicago, 561 U.S. 742 (2010): The Second Amendment applies equally to the states via the Fourteenth Amendment. Failure to Account for Self-Defense Needs
     • LCMs and semiautomatic rifles are critical for effective self-defense, particularly in cases involving multiple attackers or home invasions. Maryland’s ban severely limits citizens’ ability to defend themselves.
     • Judge Benitez (Duncan v. Bonta): “The ability to fire more than 10 rounds can mean the difference between life and death in self-defense situations”​20240923155408295_24-20…​20240924112444934_Snope….
     • Case Reference: Heller, 554 U.S. at 629: The Second Amendment protects weapons used for lawful self-defense.
9. Judicial Defiance of Supreme Court Precedent
   • • Maryland’s legislation and the Fourth Circuit’s decision reflect defiance of Heller and Bruen. This judicial resistance undermines the clarity and authority of Supreme Court rulings.
     • Justice Alito (Caetano): “Lower courts must faithfully apply this Court’s precedents, not second-guess them”​20240924112444934_Snope…​20240924112918207_ANJRP….
     • Case Reference: Bruen, 597 U.S. at 24: Lower courts are bound to adhere to the text-and-history framework.

Key Judicial Quotes for Emphasis:

• • Judge Richardson (Bianchi v. Brown Dissent): “The AR-15 is not dangerous and unusual; it is a common firearm overwhelmingly chosen for lawful purposes, including self-defense.”
  • Justice Thomas (Bruen): “Modern weapons that are commonly owned for lawful purposes are indisputably protected by the Second Amendment.”
  • Judge Benitez (Duncan v. Bonta): “The State’s interest in reducing gun violence cannot come at the cost of obliterating the Second Amendment.”