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Why a judge decided to keep Colorado’s three-day gun law in effect as lawsuit continues

Guns for sale at Lakewood's Bristlecone Shooting Range, Sept. 6, 2016. (Chloe Aiello/Denverite)

People buying guns in Colorado will have to continue waiting three extra days to take possession of their firearms, a judge ruled on Monday.

The three-day waiting period is required by a new state law, HB23-1219, that took effect on Oct. 1 of this year. A gun rights group sued, requesting that a federal judge suspend it immediately. Rocky Mountain Gun Owners and another plaintiff argued that the waiting period infringed on their Second Amendment rights.

But Senior U.S. District Judge John L. Kane Jr. on Monday refused the plaintiffs’ request for a preliminary injunction. He ruled that the waiting-period law should remain in effect while the larger court battle over its constitutionality plays out.

The decision represents an early victory in the lawsuit for Gov. Jared Polis and his administration as they try to defend the state’s new gun laws, which have come into question under the U.S. Supreme Court’s recent Bruen ruling on gun rights.

The Bruen decision created a new standard for judging gun laws, requiring that defenders identify historical precedents for them from around the time of the drafting of the Constitution.

Earlier this year, a different federal judge blocked a new 21-plus age requirement for rifle purchases in Colorado, finding it was likely to not survive the new Bruen test. But in Monday’s ruling, Judge Kane indicated that he agreed with many of the governor’s key points in defense of the waiting-period law.

The injunction decision suggests there’s little chance that Kane will ultimately strike down the law at the end of the case; Rocky Mountain Gun Owners is already planning to push the lawsuit to the Tenth Circuit Court of Appeals. Kane was appointed by President Jimmy Carter, a Democrat.

In his Monday ruling, Kane wrote that the “evidence before me establishes that the Act is consistent with the Nation’s historical tradition of firearm regulation. Plaintiffs, therefore, have not carried their burden to show they are likely to succeed on the merits of their claims,” the judge wrote.

The plaintiffs had argued that the waiting period prevents them from “obtaining possession of their firearm that they have already acquired.” But Judge Kane instead reasoned that the Second Amendment never guaranteed instant delivery of guns.

Historical advertisements for guns “indicate that oftentimes a wait would be involved, for example, when guns were being imported and would arrive at irregular intervals, when firearms were being sold on a single date in the future, or a gunsmith was offering to fabricate firearms for purchasers,” he wrote.

Kane also considered the history of gun law in the U.S., noting that the first waiting period law wasn’t established until 1923. The Bruen decision says laws must have a precedent dating to the Founding Era, more than a century earlier.

But the judge reasoned that there was a reason for the lack of waiting period laws in the newly formed country: Guns were much less common and “impulsive gun homicides” were much less prevalent, so it was “logical” that no such laws existed at the time.

The judge also found that, even if the Founding Era didn’t have waiting periods, it did have “analogues,” or similar policies that legally justify the existence of waiting periods today. The Polis administration had pointed to numerous U.S. and colonial laws back to the 1600s that forbid people from using guns while drunk. Those laws had a similar goal to the waiting period laws, the judge concluded.

“I am not suggesting that all individuals who seek to purchase a firearm are a threat. But the Waiting-Period Act and the intoxication laws both work to prevent individuals in a temporary impulsive state from irresponsibly using a firearm,” Kane wrote.

In contrast, the plaintiffs had argued that “a law specifically targeted at an obviously dangerous situation is not analogous to a law that sweeps up everyone.”

The judge also found that early firearm licensing laws are a historical analogue for today’s waiting periods.

He concluded: “This is not a straightforward case – during the Founding Era and the century that followed, firearm access and technology, along with violent crime, was drastically different and a waiting period for firearm purchases would have been unnecessary. With that in mind, evaluation of the analogues presented is unsurprisingly difficult. Nonetheless, I find the Governor has provided a sufficient record to conclude that our Nation’s historical tradition of firearm regulation is consistent with the Waiting-Period Act.”

The plaintiffs had argued that they had already suffered specific harms for the law, with co-plaintiff Alicia Garcia, a firearms instructor, saying that she was unable to attend a shotgun shoot in Virginia because she couldn’t get a new shotgun in time.

But the judge found that because Garcia already owned “10 to twenty” firearms, there was no threat to her ability to defend herself during the waiting period, which he found was the main question.

Furthermore, the judge found that blocking the waiting-period law would put lives at stake, both from suicide and homicide. He cited evidence from the administration’s expert witnesses, writing: “[S]aving approximately one hundred people in Colorado this year outweighs the aggregate harm of minimal expenditures of time and sacrificed business opportunities.”

Rhodes, the executive director of RMGO, described the ruling as “a bump in the road,” and added that he’s instructed the group’s attorneys “to immediately appeal this decision and take it to a higher Court.”

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