Starting Sunday, a new law says Coloradans will have to wait three days to receive a gun after they buy it. Meanwhile, a second new law will make it easier to sue the firearm industry over gun violence in the state.
The two new laws were passed this year by Democrats in the state legislature, with zero votes from Republicans. Now, the requirements are likely to face legal challenges from conservative gun rights advocates.
A prominent gun-rights group has said it plans to sue over the waiting period requirement as early as noon on Sunday, just hours after it takes effect.
Those types of challenges have seen some success so far. In August, a federal judge temporarily blocked another new Colorado law that would raise the age limit for buying a rifle to 21 years old. The judge in that case issued the injunction just as the law was supposed to take effect.
In general, the conservative U.S. Supreme Court’s new standard for evaluating the constitutionality of gun laws is making it tougher for states like Colorado to defend their restrictions.
Colorado gun waiting period requirements
The new three-day waiting period will apply to all sales of guns, both at stores and gun shows. It was created by the law HB23-1219 this year.
For licensed gun dealers, the waiting period begins as soon as the dealer initiates a background check for the purchase. Breaking the law is a civil offense punishable by a fine of $500, but that fine can go up to $5,000 for second offenses.
The waiting period doesn’t apply to sales of antique firearms. It also doesn’t apply to U.S. military members and their families if they are going to be deployed within the next month. The waiting period also is waived when a person is selling to family members or those with whom they have a “significant personal bond” that is “like a family relationship.”
Local governments also can decide to extend the waiting period beyond three days for local gun sellers, thanks to a law from 2021.
One of the new statewide law’s sponsors, Rep. Judy Amabile, a Democrat from Boulder, says that something similar to a waiting period saved her son’s life when he was suicidal. He faced a delay in getting his background check approved to buy the gun, giving her time to intervene and stop the sale.
“If it saves the life of somebody who you love, then I think you're going to be really grateful. And so I'm really happy about it,” she said.
The legal battle over waiting periods has already begun
Rocky Mountain Gun Owners initially sued in April over the new law, focusing on a woman named Alicia Garcia who said that she intended to buy a gun and would have her Second Amendment rights obstructed by the law.
But last month, U.S. District Court Chief Judge Philip A. Brimmer decided that he wouldn’t immediately block it. Part of the reason was that the law wasn’t yet in effect and therefore couldn’t be irreparably harming the plaintiff.
“Without a demonstration of a current injury, or an imminent injury based on a credible threat of prosecution, plaintiffs have not shown they have standing to move to enjoin HB23-1219 before it is enforced,” Brimmer wrote.
RMGO then voluntarily dismissed the lawsuit but plans to file it again Sunday when the waiting-period law takes effect. That day, Garcia and Taylor Rhodes, the executive director of RMGO, plan to attempt to buy firearms.
“As soon as we see that delay status come up … we'll then snap a photo of that, send it to our attorneys so that we can prove that we have standing, and they will refile that lawsuit. Hopefully we're talking about having it done before noon on Sunday,” Rhodes said.
He added: “What we're talking about is a right delayed is a right denied. I think actually Martin Luther King [Jr.] said that when he was alive. We're talking about fundamental rights. You don't have to pass a background check and wait to be able to vote.”
(King wrote in his “Letter from Birmingham City Jail” that “justice too long delayed is justice denied,” as he fought against racial oppression.)
The Colorado Shooting Association also sued earlier to block the waiting period law, claiming that it represents an anonymous group of seven domestic violence survivors who need immediate access to guns. That case is pending.
“Instead, survivors must wait three days – three days they may not have – to gain the ability to defend themselves and any children they may have with a firearm,” the lawsuit states.
The court battle over the law would fall under the shadow of the U.S. Supreme Court’s Bruen decision from last year, which has forced states to prove their gun laws have a historical precedent from the nation’s earliest days, said Prof. Timothy Lytton, who studies Second Amendment litigation and other subjects at Georgia State University College of Law.
“Historians are lining up on either side or both sides of these issues, and the issue really comes down to whether or not the [Second Amendment] protects the right to purchase a firearm without having to wait too long,” he said.
Lytton expects to see a series of legal battles work their way up to the high court as it builds a new legal doctrine around guns. But there are signs that at least some of the conservative majority — Chief Justice John Roberts and Justice Brett Kavanaugh — are open to allowing states to require waiting periods and background checks.
Besides Colorado, ten states and the District of Columbia impose a waiting period for at least some types of gun purchases, according to the Giffords Law Center.
Amabile said she was confident the law would survive legal challenges. “Rocky Mountain Gun Owners’ agenda is about this gun culture and this no-compromise gun advocacy that your average person in Colorado is not interested in,” she said.
The RAND Corporation recently found “moderate” evidence that waiting periods may lead to lower rates of homicides and firearm suicides, based on a review of studies. The evidence for a decrease in total suicides was “limited.”
What will liability mean for the Colorado firearm industry?
The second new law taking effect Sunday, SB23-168, is meant to make it easier to sue the firearm industry, including manufacturers and sellers, over gun violence.
The legislation says that companies can be sued if they violate Colorado’s Consumer Protection Act and other existing state laws. The sponsors argue that cuts through the combination of state and federal laws that have protected the firearms industry from legal liability.
The law gives people the power to take action when companies “cause some harm by engaging in false advertising, in dangerous advertising, in advertising that promotes the illegal use of firearms and conversion of products that are legal into illegal products, and engages in otherwise knowingly unfair, fraudulent, unconscionable business perspectives,” said Ari Freilich, a policy director at the Giffords Law Center to Prevent Gun Violence, in an earlier interview. The advocacy group helped write the Colorado legislation.
Originally, lawmakers proposed a more expansive version of the liability law. But some of the new requirements for the firearm industry were eliminated before it passed — apparently in response to legal challenges in other states.
New York and New Jersey have laws similar to what was originally proposed in Colorado. Both are being challenged in court.
But it’s not clear yet when, or if, a similar challenge will be filed in Colorado. Rhodes said he hasn’t raised the money for the lawsuit, and also would have to find a plaintiff who can claim to have been harmed.
Republicans have steadfastly opposed the liability law, arguing that it’s unfair to hold gun makers responsible for the actions of their consumers.
