Article II, § 13 of the Colorado Constitution provides that “[t]he right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.”

Article II, § 13 has been interpreted by the courts of Colorado to allow reasonable regulation of this constitutional provision. In Robertson v. City and County of Denver, plaintiff gun owners challenged the constitutionality of a Denver ordinance banning the manufacture, sale, and possession of assault weapons on numerous grounds, including art. II, § 13.¹ On plaintiffs’ motion for summary judgment, the trial court concluded that art. II, § 13 guarantees a “fundamental right to bear arms.”² Although the trial court found that Denver had generally established a compelling governmental interest in regulating assault weapons, it nevertheless invalidated the ordinance after determining that certain unseverable provisions were vague or overbroad.³

On appeal, the Supreme Court of Colorado reversed most of the trial court ruling, finding only one severable portion of the ordinance to be unconstitutionally vague.⁴ In so holding, the supreme court stated:

“While it is clear that [art. II, § 13] is an important constitutional right, it is equally clear that this case does not require us to determine whether that right is fundamental…. Rather, we have consistently concluded that the state may regulate the exercise of that right under its inherent police power so long as the exercise of that power is reasonable.”⁵

The supreme court concluded that, in its judgment, “the evidence presented to the trial court undeniably demonstrates that the ordinance is reasonably related to a legitimate governmental interest and constitutes a valid exercise of the state’s police power on the right to bear arms in self-defense.”⁶ The case was then remanded to the trial court, and much of the ordinance was eventually upheld by the Court of Appeals of Colorado.⁷

The Supreme Court of Colorado has only applied art. II, § 13 twice to overturn a law. In People v. Nakamura, the supreme court struck down a statute prohibiting unnaturalized foreign-born residents from owning or possessing firearms.⁸ Although the court noted that it is a valid exercise of the police power for the Colorado Legislature to prohibit aliens from hunting or killing wild game (which was, ostensibly, the purpose of the law), “it cannot disarm any class of persons or deprive them of the right…to bear arms in defense of home, person or property…[u]nder this constitutional guaranty, there is no distinction between unnaturalized foreign-born residents and citizens.”⁹ Thirty-six years later, in City of Lakewood v. Pillow, a municipal ordinance barring the possession or use of any deadly weapon except in one’s home was found to be unconstitutionally overbroad, in part because the ordinance violated art. II, § 13 by prohibiting the possession of a firearm in a vehicle or at a place of business for self-defense purposes.¹⁰

In People v. Ford, the court held that a statute imposing a “flat prohibition” on firearm possession by certain felons violated art. II, § 13 as applied to a defendant presenting competent evidence that his or her purpose in possessing firearms was the defense of home, person, or property.¹¹

In 2002, the Court of Appeals of Colorado considered a challenge to two Denver ordinances which precluded most citizens from carrying unconcealed firearms on their person, or from carrying concealed firearms in motor vehicles.¹² After noting that the supreme court’s decision in Robertson (see above) did not expressly state whether the art. II, § 13 “right” to bear arms is a fundamental right, the court of appeals found that:

“[B]y requiring that restrictions on the right be only reasonable, rather than necessary, the court essentially applied the rational basis test in evaluating the constitutionality of a city ordinance that implicated the right to bear arms. Therefore, we conclude that the court implicitly found that the right to bear arms is not a fundamental right.”¹³

Using the rational basis test, the court found that “Trinen has not met his burden of establishing beyond a reasonable doubt that the restrictions are so severe as to render the ordinance unconstitutional.”¹⁴ The court also noted that the affirmative defenses in the Denver ordinances expressly allow the activities that the City of Lakewood v. Pillow case (see above) protected.¹⁵. In addition, the court rejected plaintiff’s preemption claims, holding that there was no conflict with Colorado law. Please see the Local Authority to Regulate Firearms in Colorado summary for further information.

More recently, the Court of Appeals of Colorado rejected the defendant’s argument that the U.S. Supreme Court’s decision in Heller would require Colorado courts to take a different approach with respect to art. II, § 13 of the Colorado Constitution.¹⁶ In People v. Cisneros, the court held that the increased risk of death or injury allowed a state to “reasonably regulate the combination of drugs and weapons,” and that “a statute limiting the right to bear arms in self-defense should be held unconstitutional under the Colorado Constitution only if the defendant establishes that the statute does not regulate ‘under [the state’s] police power in a reasonable manner.’”¹⁷

Colorado law states, in part, “Section 13 of article II of the state constitution protects the fundamental right of a person to keep and bear arms.”¹⁸ There are no cases construing this provision.

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1. 874 P.2d 325, 327 (Colo. 1994).[↩]
2. Id.[↩]
3. Id.[↩]
4. Id.[↩]
5. Id. at 328.[↩]
6. Id. at 333.[↩]
7. See Robertson v. City & County of Denver, 978 P.2d 156 (Colo. Ct. App. 1999).[↩]
8. 62 P.2d 246 (Colo. 1936).[↩]
9. Id. at 247.[↩]
10. 501 P.2d 744, 745 (Colo. 1972).[↩]
11. 568 P.2d 26, 28 (Colo. 1977).[↩]
12. Trinen v. City and County of Denver, 53 P.3d 754 (Colo. Ct. App. 2002).[↩]
13. Id. at 757.[↩]
14. Id. at 758; but see  Students for Concealed Carry on Campus, LLC v. Regents of the Univ. of Colo., 280 P.3d 18 (Colo. App. 2010) (distinguishing the “reasonable exercise test” in Robertson from the rational basis test; the former focuses on the balance of the interests at stake, while the latter only demands a conceivable rationale and noting that “[t]o the extent Trinen indicates that the Robertson court impliedly adopted rational basis review, we disagree.”).[↩]
15. Id. at 757-58[↩]
16. People v. Cisneros, 2014 Colo. App. LEXIS 693 at *18 (Colo. Ct. App. 2014) (“we see no reason to speculate that our supreme court would modify its holding in Robertson in light of Heller.”).[↩]
17. Id. at *18-19.[↩]
18. Colo. Rev. Stat. § 29-11.7-101(1)(b).[↩]