Rocky Mountain Gun Owners v. Hickenlooper

2016 COA 45M, 371 P.3d 768, 2016 Colo. App. LEXIS 524, 2016 WL 1165542

Opinions

Opinion by

JUDGE DAILEY

{1 Plaintiffs, Rocky Mountain Gun Owners; National Association for Gun Rights, Inc; John A. Sternberg; and DV~S, LLC (collectively, plaintiffs), appeal the district court's judgment dismissing their complaint for failure to state a claim against defendant, John W. Hickenlooper, in his official capacity as the Governor of Colorado (the Governor). We affirm in part, reverse in part, and remand the case for further proceedings.

I. Background and Procedural History

- T2 In 2018, the Colorado General Assembly enacted gun control legislation when it passed House Bills 13-1224 and 13-1229. House Bill 18-1224 added three criminal statutes, sections 18-12301, 18-12-802, 18-12-803, C.R.9.2015 (collectively, H.B.181224); which banned the sale, possession, and transfer of "large-capacity ammunition magazines." House Bill 13-1229 added or amended sections 18-5-142, 18-5-142.5, 18-9-128, 13-9-124, 1812-101, 18-12-108,5, 18-12-1123, and 18-12-202, C.R.S8.2015 (collectively referred to as H.B. 18-1229), which expanded mandatory background checks to recipients of firearms in some private transfers.

T3 Plaintiffs filed a complaint challenging the constitutionality of the two bills. Specifically, plaintiffs alleged that (1) H.B. 18-1224 and H.B. 18-1229 violate the Colorado Constitution, article II, section 18, which affords individuals the right to bear arms; (2) H.B. 13-1229 is an unconstitutional delegation of executive and legislative authority; and (8) H.B. 13-1229 violates the due process and equal protection provisions of the Colorado Constitution,

14 The district court concluded that most of the plaintiffs had standing to challenge the laws, but that they had failed to state a claim for relief, and therefore granted the Governor's C.R.C.P. 12(b)(5) motion to dismiss. In reaching its conclusion, the district court analyzed the House Bills under a "reasonable exercise of police powers" test rather than a higher standard of review such-as intermediate or strict serutiny.

II,. Standard of Review

15 We review a trial court's order granting a motion to dismiss de novo. BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66, 71 (Colo.2004). A motion to dismiss for failure to state a claim tests the complaint's sufficiency. CRCP. 12(b)(5); Lobato v. State, 218 P.3d 358, 367 (Colo.2009). In reviewing a motion to dismiss, we accept all assertions of material fact in the complaint as true and view the allegations in the light most favorable to the plaintiff, BRW, Inc., 99 P.3d at 71. A court cannot grant a motion to dismiss for failure to state a claim unless no set of facts can prove that the plaintiff is entitled to relief. Lobato, 218 P.3d at 367.

T6 In reviewing a trial court's judgment on the constitutionality of a statute or ordinance, we review the court's legal conclusions de novo. Town of Dillon v. Yacht Club Condo. Ass'n, 2014 CO 37, ¶ 22, 325 P.3d 1032.

III, Plaintiffs' Challenge to H.B. 183-1284

1 7 Plaintiffs contend -that the district court erred in dismissing under C.R.C.P. 12(b)(5) their claim that H.B. 18-1224 violated the 'Colorado Constitution's right to bear arms clause,. We agree.

A. HB. 18-1224 -

18 HB, 13-1224 provides that "on and after July 1, 2018, a person who sells, transfers, or possesses a large-capacity magazine commits a class 2" misdemeanor." § 18-12-802(1)(a). "Large-capacity magazine" is defined as "[a] fixed or detachable magazine, box, drum, feed strip, or similar device capable of accepting, or that is designed to 'be readily converted to accept, more than fifteen rounds of ammunition." § 18-12-801(2)(a)(I).

T9 The statute also has a "grandfather provision" which allows an individual to possess a large-capacity magazine if that individual (1) owned the large-capacity magazine on July 1, 2018; and (2) maintained continuous possession of it. § 18-12-302(@)(a)(D(II).

T10 The statute does not apply to a variety of individuals working in their official capacity, including large-capacity magazine manufacturers or dealers, as well as certain specified individuals, government agencies, and armed forces personnel. See § 18-12-302(8)(a)-(c).

B. The Standard Under Which a Claimed Violation of Colorado's Constitutional Right to Bear Arms is Assessed

111 Article II, section 18 of the Colorado Constitution provides in pertinent part: "The 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...."

112 In Robertson v. City & County of Denver, 874 P2d 325 (Colo.1994), the supreme court upheld a city ordinance banning assault weapons against the claim' that the ordmance violated article II, section 18's nght to bear arms. In doing so, the supreme court noted that the district court had needlessly determmed that article II, section 13 established a "fundamental" right:

While it is clear that this right is an important constitutional right, it is equally clear that this case does not require us to determine whether that right is fundamental. On several occasions, we' have considered article II, section 18, yet we have never found it mecessary to decide the status accorded that right. 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.

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As [prior] cases miake clear, when confronted with a challenge to the validity of a statute or ordinance regulating the exercise of the right to bear arms guaranteed 'under article H, section 18 of the Colorado Constitution, a reviewing court need not determine the status of that right, Rather, the question in each case is whether the law at issue constitutes a reasonable exercise of the state's police power.

This approach is in accordance with the vast majority of cases construing state constitutional provisions which guarantee an individual's right to bear arms in self defense. #

Id. at 328-29.

113 The district court in the present case used the Robertson "reasonable exercise of police power" standard to evaluate plaintiffs' challenge to H.B. 18-1224.¹ Plaintiffs assert, however, that that standard has been effectively overruled by two recent United States Supreme Court cases Addressing the right to bear arms protected by the Second Amendment to the United States Constitution: District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 LEd.2d 894 (2010).

14 In Heller, the Supleme Court struck down as unconstitutional a ban on the possession of handguns, reasoning that "[ulnder any of the standards of serutiny that we have applied to enumerated constitutional rights, banning [handguns] from the home would fail constitutional muster." Id. at 628-29, 128 S.Ct. 2783 (footnote omitted). The Court concluded that the Second Amendment "confer[s] an individual right to keep and bear arms,"² which, while not absolute, should be afforded no lesser protection than other fundamental rights. Id. at 595, 128 S.Ct. 2783.

115 In MeDonald, the Court conmdered similar laws to the District of Columbia's ban in Heller. McDonald, 561 U.S. at 750, 130 S.Ct. 3020. But the city of Chicago argued that its laws were constitutional because the Second Amendment did not apply to the States. Id. In reversing the United States Court of Appeals for the Seventh Circuit, the Court held "that the Due Process Clause of the Fourteenth Amendment incorporates, the Second. Amendment right recognized in Heller," Id. at 791, 180 S.Ct. 3020. "[I]t is clear that the Framers and ratifierg of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our.system of ordered liberty." Id. at 778, 130 S.Ct. 3020. Thus, the Court rejected the city's invitation to treat the right recognized in Heller "as a second-class right, subject to an entirely different body of rules. than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause." Id. at 780, 130 S.Ct. 3020.

116 Plaintiffs assert that (1) Heller and McDonald established something that the supreme court in Robertson rejected, that is, that the right to bear arms is "fundamental" in nature; and consequently, (2) the validity of a restriction on that right cannot be analyzed under Robertson's "reasonable exereise of police power" test-instead, it must be analyzed under the highly exacting "strict scrutiny" standard 'of review. See Evans v. Romer, 882 P.2d 1335, 1341 n. 3 (Colo.1994), aff'd, 517 U.S. 620, 116 S.Ct. 1620, 134 LEd.2d 855 (1996). Under the strict serutiny standard, "[a] legislative enactment which infringes on a fundamental right ... is constitutionally permissible only if it is 'necessary to promote a compelling state interest' and does so in the least restrictive manner possible." Id. at 1341 (quoting Dunn v. Blumstein, 405 U.S. 330, 342, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972).

' 17 We are not persuaded.

118 In the first instance, we do not read the part of Robertson quoted at length above as rejecting the idea that the right provided by article II, section 18 is fundamental; rather, we read that part as saying that, whether the right is fundamental or not, a restriction on the right is nonetheless subject to review 'under a "reasonable exercise of police power" test. 874 P.2d at 329.³

{19 In the second mstance, we would note: ~ '

e Not all restrictions on fundamental rights are analyzed unider a strict seru-tiny standard of review. See, e.g., Heller v. District of Columbia, 670 F.3d 1244, 1256 (D.C.Cir.2011) ("The [Supreme] Court has not said, however, and it does not logically follow, that strict scrutiny is called for whenever a fundamental right is at stake."); State v. Cole, 264 Wis.2d 520, 665 N.W.2d 328, 336 (2008) ("This court has previously recognized that it need not apply strict serutiny every time a governmental burden upon fundamental rights is implicated."); see also Denver Publ'g Co. v. City of Awrora, 896 P.2d 306, 311 (Colo.1995) (holding that "regulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny" (quoting Turner Broad. Sys., Inc. v. Fed. Commc'n Comm'n, 512 U.S. 622, 642 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) (plurality opinion))); Watso v. Colo. Dep't of Social Servs., 841 P.2d 299, 307 (Colo.1992) (noting that the right to parent is "fundamental" but applying a balancing test).

In neither Heller nor MeDonald did a majority of the United States Supreme Court identify a particular standard under which the validity of restrictions on the Second Amendment's right to bear arms would be assessed.⁴

Other states in which the right to bear arms is recognized as a "fundamental" right under their state constitutions analyze restrictions on that right under the Robertson "reasonable exercise of ' police power" test. See Mosby v. Devine, 851 A.2d 1031, 1044-45 (R.I.2004) ("Even in jurisdictions that have declared the right to keep and bear arms to be a fundamental constitutional right, a strict scrutiny analysis has ' been rejected in favor of a reasonableness test - 'the proper question is whether the statute is a reasonable exercise of police power.'" (quoting Cole, 665 N.W.2d at 337)); see also State v. Comeau, 233 Neb. 907, 448 N.W.2d 595, 597 (1989) ("[Clourts have uniformly upheld the police power of the state through its legislature to impose reasonable regulatory control over the state constitutional right to bear arms in order to promote the safety and welfare of its citizens."); Bleiler v. Chief, Dover Police Dep't, 155 N,H. 693, 927 A,2d 1216, 1223 (2007) ("In light of the compelling state interest in protecting the public from the hazards involved with guns, we agree with numerous courts from other jurisdictions that the reasonableness test is the cor- ~ rect test for evaluating a substantive due process challenge to gun control legislation.") (citation omitted). '

Tl20 Ultimately, we are mindful that the instant case does not present us with a challenge to H.B. 18-1224 under the Second Amendment to the United States Constitution. Instead, it presents us with a challenge based on the Colorado Constitution, the construction and application of which are matters peculiarly within the province of the Colorado Supreme Court to determine. See People v. Schwartz, No. 291313, 2010 WL 4137453, at *3 (Mich.Ct.App. Oct. 21, 2010) (unpublished opinion). ("The recent decisions by the Supreme Court of the Umted States do not implicate the proper interpretation and scope of this state's guarantee of the right to bear arms; the courts of this state are free to interpret our own constitution without regard to the interpretation of analogous provisions of the United States Constitution.").⁵

The supreme court has determined that, under the state constitution, a restriction on the right to bear arms will be upheld if it is shown to be a "reasonable exercise of the state's police power." Robertson, 874 P.2d at 329. We are bound by the supreme court's precedent in this regard. There may be good reason for the supreme court to alter that precedent in the future, but we are not at liberty to do so. See People v. Novotny, 2014 CO 18, ¶ 26, 320 P.3d 1194 (The supreme court "alone can overrule [its] prior precedents concerning matters of state law."); see also Rodrigues de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989) ("If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.").⁶

Consequently, we cannot conclude that the district court erred in using the Robertson "reasonable exercise of police power" test to assess the validity of H.B. 13-1224, Cf. People v. Sandoval, 2016 COA 14, 1 25, - P.3d - (holding that "article II, section 18 [of the state constitution] does not protect an individual's right to possess a short shotgun for self-defense because the state's prohibition of short shotguns is a reasonable exercise of its police power").

C. The Application of the Standard

«28 We can-and do-conclude, however, that the district court erred in the manner in which it applied the Robertson test in this cage, When viewed in the light most favorable to plaintiffs, their allegations stated a claim for relief attacking the constitutionality of H.B. 18-1224 sufficient to survive the Governor's Rule 12(b)(5) motion to dismiss.

124 "[WJhether challenged legislation is a reasonable exercise of the state's police power is a mixed factual and legal question." Students for Concealed Carry on Campus, L.L.C. v. Regents of the Univ. of Colo., 280 P.3d 18, 28 (Colo.App.2010), aff'd, 2012 CO 17, 271 P.3d 496; see Robertson, 874 P.2d at 332—33 (examining the evidence presented to the trial court in making reasonableness determination).

1125 In their complaint, plaintiffs alleged:

®, HB, 18-1224 bans all magazines with removable floor plates because these magazines fall into the "readily converted to accept" portion of the bill. § 18-12-30102)(a)(T).

e Because a very large majority of detachable box magazines contain a removable floor plate, it has significantly infringed on individuals' right to keep and bear arms.

e The "grandfather provision's" continuous possession requirement makes it impossible for eligible large-capacity magazine owners to use the large-capacity magazine in innocent ways such as loaning the firearm to a spouse, entrusting it to a gunsmith for repair, or allowing anyone to hold or use the firearm in a functional state.

ease continue. T26 In dismissing plaintiffs' claims, the district court concluded that plaintiffs had misapplied the plain language of the statute and, therefore, were not entitled to have the Despite the district court's deeming the statutory language clear, it also considered two nonbinding technical guidance letters, prepared by the Attorney General upon request from the Governor, to "assist Colorado law enforcement agencies in understanding and applying portions of House Bill 13-1224." Letter from Attorney General John W. Suthers to Colorado Department of Public Safety Executive Director James H. Davis 1 (May 16, 2018) (available at https://perma.cc/43ZN-6H5Z).

T 27 In his May 16, 2018, letter, the Attorney (General interpreted the phrase "designed to be readily converted to accept[ ] more than fifteen rounds of ammunition" and concluded that "a magazine that accepts fifteen or fewer rounds is not a 'large capacity magazine simply because it includes a removable baseplate which may be replaced with one that allows the magazine to accept additional rounds." Id. at 2. The Attorney General also interpreted the phrase "maintains continuous possession" as it related to the grandfather provision of the statute, which allowed possession of large-capacity magazines prior to the effective date of the new law so long as they were continuously possessed by the original owner, Id. The Attorney General determined that the phrase "continuous possession" "cannot reasonably be read to require continuous physical possession." Id. at 8. These clarifications were not immediately apparent from the plain language of H.B. 18-1224, hence the necessity for a clarifying interpretation.

128 As part of a settlement in Colorado Outfitters Association v. Hickenlooper, 24 F.Supp.3d 1050 (D.Colo.2014), vacated and remanded sub nom. Colorado Outfitters Ass'n v. Hickenlooper, 823 F.3d 537, 2016 WL 1105363 (10th Cir.2016),⁷ the Attorney General prepared an additional technical guidance letter on July 10, 2018, interpreting the same provisions of H.B. 18-1224. Letter from Attorney General John W. Suthers to Colorado Department of Public Safety Executive Director James H. Davis (July 10, 2013) (available at https://perma.cc/7KB8-XMVN). In it, the Attorney General emphasized that simply because a magazine with a capacity of fifteen or fewer rounds has a removable ba-seplate does not prohibit possession of the magazine unless the magazine has actually been altered to accept a higher capacity. Id. The Attorney General also concluded that H.B. 18-1224 "shall be afforded its reasonable, every-day interpretation," and that continuous possession "does not require a large-capacity magazine owner to maintain literally continuous physical possession of the magazine." Id. at 1-2. This was yet another articulation of-a meaning not immediately evident from reading the bill's plain language.

€ 29 In addition to the letters, the district court based its decision, in part, on the facts and reasoning set forth in Colorado Outfit ters. There, the federal district court conducted a bench trial to reach its findings and conclusions. See Colo. Outfitters, 24 F.Supp.3d at 1054. Here, the district court accepted the facts determined by Colorado Outfitters in concluding H.B. 18-1224 was a reasonable exercise of the state's police power. However, the allegations in the complaint here also deserve testing through the crucible of factfinding. As an example, the allegation that virtually any magazine violates HB. 18-1224 deserves a hearing.

30 At a minimum, the claim asserts that the magazine limits violate plaintiffs' right to bear arms under article II, section 13 of the Colorado Constitution. That requires a factual inquiry into the reasonableness of the limits. For example, was the fifteen-round limit based upon any reasonable safety concern or was it an arbitrary number? Was the continuous possession requirement based on any reasonable safety concern? Plaintiffs are entitled to present evidence of the basis for their claim.

131 Thus, a de novo review of the complaint's allegations convinces us that a claim has been stated regarding H.B. 18-1224, and it should not have been dismissed as a matter of law.

IV. Plaintiffs Challenge to H.B. 18-1229

«82 Next, plaintiffs contend that H.B. 13-1229 is unconstitutional in three ways: (1) it infringes on individuals' rights to keep and bear arms; (2) it delegates legislative and executive licensure powers to nongovernmental agerits; and (8) it violates the Due Process Clause.

A. HB. 1 3—12.29

183 Prior to the passage of H.B. 13-1229, Colorado had laws in place governing background check requirements for firearm sales at gun shows and retail sales from firearms dealers: See § 12-26.1101, C.R.S. 2015; § 24-83.5-424, C.R.98.2015. Before a transfer of a firearm takes place, the "Licensed Gun- Dealer" ⁸ must first transmit a request for a background check of the purchaser through the national instant eriminal background check system created by the Brady Handgun Violence Prevention Act, codified at 18 U.S.C. § 922 (2012). Then, the Colorado Bureau of Investigation (CBI) gives its approval after conducting a background check of the purchaser per the dealer's request.

34 H.B. 18-1229 imposes the same mandatory background check requirements on some firearm transfers between private parties. It requires a transferor of a firearm to first obtain a background check of the transferee by a licensed gun dealer, using the same process that is required for retail sales or sales at gun shows. The statute also provides a number of instances in which a background check is not requlred⁹ See § 18—12—1126)

B. HB. 13-4229 Doés Not Infringe on an Individual's Right to Bear Arms

185 Unlike H.B. 18-1224, H.B. 13-1229 does not implicate a fundamental right.¹⁰ There is little question that certain groups of persons fall outside the protections of the Second Amendment and there is little reason to suggest that the application of article II, section 13 is any different in this regard. HB, 18-1229 simply carves out a reasonable regulation that provides a mechanism for determining whether sales of firearms qualify under the national instant erim-inal background check system. Colorado and federal law bar certain individuals from possessing firearms based on a history of violence, criminal prosecution, or imental condition. There is no fundamental right to possess a firearm if an individual falls within one of the barred categories, See United States v. Chovan, 735 F.3d 1127 (9th Cir.2018) (noting Heller's observation that felons do not have a fundamental right to bear arms); Nat'l Rifle Ass'n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 700 F.3d 185 (6th Cir.2012) (persons under twenty-one years of age do not have a right to possess a firearm); People v. Blue, 190 Colo. 95, 104, 544 P.2d 385, 391 (1975) (possession of a weapon by a previous offender statute does not violate article II, section 18).

€ 86 Here, H.B. 18-1229 imposes the same background check requirements on private firearm gales that are already required for sales at gun shows and by firearm dealers. Accordingly, H.B. 181229 does not prevent the private sale of firearms; the bill merely creates an additional step for those sales. not taking place through a licensed gun dealer. This step is already in place for retail and gun show sales.

137 Plaintiffs argue that licensed firearm dealers will be unwilling to facilitate the background checks for the transferor and transferee. Because H.B. 18-1229 only expands the reach of the background check requirements already in place in Colorado, it does not infringe on individuals' rights to keep and bear arms for a lawful purpose. For that reason, the district court correctly concluded that plaintiffs failed to state a claim for relief.

C. Delegation of Legislative and Executive Power

138 However, plaintiffs also allege that H.B. 18-1229 is an unlawful delegation of legislative and executive power. We agree with the district court that these claims should be dismissed under C.R.C.P. 12(b)(B5). We reject plaintiffs' contention that the General Assembly has unconstitutionally delegated legislative and executive power to licensed gun dealers to make rules and decisions governing whether to facilitate private firearms transactions.

1. Legislative Delegation

839 Colorado divides its governmental powers into three departments: legislative, executive, and judicial. Colo. Const. art. III, The Colorado Constitution provides that "no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any power properly belonging to either of the others, except as in this constitution expressly directed or permitted." Id. The constitution vests the legislative power of the state in the General Assembly See Colo. Const. art. V, § 1(1).

$40 The nondelegation doctrine, which has its source in the constitutional separation of powers, prohibits the General Assembly from delegating its legislative power to some other agency or person, People v. Lowrie, 761 P.2d 778, 781 (Colo.1988). But, "[the General Assembly does not improperly delegate its legislative power 'when it describes what job must be done, who must do it, and the scope of his authority'" People v. Holmes, 959 P.2d 406, 409-10 (Colo.1998) (quoting Swisher v. Brown, 157 Colo. 378, 388, 402 P.2d 621, 626 (1965)).

1[ 41 We disagree that H.B. 18-1229 unconstitutionally delegates legislative power: to licensed gun dealers,. Licensed gun dealers do not have the power to make rules regarding mandatory background checks; rather, they are required to follow the same procedures in place for retail firearm transactions. The only discretion they have is to charge a fee to conduct the background check, which must not exceed ten dollars, The fact that they are not legally obligated to facilitate the sale between private parties is not a delegation of legislative power.. Thus, we conclude that the district court was correct in ruling that plaintiffs failed to state an unconstitutional delegation of legislative power claim.

2. Executive Delegation

142 Plaintiffs also contend that licensed gun dealers are empowered by statute to exercise certain executive powers-most notably, the executive power to initiate CBI background checks, They claim that licensed gun dealers have broad discretion to investigate the backgrounds of both sides .of the firearms transaction and the unreviewable discretion to determine, without standards or supervision, which pnvate sales shall be processed by 'the CBI Further, plaintiffs maintain that the legislature has made licensed gun ”dealers its principal agents of state enforcement to keep firearms out of the hands of eriminals and to aid law enforcement.

148 Executive agencies and officers charged with a duty to enforce eriminal laws have broad discretion in the performance of those duties. People v. Dist. Court, 632 P.2d 1022, 1024 (Colo.1981). «However, "[the delegation of power to determine the state of facts upon which the law operates may not ... be left to the uncontrolled discretion of the executive or administrative officer." People v. Lepik, 629 P.2d 1080, 1082: (Colo. 1981).

4 44 We conclude that H.B. 13-1229 does not unconstitutionally delegate executive powers: Onee again, the process for these transfers is no different than what is already in plate for retail firearm transactions and gun show sales, Licensed gun dealers are not charged with enforcing the law; instead, they are only required to initiate the request for a background check which is then completed by the CBI. They have no discretion to determine who may have broken the law or who should be prosecuted. This does not make them the principal agent of state enforcement charged with keeping firearms away from criminals.

.D. Due Process Challenge

T45 Last, plaintiffs contend that it was error to dismiss their claim that H.B. 13-1229 violated principles of due process. We disagree.

446 Plaintiffs advance two primary arguments to support their claim that their due process rights are violated by H.B. 18-1229's grant of discrétion to licensed firearm dealers to decline to facilitate a background check. First, licensed firearm dealers will universally refuse to facilitate these background checks, depriving transferors and transferees of their due process right to af-feet aclawful firearms sale. And second, licensed firearm dealers have discretion to impose criminal liability and punishments.

1 47 We conclude that the district court did not err when it determined plaintiff failed to state a claim in this regard. First, plaintiffs point to no facts that licensed firearm dealers have réfused to effectuate the transfer of firearms between two private individuals. Second, plaintiffs incorrectly rely on People v. Vinnola, 177 Colo. 405, 416, 494 P.2d 826, 831 (1972), which held that "[elriminal liability and punishments should not be predicated upon a third party's unfettered discretion." The licensed firearm dealers have no discretion to determine eriminal liability or punishment. Instead, they merely collect the personal information necessary to allow the CBI to conduct a records search. In this regard, they have no official sanctioning function; rather, they have only a reporting function. Accordingly, plaintiffs have failed to state a due process claim for relief, and the district court was correct in dismissing that claim.

' V.. Conclusion

148 The district court's judgment that plaintiffs failed to state a claim regarding the constitutionality of H.B. 18-1224 is reversed. On remand, that claim shall be permitted to go forward. We affirm all other aspects of the district court's judgment.

JUDGE ASHBY concurs. JUDGE GRAHAM concurs in part and . dissents in part.

1

. Under that test, "(aln act is within the state's police power if it is reasonably related to a legitimate governmental interest such as the public health, safety, or welfare." Robertson v. City & Cty. of Denver, 874 P.2d 325, 331 (Colo.1994).

2

. The Second Amendment of the United States Constitution provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." < =_ .

3

, We realize that our reading of Robertson is at odds with that of another division. See Trinen v. City & Cty. of Denver, 53 P.34 754, 757 (Colo.App.2002) (noting that the Robertson court "implicitly found that the right to bear arms is not a fundamental right"). But that division's reading was based on the misperception that Robertson's "reasonable exercise of the police"power'" test was "essentially". the same as the "rational basis test." Id. at 757-58; see also Students for Concealed Carry on Campus, L.L.C. v. Regents of the Univ. of Colo., 280 P.3d 18, 28 (Colo.App.2010) ("Ratlonal basis review and the reasonable exercise test are distinguishable."), aff'd, 2012 CO 17, 271 P.3d 496.

4

. Lower courts tend to subject restrictions on the Second Amendment right to bear arms only to intermediate (rather than strict) scrutiny. See Alice Marie Beard, Resistance by Inferior Courts to Supreme Court's Second Amendment Decisions, 81 Tenn. L.Rev. 673, 686 (2014) (Lower courts "usually are applying. a diluted form of intermediate scrutiny."); Lawrence Rosenthal, The Limits of Second Amendment Originalism and the Constitutional Case for Gun Control, 92 Wash. U.L.Rev, 1187, 1201 (2015) ("The vast majority of appellate decisions ... have rejected the claim that regulations limiting the ability to keep and bear arms in common civilian use are necessarily subject to strict scrutiny,... ").

''Intermediate" scrutiny "requires a showing that the law in question is substantially related to a sufficiently © important governmental interest. ..." Evans v. Romer, 854 P.2d 1270, 1275-76 (Colo. 1993).

5

. "This is not to say that, if the Supreme Court of the United States recognized a right under the United States Constitution that provides greater protection than an analogous clause in our Constitution, this Court would not be bound by that interpretation. Rather, we simply recognize that we would not be enforcing a right guaranteed under our constitution - we would be enforcing a right guaranteed under the federal constitution." People v. Schwartz, No. 291313, 2010 WL 4137453, at *4 n. 2 (Mich.Ct.App. Oct 21, 2010) (unpublished opinion}.

6

. This is particularly true given the matters we noted ""in the second instance" above.

7

. The United States Court of Appeals for the Tenth Circuit vacated the district court's decision, not on any ground related to the merits of the case, but rather because the plaintiffs lacked standing to bring the underlying lawsuit. Colorado Outfitters Ass'n v. Hickenlooper, 823 F.3d 537, -, 2016 WL 1105363, at *12 (10th Cir. 2016).

8

. " Licensed gun dealer' means any person who is a licensed importer, licensed manufacturer, or dealer licensed pursuant to 18 U.S.C. sec. 923, as amended, as a federally licensed firearms dealer." § 12-26.1-106(6), C.R.S.2015.

9

. Such exceptions include: a transfer of an antique firearm; a transfer that is a gift or loan between immediate family members;. a transfer that occurs by operation of law; temporary transfers, made in the transferee's home, when the transferee reasonably believes that possession is necessary to prevent his or her imminent death or serious bodily injury; temporary transfers of possession that occur at shooting ranges, during a target firearm shooting competition, or while legally hunting, fishing, or target shooting; a transfer made to facilitate the repair or maintenance of the firearm; any temporary transfer while in the continuous presence of the owner; a temporary transfer for not more than seventy-two hours; and a transfer from an individual in the armed forces set to be deployed to that individual's immediate family. § 18-12-112(6); C.R.S8.2015. .

10

.. In the complaint, plaintiffs allude to an , as-applied" constitutional challenge to H.B. 13-1229 in arguing hypothetically that licensed gun dealers will refuse to facilitate the background checks for a ten dollar maximum fee, Plaintiffs surmise that the licensed gun dealers would rather sell their own inventory rather than assist a private sale. .We do not address this claim because the complaint did not set forth any specific allegations to support it.