The court also resolved standing issues, holding that individual plaintiffs had standing to challenge the possession and acquisition prohibitions but lacked standing to challenge the manufacturing ban.
In June 2023, Colorado enacted Senate Bill 23-279, codified as Colo. Rev. Stat. § 18-12-111.5, which prohibits the possession, purchase, sale, transfer, and transportation of unserialized firearms, firearm frames or receivers, and firearm parts kits. The law also prohibits the manufacture of firearm frames or receivers by most Coloradans, with violations classified as a class 1 misdemeanor and a class 5 felony on subsequent offenses.
Individual plaintiffs Christopher Richardson, John Howard, and Max Schlosser, along with the National Association for Gun Rights and Rocky Mountain Gun Owners, sued Governor Jared Polis, alleging the law infringes on their Second Amendment rights. The plaintiffs had purchased or owned firearm parts kits from Polymer80, Inc., a manufacturer of unfinished frames and receivers for privately made firearms.
The district court had denied the plaintiffs’ motion for a preliminary injunction, determining that the possession prohibition imposed a presumptively constitutional condition on commercial sales that did not implicate the plain text of the Second Amendment. The court also dismissed acquisition claims as unripe due to a federal ATF rule and found the plaintiffs lacked standing for manufacturing claims.
The Tenth Circuit reversed in part, holding that the possession prohibition regulates firearm possession regardless of how a person acquired the frame or firearm. The court noted that the regulation applies even if a plaintiff received an unserialized kit as a gift, meaning it has nothing to do with the commercial nature of prior transactions.
Because the regulation is not a condition on commercial sales, the district court abused its discretion in denying the preliminary injunction on that basis. The Tenth Circuit declined to reach the merits of the acquisition claims in the first instance, leaving that question for the district court on remand.
On standing, the Tenth Circuit agreed with the district court that plaintiff Richardson had standing for possession claims because he currently owns unserialized parts kits and faces a credible threat of prosecution. The court found the acquisition claims redressable because plaintiffs stated they would purchase kits from private individuals, a channel not barred by the federal ATF rule.
However, the court found plaintiffs lacked standing for manufacturing claims because building a finished frame from an unfinished kit constitutes completing, assembling, or converting under Colorado law, not manufacturing. The statute’s plain language excludes this conduct from the manufacturing ban.
The Tenth Circuit affirmed in part, reversed in part, and remanded for further proceedings consistent with its opinion.