Amicus Brief: Colorado Outfitters Association v. Hickenlooper

Everytown for Gun Safety filed this amicus brief regarding the Colorado Outfitters Association in the Tenth Circuit, in a constitutional challenge to Colorado’s background check requirement and restriction on large capacity magazines. Everytown’s brief explained that Colorado’s background check law was an effective tool for reducing firearm violence and gun crime, and was fully consistent with the Second Amendment.

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No. 14-1290, 14-1292 ____________________________________________________________________________________________________________________________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT ____________________________________________________________________________________________________________________________________________________________
COLORADO OUTFITTERS ASSOCIATION, et al.,
Plaintiffs- Appellants,
v.
JOHN W. HICKENLOOPER, Governor of the State of Colorado,
Defendant- Appellee. ____________________________________________________________________________________________________________________________________________________________
JIM BEICKER, Sheriff of Fremont County, et al.,
Plaintiffs- Appellants,
v.
JOHN W. HICKENLOOPER, Governor of the State of Colorado,
Defendant- Appellee.
____________________________________________________________________________________________________________________________________________________________
On Appeal from the United States District Court for the
District of Colorado (No. 1:13-cv-01300) (Krieger, J.) ____________________________________________________________________________________________________________________________________________________________
BRIEF OF AMICUS CURIAE EVERYTOWN FOR GUN SAFETY IN
SUPPORT OF DEFENDANT-APPELLEE AND AFFIRMANCE ____________________________________________________________________________________________________________________________________________________________
PETER C. CANFIELD
JONES DAY
1420 Peachtree Street, N.E., Suite 800
Atlanta, Georgia 30309
GREGORY A. CASTANIAS
SPARKLE L. SOOKNANAN
JONES DAY
51 Louisiana Ave. N.W.
Washington, DC 20001
Telephone: (202) 879-3435
Email: [email protected]

Counsel for Amicus Curiae
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i
DISCLOSURE STATEMENT
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure,
Everytown for Gun Safety discloses that it has no parent corporations and is a
nonprofit entity that issues no stock. Accordingly, no publicly held corporation
owns 10% or more of its stock.
/s/ Sparkle L. Sooknanan
SPARKLE L. SOOKNANAN
JONES DAY
51 Louisiana Ave. N.W.
Washington, DC 20001
Telephone: (202) 879-3435
Email: [email protected]
Counsel for Amicus Curiae
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TABLE OF CONTENTS
Page
ii
DISCLOSURE STATEMENT………………………………………………………………………. i
TABLE OF AUTHORITIES ……………………………………………………………………….. iii
INTEREST OF AMICUS CURIAE………………………………………………………………….1
INTRODUCTION ………………………………………………………………………………………..1
ARGUMENT……………………………………………………………………………………………….3
COLORADO’S BACKGROUND CHECK REQUIREMENTS DO NOT BURDEN
CONDUCT PROTECTED BY THE SECOND AMENDMENT, AND WOULD
PASS CONSTITUTIONAL MUSTER EVEN IF THEY DID …………………………….3
I. COLORADO’S EXPANDED BACKGROUND CHECK REQUIREMENTS
ARE LONGSTANDING, PRESUMPTIVELY LAWFUL REGULATIONS
THAT DO NOT VIOLATE THE SECOND AMENDMENT ……………………4
II. BACKGROUND CHECKS ARE PROVEN AS AN EFFECTIVE TOOL
FOR REDUCING FIREARM VIOLENCE AND SAVING LIVES, AND
ARE NOT UNDULY BURDENSOME………………………………………………..13
A. Requiring bakcground checks on all firearm transfers closes a
significant loophold in federal law and provides law enforcement with
a valuable crime-fighting tool …………………………………………………….14
B. Substantial evidence demonstrates that requiring background checks
for transfers by unlicensed persons is effective in reducing gun
violence and firearm crime…………………………………………………………20
C. Colorado’s expanded background check requirements are already
providing public safety benefits without imposing meaningful burdens
on gun buyers or unlicensed sellers …………………………………………….24
CONCLUSION…………………………………………………………………………………………..30
ATTACHMENT A ……………………………………………………………………………………..33
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TABLE OF AUTHORITIES
Page(s)
iii
CASES
District of Columbia v. Heller,
554 U.S. 570 (2008)………………………………………………………………………….passim
Drake v. Filko,
724 F.3d 426 (3d Cir. 2013) ………………………………………………………………………8
Fyock v. Sunnyvale,
779 F.3d 991 (9th Cir. 2015) ……………………………………………………………………..8
Heller v. District of Columbia,
670 F.3d 1244 (D.C. Cir. 2011)………………………………………………………………….5
NRA of Am. v. Bureau of Alcohol,
700 F.3d 185 (5th Cir. 2012) ……………………………………………………………………..5
Peterson v. Martinez,
707 F.3d 1197 (10th Cir. 2013) …………………………………………………………….5, 13
United States v. Bena,
664 F.3d 1180 (8th Cir. 2011) ……………………………………………………………………8
United States v. Booker,
644 F.3d 12 (1st Cir. 2011)………………………………………………………………………..8
United States v. Huitron-Guizar,
678 F.3d 1164 (10th Cir. 2012) …………………………………………………………….4, 13
United States v. Marzzarella,
614 F.3d 85 (3d Cir. 2010) ………………………………………………………………………..5
United States v. Reese,
627 F.3d 792 (10th Cir. 2010) …………………………………………………………3, 13, 14
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TABLE OF AUTHORITIES
(continued)
Page(s)
iv
United States v. Rene E.,
583 F.3d 8 (1st Cir. 2009)………………………………………………………………………….5
United States v. Skoien,
614 F.3d 638 (7th Cir. 2010) ……………………………………………………………………..8
STATUTES
§ 18-12-112 of the Colorado Statutes………………………………………………………passim
18 U.S.C. § 922(d), (g)…………………………………………………………………………………15
47 Stat. 650 (1932)………………………………………………………………………………………11
1911 Colo. Sess. Laws 408…………………………………………………………………………….7
1911 N.Y. Laws 442 ……………………………………………………………………………………..7
1913 Or. Laws 497……………………………………………………………………………..7, 11, 12
1918 Mont. Laws 6 ……………………………………………………………………………………….7
1919 N.C. Sess. Laws 397 ………………………………………………………………………..8, 12
1921 Mo. Laws 691 …………………………………………………………………………………8, 12
1923 Ark. Acts 379 ……………………………………………………………………………………….8
1923 Cal. Stat. 695…………………………………………………………………………………..8, 10
1923 Conn. Pub. Acts 3707 ………………………………………………………………………….10
1923 N.D. Laws 379 …………………………………………………………………………..8, 10, 12
1923 N.H. Laws 138 ………………………………………………………………………………10, 12
1925 Ark. Acts 1047 ……………………………………………………………………………………..8
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TABLE OF AUTHORITIES
(continued)
Page(s)
v
1925 Haw. Sess. Laws 790 …………………………………………………………………………..10
1925 Ind. Acts 495…………………………………………………………………………………10, 12
1925 Mich. Pub. Acts 473…………………………………………………………………………….12
1925 Or. Laws 468………………………………………………………………………………………10
1927 Haw. Sess. Laws 209 …………………………………………………………………………..12
1927 Mass. Acts 413……………………………………………………………………………………10
1927 Mich. Pub. Acts 887……………………………………………………………………….10, 12
1927 N.J. Laws 742……………………………………………………………………………………..10
1931 Pa. Laws 497…………………………………………………………………………………11, 12
1931 Tex. Gen. Laws 447…………………………………………………………………………….11
1935 S.D. Sess Laws 355………………………………………………………………………..11, 12
1935 Wash. Sess. Laws 599…………………………………………………………………….11, 12
1936 Ala. Laws 51 …………………………………………………………………………………11, 12
Vol. 26 Del. Laws 28 (1911) ………………………………………………………………………….6
Vol. 30 Del. Laws 55 (1919) ………………………………………………………………………….6
Brady Handgun Violence Prevention Act of 1993, Pub. L. No. 103-
159, 107 Stat. 1536 …………………………………………………………………………………15
OTHER AUTHORITIES
ATF, Firearms Trace Data-2013,
https://www.atf.gov/content/About/statistics/firearms-trace-data-
2013………………………………………………………………………………………………………18
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TABLE OF AUTHORITIES
(continued)
Page(s)
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ATF, Listing of Federal Firearms Licensees (FFLs) – 2015, at
http://1.usa.gov/1ps0dJa…………………………………………………………………………..26
Colorado Bureau of Investigation, InstaCheck Unit,
http://1.usa.gov/1DkpIFj………………………………………………………………………….24
Cook & Ludwig, Guns in America: Results of a Comprehensive
National Survey on Firearm Ownership and Use (May 1996),
http://bit.ly/1p862I4 ………………………………………………………………………………..16
Everytown for Gun Safety, Online and Off the Record 2-3 (Sept.
2014), http://bit.ly/1Bhinln ………………………………………………………………………17
Everytown for Gun Safety, State Background Check Requirements
and Rates of Domestic Violence Homicide,
http://every.tw/1Aj9HZj ………………………………………………………………………….20
Everytown for Gun Safety, State Background Check Requirements
and Rates of Firearm Homicide Against Law Enforcement,
http://every.tw/1Aj9JAy ………………………………………………………………………….20
Everytown for Gun Safety, State Background Check Requirements
and Suicide, http://every.tw/1Aj9CVz……………………………………………………….20
Federal Bureau of Investigation, Criminal Justice Information
Services Division, NICS Operations Report,
http://www.fbi.gov/about-us/cjis/nics/reports/2012-operationsreport…………………………………………………………………………………………………….27
Fuoco, Michael A. & Gurman, Sadie, New Mexico man regrets
selling guns used in Western Psych shootings, Pittsburgh PostGazette,
Mar. 31, 2012…………………………………………………………………………….17
GunBroker, FFL SignUp,
http://www.gunbroker.com/FFL/DealerServices.aspx…………………………………28
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TABLE OF AUTHORITIES
(continued)
Page(s)
vii
Imlay, Charles V., The Uniform Firearms Act, 12 A.B.A. J. 767
(1926)……………………………………………………………………………………………………..9
Larson, Four Exceptions in Search of a Theory: District of Columbia
v. Heller and Judicial Ipse Dixit, 60 Hastings L.J. 1371 (2009)……………………..9
Miller, Kevin, Many sales of firearms in Maine fall under the radar,
Maine Sunday Telegram, Feb. 10, 2013…………………………………………………….19
Nat’l Conf. on Uniform State Laws, Report of Comm. on Act to
Regulate the Sale & Possession of Firearms (1930)………………………………10, 11
Nat’l Instant Criminal Background Check System, NICS Point of
Contact States & Territories, http://www.fbi.gov/aboutus/cjis/nics/poc……………………………………………………………………………………….27
Open Letter from Chad J. Yoder, Chief, Firearms and Explosives
Industry Division, to All Federal Firearms Licensees (Jan. 16,
2013), https://www.atf.gov/files/regulationsrulings/procedures/031513-open-letter-atf-procedure-2013-1.pdf…………………28
Sportsmen Fight Sullivan Law, 23 J. Crim. L & Criminology 665
(1932)……………………………………………………………………………………………………11
U.S. Department of Justice, Background Checks for Firearm
Transfers: 2012 Statistical Tables (December 2014),
http://1.usa.gov/1DaX5UW ……………………………………………………………………..15
U.S. Department of Justice, Survey of Inmates in State and Federal
Correctional Facilities: Firearm Use by Offenders (Feb. 28, 2007),
http://www.bjs.gov/content/pub/pdf/fuo.pdf………………………………………………16
Webster et al., Effects of State-Level Firearm Seller Accountability
Policies on Firearm Trafficking, 86 J. Urban Health 525 (2009)………………….21
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TABLE OF AUTHORITIES
(continued)
Page(s)
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Webster et al., Effects of the Repeal of Missouri’s Handgun Purchaser
Licensing Law on Homicides, 91 J. Urban Health 293 (2014)……………22, 23, 24
Webster & Wintemute, Effects of Policies Designed to Keep Firearms
from High-Risk Individuals, Annual Review of Public Health
(2015)………………………………………………………………………………………………16, 21
Wintemute, Background Checks for Firearm Transfers (2013),
http://www.ucdmc.ucdavis.edu/vprp/………………………………………..18, 21, 24, 28
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INTEREST OF AMICUS CURIAE1
Everytown for Gun Safety (“Everytown”) is the largest gun violence
prevention organization in the country, with more than 2.5 million supporters,
including everyday Americans, gun violence survivors, and more than 1,000
current and former mayors, who are fighting for policies that will reduce gun
violence and save lives. Everytown was formed when two of the country’s leading
gun violence prevention organizations—Mayors Against Illegal Guns and Moms
Demand Action for Gun Sense in America—joined forces. Everytown’s
members—including the current mayors of ten Colorado cities and more than
57,000 other Colorado residents—are united in their understanding that respect for
the Second Amendment can go hand-in-hand with common-sense gun laws.
INTRODUCTION
Federal law requires licensed firearm dealers to conduct background checks
before transferring firearms, but it imposes no such obligation on unlicensed gun
owners who sell or transfer firearms. In November 2000, in the wake of a mass
shooting at Columbine High School, Colorado’s voters passed a ballot initiative
requiring background checks for gun sales by unlicensed sellers at gun shows.
1 All parties consent to the filing of this brief. No party’s counsel authored
this brief in whole or in part; no party or party’s counsel, or any person, other than
Amicus or its counsel, contributed money intended to fund the preparation or
submission of this brief.
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More than a decade later in 2013, after another mass shooting at a movie theatre in
Aurora that left 12 dead and 70 injured, Colorado’s legislators expanded the
background check requirement, with certain exceptions, to all gun sales and
transfers by unlicensed parties. Under the law, § 18-12-112 of the Colorado
Statutes, an unlicensed person wishing to transfer a firearm must arrange for a
licensed dealer to conduct a background check on the prospective recipient of the
gun. All licensed dealers in Colorado are eligible to perform the checks and they
may not charge more than $10 for the service.
Colorado expanded its background check requirement to promote public
safety and reduce crime. The law simply subjects purchases from unlicensed
sellers in the secondary market to the same background checks that have long been
in effect for purchases at licensed dealers and gun shows. Appellants claim that
this expansion of Colorado’s background check requirement infringes their Second
Amendment rights. It does not. The Second Amendment right to keep and bear
arms “is not unlimited,” and various “longstanding” regulations of conduct that fall
outside the scope of the Second Amendment’s protections are “presumptively
lawful.” District of Columbia v. Heller, 554 U.S. 570, 626-27 & n.26 (2008).
Background checks of the sort that § 18-12-112 requires are one such
longstanding, presumptively valid condition on the sale of firearms that
implements widely-accepted prohibitions on firearm ownership. Section 18-12-
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112 thus falls outside the scope of the Second Amendment. Even if § 18-12-112
did burden Appellants’ Second Amendment rights, it would easily pass muster
under the appropriate constitutional scrutiny.
At no time in American history has keeping guns out of the hands of
dangerous persons like felons or the severely mentally ill been understood to
violate the Second Amendment. Background checks are the cornerstone of gun
safety and our Nation’s chosen method for stopping these prohibited individuals
from obtaining firearms. This Court should affirm the district court’s decision to
uphold § 18-12-112’s background check provisions.2
ARGUMENT
COLORADO’S BACKGROUND CHECK REQUIREMENTS DO NOT BURDEN CONDUCT
PROTECTED BY THE SECOND AMENDMENT, AND WOULD PASS CONSTITUTIONAL
MUSTER EVEN IF THEY DID.
This Court evaluates Second Amendment challenges under a familiar twostep
inquiry. The first question is “whether the challenged law imposes a burden
on conduct falling within the scope of the Second Amendment’s guarantee.”
United States v. Reese, 627 F.3d 792, 800 (10th Cir. 2010) (internal quotation
marks omitted). “If it does not, the court’s inquiry is complete.” Id. at 800-01. “If
it does, the court must evaluate the law under some form of means-end scrutiny.”
2 For the reasons presented by Appellee, see Appellee Br. at 46, Amicus
agrees that § 18-12-122’s limitations on large capacity magazines also pass
constitutional muster, but Amicus limits this brief’s focus to § 18-12-112’s
background check requirements.
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Id. at 801. Colorado’s law expanding background checks survives at the first step.
It is a “presumptively lawful regulatory measure[]” that regulates conduct falling
outside the scope of the Second Amendment’s protections, and is consistent with
the right to keep and bear arms. See Heller, 554 U.S. at 626-27 & n.26. Even if it
did burden conduct protected by the Second Amendment, § 18-12-112 would
easily pass muster under the appropriate, intermediate level of scrutiny.
I. COLORADO’S EXPANDED BACKGROUND CHECK REQUIREMENTS ARE
LONGSTANDING, PRESUMPTIVELY LAWFUL REGULATIONS THAT DO NOT
VIOLATE THE SECOND AMENDMENT.
The Second Amendment right to keep and bear arms is not unlimited.
Heller declared that the “right [is] not a right to keep and carry any weapon
whatsoever in any manner whatsoever and for whatever purpose.” Heller, 554
U.S. at 626; see also United States v. Huitron-Guizar, 678 F.3d 1164, 1166 (10th
Cir. 2012) (“The right to bear arms, however venerable, is qualified by what one
might call the ‘who,’ ‘what,’ ‘where,’ ‘when,’ and ‘why.’”). More specifically, the
Court in Heller held that several types of laws—including “prohibitions on the
possession of firearms by felons and the mentally ill” and “laws imposing
conditions and qualifications on the commercial sale of arms”—are “presumptively
lawful regulatory measures” because of their longstanding acceptance as consistent
with the Second Amendment. As the Court noted in Heller, nothing in its opinion
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“should be taken to cast doubt on [these] longstanding prohibitions.” 554 U.S. at
626-27 & n.26.
This Court and others have recognized that longstanding prohibitions and
regulations on the sale of firearms are presumptively valid under Heller, and
should be upheld under the Second Amendment without resort to means-end
scrutiny. See, e.g., Peterson v. Martinez, 707 F.3d 1197, 1211 (10th Cir. 2013)
(concealed carry laws are presumptively lawful because they “have a lengthy
history”); see also United States v. Marzzarella, 614 F.3d 85, 91 (3d Cir. 2010)
(“[L]ongstanding limitations are exceptions to the right to bear arms” and “are
presumptively lawful because they regulate conduct outside the scope of the
Second Amendment.”); Heller v. District of Columbia, 670 F.3d 1244, 1253 (D.C.
Cir. 2011) (“[A] regulation that is ‘longstanding,’ which necessarily means it has
long been accepted by the public, is not likely to burden a constitutional right;
concomitantly the activities covered by a longstanding regulation are
presumptively not protected from regulation by the Second Amendment.”); NRA of
Am. v. Bureau of Alcohol, 700 F.3d 185, 196 (5th Cir. 2012) ( “[A] longstanding,
presumptively lawful regulatory measure . . . would likely fall outside the ambit of
the Second Amendment . . . [and] would likely be upheld at step one of our
framework.”); United States v. Rene E., 583 F.3d 8, 12 (1st Cir. 2009) (“These
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[longstanding] restrictions, as well as others similarly rooted in history, were left
intact by the Second Amendment and by Heller.”).
Like the longstanding measures upheld by this and other courts, background
check requirements are longstanding, presumptively lawful conditions on the sale
of firearms. Historically, background checks have been used to effectuate widely
accepted prohibitions on firearm possession—including by felons and the mentally
ill. Indeed, the earliest background check requirements date to the same period as
the felon possession bans that Heller deemed presumptively lawful by virtue of
their lengthy history—and, in most cases, were adopted in the very same
legislation that enacted prohibitions on possession by felons and the mentally ill.
Background checks can be traced to early 20th century statutes; the earliest
laws mandating investigations of gun buyers were adopted in 1911. That year,
Delaware passed a law that forbid the sale of firearms to a minor or “intoxicated
person.” See Vol. 26 Del. Laws 28, 28-29 (1911). That same statute required an
investigation into a gun purchaser’s background and prohibited the sale of a
firearm until “the purchaser ha[d] been positively identified.” See id. at 29.3
The
statute also imposed licensing and extensive record keeping requirements on
firearms dealers. See id. Later that same year, New York enacted the Sullivan
3 In 1919, Delaware enhanced its identification provision by requiring that
two witnesses positively identify a firearm purchaser before a sale could be
completed. See Vol. 30 Del. Laws 55, 55-56 (1919).
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Act, which required prospective purchasers of handguns to apply for a permit from
law enforcement in order to possess a firearm, and prohibited gun dealers from
selling to anyone without such a permit. See 1911 N.Y. Laws 442, 442-45. Also
in 1911, Colorado enacted legislation requiring commercial gun dealers to keep
detailed records on purchasers of firearms and to share these records with law
enforcement. See 1911 Colo. Sess. Laws 408, 409. In 1913, Oregon enacted a law
requiring a would-be handgun buyer to first acquire a permit to purchase; an
applicant had to prove his good character by providing affidavits signed by two
“reputable freeholders” testifying to the applicants “good moral character” before a
magistrate would issue a permit. See 1913 Or. Laws 497, 497.
In the ensuing years, several more states adopted legislation that provided
standards to guide law enforcement investigations into gun purchasers’
backgrounds. In 1918, for example, Montana required registration of all firearms
and prohibited certain sales unless law enforcement issued a permit after an
investigation that concluded a gun buyer was “of good moral character and [did]
not desire such fire arm or weapon for any unlawful purpose.” See 1918 Mont.
Laws 6, 7. One year later, North Carolina prohibited firearm sales until a clerk of
the Superior Court “fully satisf[ied] himself by affidavits, oral evidence, or
otherwise, as to the good moral character of the applicant therefor, and that such
person . . . require[d] the possession of such weapon . . . for protection of the
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home.” See 1919 N.C. Sess. Laws 397, 398. A 1921 Missouri law required the
county sheriff to investigate a prospective purchaser’s background prior to the
issuance of a permit to ensure that the person was “of good moral character and of
lawful age,” and that granting the permit would “not endanger the public safety.”
See 1921 Mo. Laws 691, 692. Arkansas, too, enacted a statute requiring
purchasers to apply for a permit from law enforcement to legally possess pistols
and revolvers; law enforcement only issued such permits after concluding the
applicant was a person “whose conduct, past record and occupation [was] such as
to prove . . . that he [was] a person of good character.” See 1923 Ark. Acts 379,
380; repealed by 1925 Ark. Acts 1047, 1047.4
4 Under Heller, regulatory measures dating to the early twentieth century
may be sufficiently “longstanding” to be presumptively lawful; they “need not
mirror limits that were on the books in 1791.” United States v. Skoien, 614 F.3d
638, 641 (7th Cir. 2010) (Easterbrook, J.); see also Fyock v. Sunnyvale, 779 F.3d
991, 997 (9th Cir. 2015) (“early twentieth century regulations” may “demonstrate a
history of longstanding regulation”); Drake v. Filko, 724 F.3d 426, 432 (3d Cir.
2013) (“pre-ratification presence” is not a prerequisite for regulation to qualify as
longstanding); United States v. Bena, 664 F.3d 1180, 1182 (8th Cir. 2011); United
States v. Booker, 644 F.3d 12, 23 (1st Cir. 2011). The firearm regulations Heller
identified as “longstanding” and “presumptively lawful”—“prohibitions on the
possession of firearms by felons and the mentally ill . . . [and] conditions and
qualifications on the commercial sale of arms”—are of distinctly “20th century
vintage.” Skoien, 614 F.3d at 639. The first state prohibitions on possession of
firearms by felons arose in the early twentieth century, see, e.g., 1923 Cal. Stat.
695, 696; 1923 N.D. Laws 379, 380, the first federal statute prohibiting some
felons from possessing firearms was not passed until 1938, and all felons were not
prohibited under federal law from possessing firearms until 1961. See Skoien, 614
F.3d at 640; see also Booker, 644 F.3d at 23-24. Likewise, the modern regulatory
framework for commercial sales—requiring dealer licensing and recordkeeping—
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In response to this trend of increasing firearm regulation, the United States
Revolver Association, under the direction of its Vice President—and National
Rifle Association President—Karl T. Frederick, drafted a model law to guide the
legislative efforts of other states (the “USRA Model Act”). Among other things,
the legislation prohibited the possession of pistols and revolvers by felons and noncitizens
and barred the sale of handguns to minors; required sellers to transmit
detailed sales records to local law enforcement; and imposed a one-day waiting
period between the application to purchase a firearm and receipt of that firearm.
The requirements that dealers send sale records to law enforcement and the oneday
waiting period before a gun could be transferred to the buyer worked together
to permit local law enforcement to conduct a brief background check investigation
and prevent the purchase where required by law. See Charles V. Imlay, The
Uniform Firearms Act, 12 A.B.A. J. 767, 767 (1926).
Between 1923 and 1925, several states—including California, Connecticut,
North Dakota, New Hampshire, Indiana, and Oregon—passed laws that, like the
USRA Model Act, coupled early firearm prohibitions with background checks by

was not established until the early twentieth century alongside felon prohibitions
and the earliest background checks, see, e.g., 1923 Cal. Stat 695, 699-702.
Regulations on the commercial sale of firearms did not exist at the time of the
passage of the Second Amendment. See Larson, Four Exceptions in Search of a
Theory: District of Columbia v. Heller and Judicial Ipse Dixit, 60 Hastings L.J.
1371, 1379 (2009).
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law enforcement. See 1923 Cal. Stat. 695, 696-97, 701; 1923 Conn. Pub. Acts
3707, 3707-10; 1923 N.D. Laws 379, 380-82; 1923 N.H. Acts 138, 138-39; 1925
Ind. Acts 495, 495-98; 1925 Or. Laws 468, 468-71. Other states later strengthened
existing laws requiring a law-enforcement-issued permit to purchase firearms.
Michigan, for example, required applicants to demonstrate that they had not been
convicted of a felony or adjudicated insane. See 1927 Mich. Pub. Acts 887, 887-
88. And New Jersey limited purchase permits to people “of good character
and . . . good repute in the community,” and increased its waiting period from one
day to seven days to facilitate background investigations. See 1927 N.J. Laws 742.
Others, including Hawaii and Massachusetts, created permit requirements like
those in the Sullivan Act, under which prospective purchasers first had to obtain
pre-approval from law enforcement before they were eligible to buy firearms. See
1925 Haw. Sess. Laws 790, 793; 1927 Mass. Acts 413, 415-16.
In 1930, the National Conference of Commissioners on Uniform State Laws
approved legislation based on the USRA Model Act, which expanded the waiting
period to 48 hours to provide additional time for law enforcement to complete an
investigation into the fitness of a prospective firearm purchaser (the “Uniform
Firearms Act”). See Nat’l Conf. on Uniform State Laws, Report of Comm. on Act
to Regulate the Sale & Possession of Firearms 563-67 (1930). The Act tied its
background check requirement to prohibitions on the sale of firearms to “any
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person under the age of eighteen or to one [a seller] [had] reasonable cause to
believe [had] been convicted of a crime of violence, or [was] a drug addict, an
habitual drunkard or of unsound mind.” Id. It required dealers to submit detailed
purchaser information to law enforcement within six hours of an application so an
investigation could be conducted within the allotted 48 hours. Id.; see also
Sportsmen Fight Sullivan Law, 23 J. Crim. L. & Criminology 665 (1932).
The Uniform Firearms Act was adopted in some form by Pennsylvania,
South Dakota, Washington, and Alabama, and enacted by Congress for the District
of Columbia. See 1931 Pa. Laws 497; 1935 S.D. Sess. Laws 355; 1935 Wash.
Sess. Laws 599; 1936 Ala. Laws 51; 47 Stat. 650 (1932). Texas, too, married
prohibitions on gun ownership by unreliable or dangerous people with a
background check requirement to enforce the prohibitions. It forbade the sale of
pistols to minors and people in the “heat of passion” and required purchasers to
obtain a “certificate of good character” from a justice of the peace or judge before
they could purchase a pistol. See 1931 Tex. Gen. Laws 447, 447-48.
Like § 18-12-112, many of these historical background check laws applied
to all transfers of firearms, including sales, loans, or gifts by unlicensed persons.
Oregon’s 1913 law made it unlawful for “any person” to “sell at retail, barter, give
away or dispose of [any pistol or revolver] to any person whomsoever” unless that
person had obtained a permit to purchase following a background investigation.
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1913 Or. Laws 497, 497. North Carolina’s 1919 statute likewise made it “unlawful
for any person, firm or corporation . . . to sell, give away or dispose of” any pistol
unless the “purchaser or receiver” had a valid permit to purchase. 1919 N.C. Sess.
Laws 397, 397. Missouri’s 1921 law was even more explicit, providing that “no
person . . . shall directly or indirectly buy, sell, borrow, loan, give away, trade,
barter, deliver or receive” any handgun unless the recipient had a permit. 1921
Mo. Laws 691, 692. State laws incorporating the language of the USRA Model
Act also applied to both dealers and unlicensed persons, and provided that “no
person” could “sell, deliver, or otherwise transfer” a firearm without following the
law’s record keeping, law enforcement notification, and waiting period
requirements. See, e.g., 1923 N.D. Laws 379, 381-82; 1923 N.H. Laws 138, 139-
40; 1925 Ind. Acts 495, 497-98; 1925 Mich. Pub. Acts 473, 474. Other state laws
reached unlicensed persons by forbidding “any person [to] lend or give a firearm to
another or otherwise deliver a firearm contrary to the provisions of [the state
laws].” 1931 Pa. Laws 497, 501; accord 1935 S.D. Sess. Laws 355, 357; 1935
Wash. Sess. Laws 599, 603; 1936 Ala. Acts 51, 54. Finally, in legislation adopted
in 1927, both Hawaii and Michigan forbade the receipt of a pistol by sale, gift, or
loan from anyone, including unlicensed persons, unless the recipient obtained a
permit to purchase that required an inquiry into a purchaser’s background. See
1927 Haw. Sess. Laws 209, 211; 1927 Mich. Pub. Acts 887, 887-88.
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As this history demonstrates, investigations into a prospective purchaser’s
background prior to the transfer of a firearm are at least as longstanding as the
regulations found presumptively lawful by the Supreme Court in Heller.
Background inquiries were regularly mandated by laws requiring a short waiting
period between purchase and delivery, and were enacted alongside—and in order
to effectuate—prohibitions on transferring firearms to felons, minors, and the
mentally ill. Background check laws therefore “harmonize[] with the historical
traditions associated with the Second Amendment guarantee,” Peterson, 707 F.3d
at 1211 (internal quotations omitted), and are presumptively valid under Heller.
That should end the inquiry.
II. BACKGROUND CHECKS ARE PROVEN AS AN EFFECTIVE TOOL FOR
REDUCING FIREARM VIOLENCE AND SAVING LIVES, AND ARE NOT
UNDULY BURDENSOME.
Even if this Court were to find that Colorado’s background check law did
burden rights protected by the Second Amendment, Appellants still could not
overcome the presumption of constitutionality because the law easily satisfies
intermediate scrutiny.5
“To pass constitutional muster under intermediate scrutiny,
5 This Court has previously applied intermediate scrutiny in Second
Amendment challenges to firearm regulations, including in challenges to laws that
categorically prohibit firearm possession; if intermediate rather than strict scrutiny
is appropriate when analyzing outright prohibitions on firearm ownership, it is
surely appropriate when considering a law, like § 18-12-112, that imposes at most
a minimal burden on conduct protected by the Second Amendment. See HuitronGuizar,
678 F.3d at 1169; Reese, 627 F.3d at 802.
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the government has the burden of demonstrating that its objective is an important
one and that its objective is advanced by means substantially related to that
objective.” Reese, 627 F.3d at 802 (internal quotations omitted). As Appellee
persuasively shows, the government interests in ensuring public safety and
reducing crime are unquestionably important. See Appellee Br. at 38. And
expanding background checks to firearm transfers by unlicensed persons is
substantially related to these important interests.
Requiring background checks for firearm transfers by unlicensed individuals
closes a gaping loophole in federal law that is all too often exploited by criminals
and other dangerous, prohibited persons, and provides law enforcement with a
valuable crime-fighting tool by improving their ability to trace crime guns. As a
result, mandatory background checks for unlicensed transfers have proven
effective in reducing violence and firearm-related crime across the country. They
have also proven effective in Colorado, and have not been unduly burdensome.
This Court should reject Appellants’ challenge to this common-sense regulation.
A. Requiring background checks on all firearm transfers closes a
significant loophole in federal law and provides law enforcement
with a valuable crime-fighting tool.
1. Closing the Background Check Loophole. Under federal law, several
categories of individuals are prohibited from purchasing or possessing a firearm—
including, among others, felons and domestic violence misdemeanants, persons
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subject to certain domestic violence restraining orders, and those who pose a
danger because of severe mental illness. See 18 U.S.C. § 922(d), (g). To help
keep firearms out of the hands of these prohibited individuals, federal law requires
licensed firearms dealers to conduct background checks on prospective firearm
transferees. See Brady Handgun Violence Prevention Act of 1993, Pub. L. No.
103-159, 107 Stat. 1536.
The requirement that licensed dealers conduct background checks has
proven effective in keeping guns from prohibited purchasers. From its inception in
March 1994 through December 2012, the Brady Act has subjected roughly 148
million applications for firearm transfers or permits to background checks, and has
denied more than 2.4 million applications because the potential purchasers were
legally ineligible. See U.S. Department of Justice, Background Checks for
Firearm Transfers: 2012 Statistical Tables (December 2014),
http://1.usa.gov/1DaX5UW.
But a major loophole in federal law allows prohibited persons to obtain
firearms without a background check. Because the federal requirement to conduct
background checks applies only to licensed dealers, unlicensed, private parties are
free to sell or transfer firearms without any checks at all. And while these parties
may not knowingly transfer a firearm to a prohibited recipient, they may otherwise
sell or give him a gun with no questions asked. This background check loophole
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poses a significant threat to public safety, as millions of firearm transfers
nationwide take place every year between unlicensed parties. See Cook & Ludwig,
Guns in America: Results of a Comprehensive National Survey on Firearm
Ownership and Use (May 1996), http://bit.ly/1p862I4.6

Unsurprisingly, in states that have not closed this loophole, criminals and
other prohibited individuals turn to the unregulated market to obtain firearms
without background checks. See Webster & Wintemute, Effects of Policies
Designed to Keep Firearms from High-Risk Individuals, Annual Review of Public
Health (2015) (“Considerable evidence has demonstrated that criminals and
firearm traffickers regularly exploit weaknesses in federal firearm
laws. . . . [particularly] the Brady Act’s exemption of background checks and
record keeping for firearm transfers by private gun owners.”). A national survey of
state prison inmates revealed that roughly 80 percent of those who used a firearm
in a crime acquired it in a private transfer. See U.S. Department of Justice, Survey
of Inmates in State and Federal Correctional Facilities: Firearm Use by Offenders
(Feb. 28, 2007), http://www.bjs.gov/content/pub/pdf/fuo.pdf.
6 As technology makes it easier for unlicensed sellers to find potential
buyers online, the unregulated market for firearms is growing exponentially. A
recent study noted that in the 20-month period from December 2011 to August
2013, the number of guns advertised for sale by unlicensed sellers on a popular
website, Armslist.com (http://www.armslist.com), grew sixfold from 12,294 to
83,204. See Webster & Wintemute, Effects of Policies Designed to Keep Firearms
from High-Risk Individuals, Annual Review of Public Health (2015).
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The threat of dangerous, prohibited persons avoiding background checks and
acquiring illegal guns from unlicensed sellers is not a theoretical concern. When
Aaron Joe Newport tried to buy a gun from a licensed dealer and was denied
because a background check revealed a prohibiting domestic violence conviction,
he simply turned to the Internet to find an unlicensed seller. See Everytown,
Online and Off the Record 2-3 (Sept. 2014), http://bit.ly/1Bhinln. At a parking lot
meeting, without a background check, he bought a .40-caliber Springfield XD
handgun and used it to shoot his ex-girlfriend, Monique Williams, in the head,
killing her, before killing himself. Id.
John Schick was similarly prohibited from buying or possessing firearms—
in his case, because he had been adjudicated mentally ill—and when he tried to
purchase a gun from a licensed dealer, he failed the required background check.
See Michael A. Fuoco & Sadie Gurman, New Mexico man regrets selling guns
used in Western Psych shootings, Pittsburgh Post-Gazette, Mar. 31, 2012. But four
months later, he found an unlicensed seller in New Mexico who sold him two
handguns with no background check required. After buying the guns, he used
them to kill one person and injure seven more at a psychiatric institute before being
fatally shot by police. Id.
These are but two examples from a needlessly long list of tragedies that
could have been averted if unlicensed sellers were required to conduct the same
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background checks as licensed dealers. Colorado closed the background check
loophole to prevent tragedies like these.
2. Helping Law Enforcement Fight Crime. Requiring background checks
on gun sales or transfers by unlicensed persons also helps law enforcement to
investigate firearm crimes. When law enforcement agencies—federal, state, local,
and foreign—recover a gun at a crime scene, they may submit the serial number of
the weapon to the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”)
for tracing. ATF, in turn, determines the chain of custody of the weapon by
contacting the manufacturer, distributor, and licensed dealer who first offered the
firearm for sale. The dealer reviews its records to identify the first retail purchaser,
and ATF can interview that purchaser to determine if he or she was involved in the
crime or whether the gun had been previously lost, stolen, or transferred to another
person. In 2013, ATF received more than 245,000 firearm trace requests from law
enforcement agencies in the United States. See ATF, Firearms Trace Data-2013,
https://www.atf.gov/content/About/statistics/firearms-trace-data-2013.
The ability of unlicensed persons to transfer firearms to other parties without
any background check or recordkeeping impedes ATF’s ability to trace weapons
used in crimes, because more than 85 percent of the firearms submitted to ATF for
tracing “are in the possession of someone other than their first retail purchaser
when [the relevant crimes] are committed.” Wintemute, Background Checks for
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Firearm Transfers, 23 (2013), http://www.ucdmc.ucdavis.edu/vprp/. Unlicensed,
undocumented gun transfers thus routinely hinder law enforcement investigations
by creating missing links in the chain of custody.
There are countless examples; Darien Richardson’s case is but one. She was
murdered during a home invasion on January 8, 2012. The .45 caliber handgun
used to kill her was traced to a Maine gun show, but because the gun was sold
there between unlicensed individuals, the police declared it a cold case. Because
“[t]here’s no documentation, no bill of sale, no background check,” said Portland
Police Chief Michael Sauschuck, “we have no idea where that weapon went after
that (sale) [sic] or how many times it changed hands.” See Kevin Miller, Many
sales of firearms in Maine fall under the radar,” Maine Sunday Telegram, Feb. 10,
2013.
By helping to fill the blanks in the chain of custody, requiring background
checks for transfers by unlicensed individuals can make ATF tracing more
effective and help law enforcement solve crimes. Closing the background check
loophole helps law enforcement investigate crimes that do occur just as it helps to
avert crime in the first instance by keeping guns out of the hands of dangerous,
prohibited persons.
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B. Substantial evidence demonstrates that requiring background checks
for transfers by unlicensed persons is effective in reducing gun
violence and firearm crime.
1. The National Picture. There is overwhelming evidence that background
checks reduce gun violence and save lives. Currently, seventeen states7 and the
District of Columbia require a background check for all handgun transfers,
including transfers by unlicensed persons. In states that require background checks
for all handgun transfers, data from the Federal Bureau of Investigation and
Centers for Disease Control and Prevention indicate that 46 percent fewer women
are shot to death by their intimate partner, 48 percent fewer law enforcement
officers are shot to death with handguns that do not belong to them, and there are
48 percent fewer gun suicides. See Everytown, State Background Check
Requirements and Rates of Domestic Violence Homicide, http://every.tw/1Aj9HZj
(analyzing FBI’s 2008-2012 Supplementary Homicide Reports); State Background
Check Requirements and Rates of Firearm Homicide Against Law Enforcement,
http://every.tw/1Aj9JAy (analyzing FBI’s 2000-2011 Law Enforcement Officers
Killed in Action database); State Background Check Requirements and Suicide,
http://every.tw/1Aj9CVz (analyzing Centers for Disease Control and Prevention’s
2008-2012 Fatal Injury Reports). Further, there is 48 percent less gun trafficking
7 These states are California, Colorado, Connecticut, Delaware, Hawaii,
Illinois, Iowa, Maryland, Massachusetts, Michigan, Nebraska, New Jersey, New
York, North Carolina, Pennsylvania, Rhode Island, and Washington.
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in cities where state law requires background checks on all handgun sales. See
Webster et al., Effects of State-Level Firearm Seller Accountability Policies on
Firearm Trafficking, 86 J. Urban Health 525 (2009).
A recent analysis by Johns Hopkins University that examined 28 studies
published between 1999 and 2014 on the effects of gun policy concluded that there
is “[m]ounting evidence” that “laws intended to increase the accountability of
firearm sellers to avoid risky transfers of firearms”—including those requiring
comprehensive background checks—“are effective in curtailing the diversion of
guns to criminals.” See Webster and Wintemute, supra. Other studies have found
that “background checks and denial of purchases by prohibited persons reduce risk
of arrest [for subsequent firearm-related or violent crimes] among individuals who
are directly affected,” that “comprehensive background check policies interfere
with the operations of criminal firearms markets and particularly with firearm
trafficking,” and that “the adequacy of background checks performed under current
policies is related to firearm homicide rates.” Wintemute, supra at 25 (collecting
studies).
2. The Missouri experience. Just as national data show how implementing
comprehensive background checks can reduce gun violence and improve public
safety, Missouri’s experience shows that repealing a background check
requirement can have the opposite effect. Beginning in 1921, Missouri required
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gun buyers to obtain a permit before they could acquire a handgun; that permit was
only awarded to applicants who passed a background check. Missouri repealed
that law effective August 28, 2007. The effects of the repeal were felt
immediately.
After repeal, Missouri’s firearm homicide rate increased dramatically.
Before repeal, the firearm homicide rate in Missouri was “relatively stable,
fluctuating around a mean of 4.66 per 100,000 population per year.” Webster et
al., Effects of the Repeal of Missouri’s Handgun Purchaser Licensing Law on
Homicides, 91 J. Urban Health 293 (2014). For the post-repeal period 2008-2010,
the mean rose to 5.82 per 100,000. Id. And even “after controlling for changes in
rates of unemployment, poverty, burglary, incarceration, and law enforcement
officers along with other state laws,” the repeal was associated with a 25 percent
increase in firearm homicide rates. Id.
The dramatic increase in firearm homicides in Missouri went against all of
the national and regional trends. Nationally, the mean homicide rate declined
5.5 percent during the same time that Missouri’s rate skyrocketed. Id. And in the
eight states bordering Missouri, the homicide rate attributable to firearms likewise
decreased 2.2 percent during this time period. Id. Moreover, “there were no
statistically significant changes” and certainly no significant upward changes, in
the firearm homicide rate in any of these bordering states. Id.
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What is more, this increase in homicide rates in Missouri occurred only for
homicides committed with guns; even while the gun homicide rate soared, the nonfirearm
homicide rate remained constant. “Regression analyses indicated that
Missouri’s repeal . . . was associated with no change in the age-adjusted nonfirearm
homicide rate.” Id. In the end, researchers concluded that “the law was
associated with an additional 55 to 63 murders per year in Missouri between 2008
and 2012 than would have been forecasted had [Missouri’s background check law]
not been repealed.” Id. at 298.
The repeal in Missouri had troubling effects on more than just firearm
homicides. First, “[t]he weakening of Missouri’s gun laws may have also
contributed to gun trafficking to border states that regulate handgun sales by all
sellers”: From 2006 to 2012, the number of crime guns originally sold in Missouri
that were recovered by law enforcement in Illinois and Iowa—both of which
require background checks on sales by unlicensed sellers—increased by 37 percent
while the overall number of crime guns recovered decreased by 6 percent. Id. at
299. Second, within Missouri itself, the repeal “coincided with a sharp increase in
the percentage of crime guns recovered by police in Missouri that had been
originally sold by in-state retailers”: from 56.4 percent in 2006 to 71.8 percent in
2012. Id. at 294. Finally, “there was a twofold increase in the percentage of guns
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[in Missouri] that had unusually short intervals between the retail sale and the
recovery by police, an indicator of firearm diversion or trafficking.” Id.
8
The nationwide and Missouri data confirm that requiring background checks
for gun transfers by unlicensed parties reduces crime and saves lives.
C. Colorado’s expanded background check requirements are already
providing public safety benefits without imposing meaningful
burdens on gun buyers or unlicensed sellers.
Under Colorado’s background check law, the Colorado Bureau of
Investigation (“CBI”) conducts background checks of prospective purchasers in the
state. See Colorado Bureau of Investigation, InstaCheck Unit,
http://1.usa.gov/1DkpIFj. Preliminary data released by CBI suggests that the
expansion of Colorado’s background check system is working. In its first 18
months, § 18-12-112 has blocked gun sales to hundreds of people legally ineligible
to purchase or possess a firearm. In that period, CBI conducted 14,663
background checks on gun transfers between unlicensed parties that took place at
8 Relatedly, a national survey examining the effect of a comprehensive
background check policy on firearm trafficking reviewed the patterns of crime
guns that were originally sold by an in-state retailer that were recovered at a crime
scene within a year of initial sale, and that were in possession of someone other
than the original purchaser. The study revealed that 18 of the 20 cities with the
lowest percentage of such trafficked guns were in states with comprehensive
background check policies; of the 20 cities with the highest percentages, only 3
were in such states. Wintemute, supra at 26.
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licensed dealers. See Attachment A.9
CBI blocked a total of 198 of those
transactions—transactions that would otherwise have been completed, resulting in
the transfer of firearms to criminals and other prohibited individuals, including
people convicted of felony assault and sexual assault, people under restraining
orders, and people prohibited from possessing firearms due to severe mental
illness. Id.10
There is another indicator that the new law is working. An Everytown
analysis of gun advertisements posted online by unlicensed sellers in Colorado
found that they are now four times as likely to explicitly refer to a federally
licensed gun dealer or mention the phrase “background check” as are
advertisements posted in nearby states that do not require a background check for
unlicensed transfers.11 These results suggest that Colorado unlicensed sellers are
alerting potential purchasers to the new background check requirements,
presumably deterring additional prohibited individuals from even attempting to
purchase guns in Colorado.
9 The 14,663 background checks were for unlicensed gun sales at sites other
than gun shows. See Attachment A. CBI conducted an additional 6,172 checks for
private sales at gun shows, bringing the total to 20,835 checks for all unlicensed
sales. Id. Unlicensed sales at gun shows have been subject to background checks
in Colorado since 2000.
10 CBI blocked an additional 100 sales at gun shows, bringing the total to
298 for all unlicensed sales. See Attachment A.
11 To conduct this study, Everytown collected ads offering guns for sale or
trade placed by self-described unlicensed sellers in Colorado and nearby states.
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Finally, it is important to note that there is no evidence that the requirement
to conduct a background check has imposed any substantial burdens on lawful
transfers of firearms by unlicensed persons in Colorado. As of December 2014,
485 licensed dealers had listed themselves on the website GunBroker.com as
available and willing to facilitate transfers between unlicensed parties—about a
quarter of the 1,987 total licensed dealers in the state. Assuming that this list is
exhaustive, the data indicate that 94.8 percent of Coloradans currently live within
10 miles of a gun dealer who is conducting background checks for unlicensed
sellers.12 This statistic is a remarkable one, as it uses only dealers listing
themselves on GunBroker.com, and is therefore likely a conservative estimate.
Presumably not every dealer willing to conduct background checks for unlicensed
sellers advertises on this website.
That § 18-12-112 has not imposed significant burdens on the secondary
market for firearms in Colorado is unsurprising: national data indicate that
background checks are not unduly burdensome anywhere. Federally licensed
12 To conduct this analysis, Everytown obtained address information from
ATF on the nearly 500 licensed dealers currently offering to perform background
checks. See ATF, Listing of Federal Firearms Licensees (FFLs) – 2015, at
http://1.usa.gov/1ps0dJa. This data was overlaid on population by census block
group (“CBG”) over the period 2007-2011 and used to calculate the share of
geographic area of each CBG that was within 10 miles of a dealer. On the
assumption that population density of each CBG is constant, the share of the
geographic area of the CBG within 10 miles of a dealer approximates the share of
the population of each CBG within 10 miles of a dealer.
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dealers have been effectively conducting background checks using the National
Instant Criminal Background Check System (NICS) for two decades. In so-called
“Point of Contact” states, like Colorado, dealers call a state law enforcement
agency that conducts NICS checks for all gun sales or permits;13 in most states, a
firearms dealer simply contacts NICS directly, either online or by calling a hotline.
A NICS operator then runs a would-be purchaser’s information through the
background check system; based on the results of the search, the NICS operator
may tell the dealer to proceed with or deny the sale. This process is simple and
quick: over 91 percent of NICS checks are completed in 90 seconds. See Federal
Bureau of Investigation, Criminal Justice Information Services Division, NICS
Operations Report, http://www.fbi.gov/about-us/cjis/nics/reports/2012-operationsreport.
If potentially prohibiting criteria exist and NICS concludes that more
information about the buyer is required in order to make a determination, NICS
can also advise the dealer to delay the sale. NICS then has three business days to
determine whether the buyer is prohibited from purchasing a gun. If NICS cannot
13 Besides Colorado, California, Connecticut, Florida, Hawaii, Illinois,
Nevada, New Jersey, Oregon, Pennsylvania, Tennessee, Utah, and Virginia are
Point of Contact — or “POC” states. Eight states are “partial POC” states,
meaning they run background checks on handgun sales or permits, while the FBI
performs NICS checks for long gun purchases: Iowa, Maryland, Michigan,
Nebraska, New Hampshire, North Carolina, Washington, and Wisconsin. See
Nat’l Instant Criminal Background Check System, NICS Point of Contact States &
Territories, http://www.fbi.gov/about-us/cjis/nics/poc.
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make a final determination within three business days, it is up to the dealer’s
discretion whether to proceed with the transfer.
Requiring a background check for every gun transfer simply expands the
existing system to include transfers between unlicensed individuals. When an
unlicensed seller and buyer want to transfer a firearm, they meet at a licensed
dealer who conducts the background check before the gun is transferred. All gun
dealers are eligible to conduct these checks, see Open Letter from Chad J. Yoder,
Chief, Firearms and Explosives Industry Division, to All Federal Firearms
Licensees (Jan. 16, 2013), https://www.atf.gov/files/regulationsrulings/procedures/031513-open-letter-atf-procedure-2013-1.pdf,
and many dealers
take the additional step of listing themselves on the website GunBroker.com,
attesting that they are “willing to handle firearms transfers for buyers in [their]
state,” see GunBroker, FFL SignUp, http://www.gunbroker.com/FFL/
DealerServices.aspx. Many gun dealers appreciate the opportunity to conduct
these background checks even when the firearm is being sold by an unlicensed
person, because “[t]he increased foot traffic at participating retailers provides
opportunities to develop new customers.” Wintemute, supra at 12. As one retailer
recalled, having gun purchasers visit their stores when buying from unlicensed
sellers creates business opportunities, since “‘when they come in to do the paper,
everybody needs bullets and cleaning supplies.’” Id.
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As in the rest of the states that have extended background check
requirements to unlicensed sellers, Colorado’s law is already keeping firearms out
of the hands of prohibited purchasers. Colorado requires background checks on all
firearm transfers to ensure compliance with the laws governing eligibility for
firearm possession and purchase, and has implemented the requirement
consistently with the Second Amendment and without burdening individuals’
ability to acquire firearms in any meaningful way.
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CONCLUSION
The district court’s decision should therefore be affirmed.
April 29, 2015 Respectfully submitted,
PETER C. CANFIELD
JONES DAY
1420 Peachtree Street, N.E., Suite 800
Atlanta, Georgia 30309
/s/ Sparkle L. Sooknanan
GREGORY A. CASTANIAS
SPARKLE L. SOOKNANAN
JONES DAY
51 Louisiana Ave. N.W.
Washington, DC 20001
Telephone: (202) 879-3435
Email: [email protected]

Counsel for Amicus Curiae
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CERTIFICATES OF COMPLIANCE
1. I hereby certify that the foregoing brief complies with the typevolume
limitation of Fed. R. App. P. 29(d) and Fed. R. App. P. 32(a)(7)(B)
because it contains 6,829 words, excluding the parts of the brief exempted by Fed.
R. App. P. 32(a)(7)(B)(iii), as counted using the word-count function on Microsoft
Word 2007 software.
2. This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has
been prepared in a proportionally spaced typeface using Microsoft Word 2007 in
14-point Times New Roman font.
3. Pursuant to this Court’s guidelines on the use of the CM/ECF system,
I hereby certify that: a) all required privacy redactions have been made; b) the hard
copies that have been submitted to the Clerk’s Office are exact copies of the ECF
filing; and c) the ECF submission was scanned for viruses with the most recent
version of McAfee VirusScan Enterprise (last updated March 1, 2013) and,
according to the program, is free of viruses.
April 29, 2015 /s/ Sparkle L. Sooknanan
SPARKLE L. SOOKNANAN
Counsel for Amicus Curiae
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32
CERTIFICATE OF SERVICE
I hereby certify that, on the 29th day of April, 2015, I electronically filed the
original of the foregoing document with the clerk of this Court by using the
CM/ECF system, which served counsel of record at their designated electronic
mail addresses.
I also certify that on the 29th day of April, 2015, I caused seven paper copies
of the foregoing brief to be sent by for delivery within two business days, to the
Clerk of Court, United States Court of Appeals for the Tenth Circuit, 1823 Stout
Street, Denver, Colorado 80257.
April 29, 2015 /s/ Sparkle L. Sooknanan
SPARKLE L. SOOKNANAN
Counsel for Amicus Curiae
Appellate Case: 14-1290 Document: 01019423108 Date Filed: 04/29/2015 Page: 41
BACKGROUND CHECKS CONDUCTED BY CBI JULY 2013-DECEMBER 2014
Total checks Private (total) Private (gun show) Private (non-gun show)
Approved Denied Total Approved Denied Total Approved Denied Total Approved Denied Total
Jul. 2013 19,206 390 19,596 556 5 561 217 2 219 339 3 342
Aug. 2013 26,203 513 26,716 1,003 11 1,014 425 5 430 578 6 584
Sep. 2013 23,366 492 23,858 800 15 815 254 8 262 546 7 553
Oct. 2013 25,106 525 25,631 1,043 13 1,056 398 7 405 645 6 651
Nov. 2013 29,433 548 29,981 1,335 12 1,347 399 2 401 936 10 946
Dec. 2013 34,724 640 35,364 1,389 17 1,406 632 12 644 757 5 762
Jan. 2014 23,647 383 24,030 1,149 14 1,163 472 6 478 677 8 685
Feb. 2014 27,505 669 28,174 1,260 31 1,291 439 10 449 821 21 842
Mar. 2014 28,976 534 29,510 1,373 20 1,393 462 9 471 911 11 922
Apr. 2014 24,254 453 24,707 1,205 15 1,220 365 7 372 840 8 848
May 2014 22,805 446 23,251 1,310 17 1,327 383 3 386 927 14 941
Jun. 2014 20,147 376 20,523 1,026 4 1,030 110 1 111 916 3 919
Jul. 2014 21,548 404 21,952 1,184 25 1,209 296 10 306 888 15 903
Aug. 2014 24,516 501 25,017 1,113 20 1,133 263 4 267 850 16 866
Sep. 2014 23,268 440 23,708 1,141 16 1,157 171 3 174 970 13 983
Oct. 2014 27,180 618 27,798 1,289 20 1,309 280 6 286 1009 14 1023
Nov. 2014 28,930 585 29,515 1,241 15 1,256 262 2 264 979 13 992
Dec. 2014 36,666 659 37,325 1,418 28 1,446 344 3 347 1074 25 1099
Total 467,480 9,176 476,656 20,835 298 21,133 6,172 100 6,272 14,663 198 14,861
SOURCE: COLORADO BUREAU OF INVESTIATION
ATTACHMENT A
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Appellate Case: 14-1290 Document: 01019423108 Date Filed: 04/29/2015 Page: 42

Colorado Outfitter’s Association

Colorado Outfitter's Association