concurring in part and dissenting in part.
[49 I concur with my colleagues' disposition in Part IV of the opinion, but I respectfully dissent to Part III, which deals with the plaintiffs' challenge to H.B. 18-1224. In light of older Colorado precedent and recent United States Supreme Court jurisprudence, I conclude that a reasonablenéss test cannot be applied to the fundamental right to possess a firearm for self-defense under article II, section 18 of the Colorado Constitution. I would therefore remand with directions to determine whether the prohibitions imposed by H.B. 18-1224 conflict with the text, history, and tradition of firearm regulation under article II, section 18. If they do, the law cannot stand.
I. The Protections Afforded by Article II, Section 18 are Broader and Certainly No Less Than Those Guaranteed by the Second Amendment
11.50 I believe that article II, section 18 can only be understood in the overarching context of the Second Amendment to the United States Constitution as interpreted by 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 L.Ed.2d 894 (2010). The United States Constitution's Second Amendment provides, in pertinent part, "the right of the people to keep and bear arms; shall not be *779infringed." Article II, section 18 of the Colorado Constitution specifies: "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...." That provision, at a minimum, contains the protections of the fundamental right guaranteed by the Second Amendment to the United States Constitution. There are at least two reasons this is so.
51 First, Colorado cases have concluded that the Colorado Constitution provides broader protections of its citizens' civil liberties than its federal counterpart in areas of free expression and searches and seizures. It stands to reason that the rights afforded under article II, section 18 are broader than those guaranteed by the Second Amendment. See, e.g., Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044, 1056 (Colo.2002) (Colorado Constitution "requires a more substantial justification from the government than is required by the Fourth Amendment."); People v. Ford, 773 P.2d 1059, 1066 (Colo.1989) (Colorado Constitution "extends broader protection to freedom of expression than does the first amendment to the United States Constitution."). Compare People v. Carbajal, 2014 CO 60, ¶¶ 12-15, 328 P.3d 104 (even a previous offender has the right to defend himself from imminent threat of harm to his person, home, or property), with Heller, 554 U.S. at 626, 128 S.Ct. 2783 (even the fundamental right under the Second Amendment does not cast doubt on prohibitions against felons possessing firearms), In his brief, the Governor concedes that article II, section 18 "protects a broader class of rights than the Second Amendment. ..." See Bock v. Westminster Mall Co., 819 P.2d 55, 59 (Colo.1991) (clarifying that Colorado Constitution could provide greater protections than its federal counterpart).
[ 52 Second, the supreme court has treated the right guaranteed by article II, section 18 as a fundamental right. City of Lakewood v. Pillow, 180 Colo. 20, 22-23, 501 P.2d 744, 745 (1972), is an example. A city of Lakewood ordinance prohibited the possession or carrying of any handgun except while in one's own domicile or while traveling to a range, gallery, or hunting area. The supreme court overturned this ordinance, holding that it was too general in its scope because some of the prohibited activities, e.g., possessing a firearm in a place of business for purposes of self-defense, were constitutionally protected by article II, section 18. Id. Even though the supreme court saw the ordinance as a lawful exercise of the police power, the court found that the ordinance offended a fundamental liberty: _- ..
Even though the governmental purpose may be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.
Id. at 28, 501 P.2d at 745,
€ 53 Pillow did not cite but did follow the precedent established by People v. Nakamura, 99 Colo, 262, 62 P.2d 246 (1986). There, Mr. Nakamura was charged under a statute outlawing hunting or firearm possession, by resident aliens. He was charged with unlawful possession of upland game and unlawful possession of a firearm. He pleaded guilty to the possession of game but raised in defense to the possession of a firearm charge his right under article II, section 18. The trial court quashed the unlawful firearm possession charge. In affirming, the Colorado Supreme Court noted that while the state was free to preserve wild game for Colorado citizens, it could not disarm any class of. persons or deprive them of the rights afforded by article II, section 18. .
1 54 T- conclude that the text and history of this constitutional guarantee demonstrate that firearm possession as secured by article II, section 18 is a basic and fundamental right that is at least equal to the right. afforded by the Second Amendment and that it is, in fact, likely broader and more robust. Historically, Colorado has not restricted the possession of firearms and the use of firearms that H.B. 18-1224 addresses. Jurisprudence interpreting and applying the Second Amendment should therefore be helpful in applying article II; section 18. Where a statute seeks to deprive Colorado citizens of a "right guaranteed under section 18, article 2 of the Constitution," that statute "contra*780venes the constitutional guaranty and therefore is void." Id. at 265, 62 P.2d at 247.
II, The Robertson Test:
~ 155 Agreeing with an argument advanced by the Governor, the majority concludes that because the legal issues before us are uniquely based on the Colorado Constitution and because Robertson v. City & County of Denver, 874 P.2d 325 (Colo.1994), préseribes a reasonableness test for analyzing gun control statutes and the protections afforded by article II, section 18, we need not concern ourselves with recent United States Supreme Court decisions interpreting the Second Amendment and applying it to the states. I disagree because Robertson did not consider the question of whether the right to keep and bear arms was fundamental. . Had it done so, especially in light of Heller and. McDonald, I believe it would have treated the right as fundamental, {s a
T 56 I depart from the majority's view that Robertson applied a reasonableness test regardless of whether that right was a fundamental constitutional right. Robertson concluded that it was not necessary to determine the status of the right afforded by article II, section 18 and held that it was error for the trial court to first determine whether the gun ordinance in question implicated a fundamental right. Robertson, 874 P.2d at 331. "[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 II, section' 18 of the Colorado. Constitution, a reviewing © court need not determine the, status of that right." Id. at 329. In his partial concurrence, Justice Vollack disagreed "with the majority's determination that this case does not require us to decide whether the right to bear arms is a fundamental right." Id, at 889 (Vollack, J., concurring in the result), In fact, he concurred in the result because he did not believe that article II, section 13 confers a right that "has been recognized as having a value essential to individual liberties in our society." Id. (Vollack, J., concurring in the result). He "would therefore hold that the right to bear arms is not a fundamental right." Id. (Vollack, J., concurring in the result). Of course, we now know that his analysis was wrong becauge Heller and McDonald have held that the right to bear arms is indeed a fundamental right and McDonald decreed that it applies to Colorado. McDonald, 561 U.S. at 750, 791, 130 S.Ct. 3020; Heller, 554 U.S. at 635, 128 S.Ct. 2783. Importantly, it is a fundamental right that is not "a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees...." McDonald, 561 U.S. at 780, 130 S.Ct. 3020.
T57 It is apparent to me that Robertson purposefully avoided considering the nature of the right to bear arms and, if it were to consider the question in light of Heller and McDonald, it would necessarily consider the right afforded by article II, section 18 to be fundamental.
1 58 We know now, in light of McDonald, that the Second Amendment right to keep and bear arms is fully applicable to the states, see id. at 748, 130 S.Ct. 3020, and as the Second. Amendment necessarily provides minimum protection of the right to bear arms, article II, section 18 could provide no less. « Consequently, Heller and McDonald are helpful in determining whether a state statute offends article II, section 18. Thus, one can reasonably conclude that if a state statute violates the Second Amendment, a fortiori, it violates article II, section 18. As noted by Judge Kozinski, 'dissenting in an order denying a petition for rehearing en bane: ‘
As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it's using our power as judges to constitutionalize our personal preferences.
*781Silveira v. Lockyer, 328 F.3d 567, 568, 569 (9th Cir.2008) (Kozinski, J., dissenting)1.
IIL. Heller and McDonald
T59 In 2008, the Supreme Gourt consid-Bred a ban on the possession of handguns enacted by the District of Columbia, Heller; 554 U.S. at 574, 128 8.0t. 2788. The ban prohibited the possession of a handgun except in the personal residence of the owner and required that the handgun be kept in an unloaded and inoperable status 'or secured with a trigger lock, Id. at 570, 128 S.Ct. 2788. Even though the ban was clearly within the police power of the District of Columbia city council, the Court struck it down, reasoning that it was unconstitutional because the Second Amendment protects the right to bear arms that are typically possessed by law-abiding citizens for lawful purposes. Id. at 627-29, 128 S.Ct. 2788. Heller observed that handguns, in particular, were commonly used. Id. at 625, 128 S.Ct. 2783. The ordinance sought to prohibit an entire class of firearms overwhelmingly chosen by Americans for defénding themselves, Id.
T 60 Because one of the core lawful purposes of the fundamental right afforded by the Second Amendment is self-defense, the purpose would be defeated by requiring a firearm to be kept in an inoperable condition. Id. at 630, 635, 128 S.Ct. 2783. Heller reasoned that a handgun ban would not satisfy any standard of serutiny because the Second Amendment should be afforded no lesser protection than other fundamental rights. Id. at 628-29, 128 S.Ct. 2783.
61 MeDonald took the additional step of holding "that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller." 561 U.S. at 791, 130 S.Ct. 3020. There, a city of Chicago ordinance banned the possession of a handgun in the city limits without a valid registration certificate. The same ordinance barred any registration of a handgun, In holding the ordinance to be unconstitutional, McDonald made clear that the Second Amendment right to bear arms was fundamental because it was "deeply rooted in this Nation's history and tradition" and should be accorded the same status as other rights incorporated in the Due Process Clause. Id. at 767, 130 S.Ct. 3020 (citation omitted). Therefore, the guarantee is fully binding on the states. Id. at 784-85, 130 S.Ct. 3020. Consequently, the Second Amendment right to bear arms is, like all other fundamental rights, fully applicable to the State of Colorado.
OT 62 Our supreme court has not addressed 'the application of a reasonableness test to the right to bear arms in the aftermath of Heller and McDonald. However, three divisions of this court have examined this issue.
168 In Trinen v. City & County of Denver, 58 P.3d 754, 757 (Colo.App.2002) (a decision by a division of this court with which the majority disagrees), the division held that the Robertson court "essentially applied the rational basis test" and "implicitly found that the right to bear arms is not a fundamental right." See also Town of Dillon v. Yacht Club Condos. Home Owners Ass'n, 2014 CO 37, ¶ 27, 325 P.3d 1032 (Where an "ordinance does not implicate a fundamental right" it must bear a rational relationship to a legitimate government interest or a "reasonable relationship between .the ordinance .and a legitimate government objective.").
{64 In 2010, in Students for Concealed Carry on Campus, L.L.C. v. Regents of the University of Colorado, 280 P.3d 18, 21 (Colo.App.2010), aff'd, 2012 CO 17, 271 P.3d 496, a division 'of this court applied the Robertson reasonable exercise test in evaluating whether the statute requiring a permit to carry a concealed handgun, sections 18-12201 to -216, C.R.S.2015, applied to universities.
*78265 Finally, in People v. Cisneros, 2014 COA 49, ¶ 21, 356 P.3d 877, the division addressed the constitutionality of section 18-18-407(1)(f), C.R.8.2015, which outlawed the possession of a firearm in furtherance of a drug offense. Taking Heller, McDonald, and federal circuit decisions into account, the panel "conclude[d] that the fundamental right conferred under the Second Amendment is the right for law-abiding, responsible citizens to bear arms for lawful purposes." Id. at 180. The division reasoned that because the statute at issue only addressed unlawful conduct, it. did not infringe on the Second Amendment right to bear arms for lawful purposes. Id. Further, the panel concluded that Heller did not call into question prohibitions on unlawful possession of firearms and thus saw "no reason to speculate that our supreme court would modify its holding in Robertson in light of Heller." Id,. at 1 85.
1 66 Even the Governor doubts the efficacy of using a Robertson standard of reasonableness in dealing with what is now, in my view, a fundamental right guaranteed by the See-ond Amendment. The Governor's brief urges us to adopt a two-part means end serutiny test that has been applied by some federal and state courts. Under this test, a court first addresses whether the challenged law burdens conduct that falls within the scope of the Second Amendment. See Colo. Outfitters Ass'n v. Hickenlooper, 24 F.Supp.3d 1050, 1066 (D.Colo.2014), vacated and remanded sub nom. Colorado Outfitters Ass'n v. Hickenlooper, 823 F.3d 537, 2016 WL 1105363 (10th Cir.2016). If the challenged legislation is protected by the Second Amendment, a court then applies a level of constitutional serutiny. The level of serutiny is applied on a case-by-case basis depending on how severely the right has been burdened. See id. at 1065-66. Colorado Outfitters adopted a two-step approach: first the court must decide whether the challenged law impacts firearms or firearms use and, if so, "then a court must determine what level of constitutional serutiny to apply." Id. at 1066.2
4167 Justice Breyer first discussed this test in his Heller dissent; 'he termed it an interest-balancing inquiry, See Heller, 554 U.S. at 689-90, 128 S.Ct. 2788 (Breyer, J., dissenting). However, the Court in Heller addressed this approach and rejected it by stating: "We know of no- other enumerated constitutional right whose core protection has been gqubjected to a freestanding 'interest-balancing" approach." Heller, 554 U.S. at 634, 128 S.Ct. 2783, The Court further asserted that "[a] constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all," Id. The: MeDonald Court reiterated this sentiment in rejecting the argument that the "scope of the Second Amendment right should be determined by judicial interest balancing," and that "this Court decades ago abandoned 'the. notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights.'" McDonald, 561 U.S. at 785-86, 130 S.Ct. 3020 (quoting Malloy v.. Hogan, 378 U.S. 1, 10-11, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964)).
168 McDonald also rejected any notion that an affront to the fundamental right to bear arms could be tested on a reasonableness standard when it disapproved the argument that state and local governments should be free to adopt "any gun control law that they deem to be reasonable." Id. at 783-84, 130 S.Ct. 8020. Of course, the arguments raised by the proponents of the gun legislation in both Heller and MeDonald stressed that the gun ban ordinances were reasonable of police
-T69 I am therefore compelled to conclude that the development of the law regarding the right to bear arms after Robertson casts doubt on the propriety of using a reasonable exercise test where a fundamental right is involved,
IV. How Should We Apply Article I, Section 18 in Light of Heller and ‘ MeDonald? .
T70 Here, we are concerned with a law that purports to control the type of integral *783parts of a firearm one may possess and how they are possessed. . HB. 18-1224 provides that "on and after July 1, 2018, a person who sells, transfers, or possesses a large-capacity magazine commits a class 2 misdemeanor." § 18-12-302(1)(a), C.R.S.2015. "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." § 18-12-301(2)(a)(I), C.R.98.2015. Those who purchased a large-capacity magazine prior to the effective date of the statute must maintain "continuous possession" of it. § 18-12-802(2)(a)(I) & (I1). The two-step test applied by Colorado Outfitters was adopted by United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir.2010). However, in Heller v. District of Columbia, 670 F.8d 1244 (D.C.Cir.2011) (Heller II ), Judge Kavanaugh addressed this test in his dissent and pointed out that such a test was contrary to the Supreme Court's holding in Heller because Heller (and McDonald) reli¢d "wholly on text, history, and tradition." Heller II, 670 F.3d at 1276 (Kavanaugh, J., dissenting). Judge Kavanaugh explained that the Court in Heller flatly rejected an interest-balancing approach suggested in the dissent of Justice Breyer.
' We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding 'interest-balancing' approach. The very enumeration of the right takes out of the hands of government-even the Third (Branch of Government-the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all.
Heller, 554 U.S. at 634, 128 S.Ct. 2783.
T71 Judge Kavanaugh also argued that McDonald's rejection of any inquiry into the analysis of "costs and benefits" of firearms restrictions emphasizes the Court's rejection of a strict or intermediate scrutiny approach to gun regulations. Heller II, 670 F.3d at . 1278 (Kavanaugh, J., dissenting). When an analysis is based on weighing the costs and benefits of firearms restrictions, it is engaged in balancing-something the Court in Heller explicitly rejected. If the proposed restriction affects the core right protected by the See-ond Amendment, it is unconstitutional. To determine whether a gun ban or regulation implicates that core right, one uses text, history, and tradition to determine whether such restrictions are longstanding and, thus, consistent with the Second Amendment. Id. at 1285 (Kavanaugh, J., dissenting). And Judge Kavanaugh adds the qualification that, even where a court might reject such a test, at a minimum it should adopt a strict seruti-ny review. Id. at 1290-91 (Kavanaugh, J., dissenting).
172 Judge Kavanaugh's approach was approved in Gowder v. City of Chicago, 923 F.Supp.2d 1110, 1113 (N.D.Ill.2012). There the court struck down a Chicago ordinance requiring a Chicago firearm permit before one could legally possess a firearm for self-defense. "(Alay attempt to dilute or restrict a core constitutional right with justifications that do not have a basis in history and tradition is inherently suspect." Id. at 1122-28. Additionally, at least one commentator proposes an adoption of the Kavanaugh approach to analyzing Second Amendment issues. Lindsay Colvin, Note, History, Heller, and High-Capacity Magazines: What Is The Proper Standard of Review for Second Amendment Challenges?, 41 Fordham Urb. L.J. 1041 (2014).
T 783 Therefore, although I doubt that H.B. 18-1224 could withstand any standard of heightened serutiny, any statute that purports to prohibit the fundamental guarantee of article II, section 18 should be challenged and presumed to be unconstitutional.
V.‘ History, Text, and Tradition
T 74 I am unaware of any time in Colorado's history where there has been a limitation on the magazines used in rifles or handguns. Nor am I aware of any tradition in limiting the type of possession one must have in order to legally possess a firearm or the magazine used in the firearm.3
*784As one commentator has explamed one of the core lawful purposes guaranteed by Heller and McDonald is the right to possess an operable firearm,. David B. Kopel, The History of Firearm Magazines and Magazine Prohibitions, 78 Alb. L.Rev. 849, 852-53 (2015), The District of Columbia ban in Heller, for example, required that guns be kept locked and unloaded. 554 U.S. at 628, 128 S.Ct. 2783. Heller recognized that an inoperable firearm was the same as no firearm. Id. at 628-31, 128 S.Ct. 2783. Magazines are an integral part of a firearm because they feed the ammunition and allow the weapon to operate. See Kopel, 78 Alb. L.Rev. at 852-53; cf. United States v. Gonzales, 792 F.3d 534, 537 (5th Cir.2015) (magazine is a component of a firearm).
176 Magazines and firearms with greater than ten round capacity have been in use for more than 400 years See Kopel, 78 Alb. L.Rev. at 852-53 (citing Lewis Winant, Firearms Curiosa 168-70 (2009)). Thirty-round magazines have been in use at least since 1927, Id. at 858-59. Since the 1960s, polymer-based twenty and thirty-round magazines have been commonly in use. Id. at 859. Double stack, polymer magazines have been used in handguns and rifles since 1979, increasing handgun capacity up to twenty-one rounds . Id. at 868.
T77 In addition, as. explained by Professor Kopel, "the vast majority of magazines today have a removable baseplate," allowing it to be "disassembled for cleaning," making it possible for owners to add "after-market extenders," thus increasing the capacity of the magazine; Id. H.B. 18-1224, in effect, bans most-if not all--magazines since it bans any magazine that can be easily converted to expand its capacity. Recognizing this intrinsic flaw in the statute, the Attorney General has attempted to resuscitate the law with "technical guidance" that removable floor plates do not render a magazine easily convertible, although there is no factual basis for that assumption. See Letter from Attorney General John W,. Suthers to Colorado Department of Public Safety Executive Director James H. Davis (May 16, 2018) (available at https://perma.ce/43ZN-6H5Z); Letter from Attorney General John W. Suthers to Colorado Department of Public Safety Executive Director James H. Davis (July 10, 2018) (available at https://perma.cc/7KB8-XMVN).
T78 Historically (until H.B. 18-1224) there have been no regulations in Colorado limiting the capacity of ammunition magazines. "[Thhe historical evidence of the key periods [in United States history] strongly suggests that magazine bans are unconstitutional." Kopel, 78 Alb. L.Rev. at 870.
T79 Concerning possession, there have been no regulations (until H.B, 18-1224) pre-seribing how one could possess, or for that matter transfer to heirs, large-capacity magazines once the chain of possession is broken. Yet this new regulation, founded on principles of safety, seeks to do just that,. And this regulation is so vague that it requires the support of the Attorney General to explain its meaning with questionable letters of clarification. See Letter from Attorney General John W. Suthers (May 16, 2018); Letter from Attorney General John W, Suthers (July 10, 2018).
1 80 Saving this statute, as is exemplified by the decision in Colorado Outfitters, requires a court to balance the interests of the state against the interest of the citizen. As McDonald noted: "In Heller ... we expressly rejected the argument that the scope of the Second Amendment right should be determined by judicial interest balancing." 561 U.S. at 785, 130 S.Ct. 3020.
181 Consequently, like the majority, I would also direct the district court to reinstate that portion of the plaintiffs' complaint alleging the unconstitutionality of H.B. 183-1224 and to proceed with a hearing on the claim, but I would advise the district court on remand to address the question of whether and to what extent H.B. 18-1224 impacts the fundamental guarantee represented in article II, section 18. 'To the extent that it does, I would hold the law to be unconstitutional.
. Judge Kozinski also noted that "[the prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other - rights , have failed-where the government refuses to stand , for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. How- '\ ever improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once." Silveira v. Lockyer, 328 F.3d 567, 570 (9th Cir.2003) (Kozinski, J., dissenting).
. The district court here relied heavily upon Cof orado Outfitters in reaching its decision. Now that the case has been vacated, its usefulness, even as persuasive authority, is at best doubtful.
. There is a history of outlawing dangerous weapons or modified firearms such as sawed off *784shotguns. Cf. People v. Sandoval, 2016 COA 14, ¶ 25, - P.3d -.