Full opinion text
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER Marcia S. Krieger, Chief United States District Judge THIS MATTER comes before the Court following a bench trial on the Plaintiffs.’ claims under the Second and Fourteenth Amendments to the United States Constitution, and under Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131 et seq. Having considered the evidence presented and the parties’ arguments, the Court finds and concludes as follows. I. Factual Background In 2013, in the wake of a mass shooting at a movie theater in Aurora, Colorado, the Colorado General Assembly enacted gun control legislation that included two new criminal statutes: (1) C.R.S. § 18-12-302, banning the sale, possession, and transfer of “large-capacity magazines,” as that term is statutorily-defined; and (2) C.R.S. § 18-12-112, expanding .mandatory background checks to recipients of firearms in some private transfers. This action was initiated before the statutes became effective. The Plaintiffs— individuals who own guns, associations and organizations of gun owners and advocates, and businesses that manufacture or sell magazines and/or firearms — challenge these statutes and seek to permanently enjoin their enforcement. Many of the Plaintiffs opposed the legislation before the General Assembly, and iterate the arguments they made during the legislative process here. The named Defendant is the Governor of the State of Colorado, sued in his official capacity. Thus, all future references to the Defendant will be to Colorado. A number of claims were dismissed pri- or to trial. The issues at trial were: (1) whether § 18-12-302 and § 18-12-112 violate the Second Amendment of the United States Constitution, which guarantees the people’s right to “keep and bear arms;” (2) whether the phrase “continuous possession” in the grandfather clause of § 18 — 12— 302 is so vague as to violate the people’s right to Due Process under the Fourteenth Amendment of the United States Constitution; and (3) whether the statutes- violate Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132. II. The Scope of this Decision The issue of gun control is controversial. It is the subject of vigorous and passionate debate in legislatures, the media, and innumerable public and private discussions across the country. The subject triggers both fear and deeply-held societal values that conflict in varying degrees: the desire for physical safety, concerns about government intrusion into matters of individual liberty, the availability of mental health treatment for those disposed to violence, the effectiveness of existing law enforcement protection, and so on. In crafting gun control laws, it is the role of the legislature to carefully examine each of these concerns, to weigh them against each other, and to create social policy in the form of legislation (or, indeed, to elect not to do so). When the constitutionality of a state law is challenged, however, a court does not engage in the same process. Judicial review of laws for constitutional compliance focuses on only a small sliver of the issues that the legislature considers. A court does not act as a super-legislature to determine the wisdom or workability of legislation. Instead, it determines only whether legislation is constitutionally permissible. A law may be constitutional, but nevertheless foolish, ineffective, or cumbersome to enforce. The limited role of the court grows out of the separation of powers among the executive, legislative, and judicial branches of government. A legislature, being a body directly elected by the citizenry, is granted the broadest power to act for and by the people. The judiciary acts only as a check on the exercise of that collective power, not by substitution of the personal opinion of a judge as to what he or she believes public policy should be. The judge must only compare the public policy adopted by the legislature against the constitutional mínimums that protect individual rights. Constitutionality is a binary determination: either a law is constitutional, or it is not. This Court will not express a qualitative opinion as to whether a law is “good” or “bad,” “wise” or “unwise,” “sound policy” or a “hastily-considered overreaction.” Similarly, this Court will not assess what alternatives the legislature could have chosen, nor determine whether the enacted laws were the best alternative. Such decisions belong to the people acting through their legislature. Put another way, in determining whether a law is constitutional, this decision does not determine whether either law is “good,” only whether it is constitutionally permissible. III. The Laws at Issue A. Prohibition of Large-Capacity Magazines Colorado Revised Statute § 18-12-302(1) makes it a crime for a person to possess or transfer a large-capacity magazine after July 1, 2013. The statute defines a “large-capacity magazine” as including, “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.” C.R.S. § 18 — 12—301 (2)(a)(1). Persons who possessed such magazines on July 1, 2013 may be protected by a so-called “grandfather clause,” which states that a person can possess large-capacity magazines if: (1) the magazines were acquired before July 1, 2013, and (2) if the person has maintained (and continues to maintain) “continuous possession” of the magazines. C.R.S. § 18-12-302(2)(a). The statute also contains a handful of specifically-defined exceptions permitting the possession of large-capacity magazines by, among others, certain narrow classes of firearm manufacturers, firearm dealers, and government officials who carry weapons as part of their official duties. B. Mandatory Background Checks for Private Firearm Transfers Colorado has long required background checks for those acquiring firearms at gun shows or from firearm dealers. Such background checks must be performed by a licensed gun dealer as defined in C.R.S. § 12-26.1-106(6). Prior to transfer of the firearm, a search must be performed by, and approval obtained from, the Colorado Bureau of Investigation in accordance with C.R.S. § 24-33.5-424. The 2013 law, Colorado Revised Statute § 18-12-112, expands the background check requirement to certain private transfers of firearms. It makes it a crime for both the person transferring possession (the transferor) and person taking possession of a firearm (the transferee) to transfer possession of the firearm in a private transfer without first obtaining a background check for the transferee. In addition, the statute makes the transferor liable for any injury caused by the transferee’s use of the firearm if no background check was obtained. C.R.S. § 18-12-112(5). The process for obtaining the background cheek is the same as that required for retail sales, but the fee that can be charged by the gun dealer performing the check is limited to ten dollars. C.R.S. § 18-12-112(2)(d). If the firearm is transferred to an entity rather than a living person, then a background check is required for each living person who will possess it. C.R.S. § 18-12-112(l)(b). The statute specifies certain types of private transfers for which no background check is required, including, among others: (1) gifts or loans between certain specifically-identified family members; (2) 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; (3) temporary transfers of possession at shooting ranges, during target firearm shooting competitions, or while legally hunting, fishing, target shooting, or trapping; and (4) temporary transfers for no longer than seventy-two hours. C.R.S. § 18-12-112(6). IV. Jurisdiction The Plaintiffs invoke the Court’s jurisdiction under 28 U.S.C. § 1331. Colorado, however, contends that the Court lacks jurisdiction to determine the constitutionality of either statute because no Plaintiff has shown standing to assert such claim. The Plaintiffs’ standing has been a persistent and problematic issue in this case. Colorado filed two motions seeking to dismiss claims on that basis. In ruling on Colorado’s first Motion to Dismiss (# 96), the Court set out the legal standards that guided its analysis. The Court adopts that explication as if fully set out herein, but expands its reasoning in this ailing, as necessary. Summarized briefly, for a federal Article III court to have jurisdiction to determine a matter, there must be a “claim or controversy” that is “justiciable.” For a claim or controversy to be justiciable, at least one plaintiff must have standing to assert the claim. To have standing, a plaintiff must show that he, she, or' it .has been or is being injured, that the challenged law causes the injury, and that the lawsuit will provide relief for the injury. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The injury must be actual and concrete, rather than anticipated, hypothetical, or speculative. When a plaintiff seeks to enjoin the enforcement of a criminal statute on grounds that it abridges a constitutional right, it is not necessary for the plaintiff to violate the statute in order to show an injury. Instead, the law recognizes that the mere existence of a criminal statute can prevent or chill a plaintiffs desire to exercise conflicting constitutional rights. See Phelps v. Hamilton, 122 F.3d 1309, 1326 (10th Cir.1997). Thus, the law deems a plaintiff to suffer a continuing injury sufficient for standing if it can be shown that: (1) the plaintiff genuinely intends to engage in a course of conduct that is constitutionally protected but is proscribed by the challenged statute, and (2) if the plaintiff engaged in such conduct, there exists “a credible threat” that the plaintiff would be prosecuted under the statute. See Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298-299, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979); Dias v. City and County of Denver, 567 F.3d 1169, 1176-77 (10th Cir.2009) (citing Ward v. Utah, 321 F.3d 1263, 1267 (10th Cir.2003)). To be “credible,” the threat of prosecution must be more than imaginary or speculative. Younger v. Harris, 401 U.S. 37, 42, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969). Both § 18-12-302 and § 18-12-112 are criminal statutes. No Plaintiff has been charged with violating either statute nor specifically threatened • with prosecution. Thus, no Plaintiff has suffered an actual past injury. Instead, the Plaintiffs bring facial challenges to these statutes and seek prospective injunctive relief. For these claims to be justiciable, the evidence at trial must show that at least one Plaintiff intends to engage in a course of constitutionally protected conduct that would violate the statute and that there is a “credible threat” of prosecution should the Plaintiff do so. See United States v. Colo. Supreme Court, 87 F.3d 1161, 1166 (10th Cir.1996). A. Standing for Challenges to § 18-12-302 The Plaintiffs challenge this statute on two grounds: (1) that it violates rights protected by the Second (and by inference, the Fourteenth) Amendment to the United States Constitution; and (2) that the “grandfather clause” is so vague that it denies due process under the Fourteenth Amendment to the United States Constitution. For these claims to be justiciable, the evidence must show that at least one Plaintiff either: (1) possesses a large-capacity magazine that he or she acquired after July 1, 2013, in violation of the statute (in other words, not subject to any of the statutory exceptions); (2) intends to acquire a new large-capacity magazine in violation of the statute; or (3) intends to transfer or sell a large-capacity magazine, owned as of July 1, 2013, in violation of the statute. In addition, such Plaintiff must show that there is a “credible threat of prosecution” for such violations. 1. Individual Plaintiffs The Court turns first to the individual Plaintiffs. At trial, evidence was presented only as to three individual Plaintiffs — David Bayne, Dylan Harrell, and John Cooke. No evidence shows that any of these Plaintiffs meet the requirements of standing discussed above. Mr. Bayne lived in Thornton, Colorado when this action was initiated, but has since moved to Georgia. He did not testify that he intends to return to Colorado, much less that he would return with his large-capacity magazines. Thus, there is no evidence that he is likely to be subject to the statute in the future. Mr. Harrell owns large-capacity magazines that were purchased before July 1, 2013. There is no evidence that suggests that Mr. Harrell’s continued possession would not be protected by the grandfather clause, thus he is not currently in violation of the statute or subject to a risk of prosecution. Mr. Harrell did not testify about any intention to acquire additional large-capacity magazines in the future, nor did he express an intention to transfer the large-capacity magazines currently in his possession, nor otherwise testify about future conduct that would place him at risk of prosecution. Accordingly, Mr. Harrell lacks standing to challenge the statute. Mr. Cooke currently serves as the Sheriff of Weld County and will be retiring in 2015. There was no evidence as to whether he currently possesses large-capacity magazines. His testimony strictly related to a “survey” he conducted of his employees (none of whom are Plaintiffs). Even assuming that Mr. Cooke does possess large-capacity magazines, his current possession is exempted from the prohibition (due to his status as a law enforcement employee), and there was no testimony that, upon his retirement, he intends to transfer such magazines or intends to acquire more in violation of the statute. Thus, on this record, the Court finds that no individual Plaintiff has shown standing to challenge § 18-12-302. 2. Plaintiffs that are Entities The Court then turns to the Plaintiffs that are entities. They fall roughly into two groups: associations of gun enthusiasts/advoeates and firearm businesses. The associations are Colorado Youth Outdoors, Women for Concealed Carry, Outdoor Buddies, Colorado State Shooting Association, Colorado Farm Bureau, and Colorado Outfitters Association. The firearm businesses are Rocky Mountain Shooter Supply and Burrud Arms, Inc. (both licensed firearm dealers), Hamilton Family Enterprises, Inc. (a shooting range operator), and Magpul Industries (a manufactures of magazines). As to the associational entities, the Court begins by examining whether these entities can assert associational standing on behalf of their members. “Associational standing” is recognized if an organization can establish that: (1) its members would otherwise have standing to sue in their own right; (2) the members’ interests that the association seeks to protect are germane to the organization’s purpose; and (3) neither the claim asserted nor the relief requested requires the participation of the individual members in the lawsuit. Chamber of Commerce of U.S. v. Edmondson, 594 F.3d 742, 756 (10th Cir. 2010). With regard to the first element, the entity Plaintiffs must show, through specific facts, that at least one of its members would be directly affected by the statute. See Lujan, 504 U.S. at 563, 112 S.Ct. 2130 (citing Sierra Club v. Morton, 405 U.S. 727, 735, 739, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), and Hunt v. Washington Colorado Apple Advertising Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)). At trial, Elisa Dahlberg, a member of Women for Concealed Carry, testified that Women for Concealed Carry is a nonprofit organization committed to providing information to women who choose to carry a concealed weapon as a form of self-defense. She further testified that she owns two semiautomatic carbine-style rifles and a 9mm semiautomatic handgun, each of which are equipped with a large-capacity magazine. She testified that she uses these firearms for home defense and target shooting, among other things. It appears to be undisputed that Ms. Dahl-berg’s current possession of large-capacity magazines is permitted by the statute’s grandfather clause, and the parties agree that all large-capacity magazines will wear out or become unusable at some point in time. Considering this, Ms. Dahlberg stated that, due to § 18-12-302, she will be unable to replace her large-capacity magazines once they no longer function. The question of whether Ms. Dahlberg is suffering a continuing injury is a close one, because it is not clear when Ms. Dahl-berg’s magazines are likely to need replacement and whether, at that indeterminate point in future, she will desire to replace them with magazines of similar type. Notwithstanding her current interests, with the passage of time, Ms. Dahl-berg’s desire to carry large-capacity magazines may change. If that happened, this statute would not affect her. Nevertheless, in an attempt to find standing for some Plaintiff, the Court will assume that, in the absence of evidence as to the' age of Ms. Dahlberg’s existing large-capacity magazines and the functioning life of those magazines, Ms. Dahlberg may need to replace a large-capacity magazine in the very near future and that she will desire to replace it with another large-capacity magazine. If that were the case, the restrictions of § 18-12-302 would nevertheless prevent her from acquiring and possessing the replacement large-capacity magazine. Thus, the first element necessary for associational standing for Women for Concealed Carry is, arguably, satisfied. The second element is also satisfied because .the interests that Women for Concealed Carry ostensibly seek to protect— providing information to and engaging in advocacy on behalf of women who are interested in carrying concealed weapons for self-defense purposes — are “germane” to the interests that Ms. Dahlberg could assert on her own behalf. Finally, because this claim is a facial challenge and the relief requested is prospective, it does not require the personal participation of the individual members of Women for Concealed Carry in the lawsuit. See Warth v. Seldin, 422 U.S. 490, 515, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Whether the statute violates constitutional standards turns on the statute’s plain language and its general operation, not on the particular circumstances for which Ms. Dahlberg or a specific member of Women for Concealed Carry possesses large-capacity magazines. Thus, the personal participation of Women for Concealed Carry’s members is not essential. Accordingly, with the benefit of some generous assumptions, the Court finds that Women for Concealed Carry has associational standing to assert the Second Amendment challenge to § 18-12-302. Accordingly, the Court has jurisdiction to determine these challenges to the statute on their merits. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); Colorado of Utah v. Babbitt, 137 F.3d 1193, 1215 n. 36 (10th Cir.1998), B. Standing for the Challenge to § 18-12-112 The Plaintiffs assert a single challenge to § 18-12-112: that it violates the Second (and by inference, the Fourteenth) Amendment to the United States Constitution. Following the same analytical pattern used with regard to § 18-12-302, in order for the Court to consider this claim, at least one Plaintiff must establish a continuing injury by showing that he or she intends to engage in conduct protected by the Second Amendment but which violates § 18-12-112, and that if the Plaintiff engaged in such conduct, there is a credible threat that he or she would be prosecuted. As noted above, § 18-12-112 requires that a background check be performed on the individual transferee(s) who take possession of a firearm through certain private transfers. The statute requires a licensed gun dealer to perform certain actions, retain certain records, and charge no more than ten dollars for the background check. The failure to obtain such a background check exposes both the transferor and transferee to criminal liability. To establish a continuing injury sufficient to challenge § 18-12-112, the evidence must show either: (1) a Plaintiff intends to transfer or acquire a firearm, through a private sale not otherwise exempt under the statute, without first conducting a background check on the transferee; or (2) a Plaintiff who is a licensed gun dealer intends not to comply with the requirements for conducting the background check or other specified responsibilities. Further, either types of Plaintiff must also show that there is a “credible threat of prosecution” for this conduct. 1. Individual Plaintiffs The Court begins its analysis of standing with the same three individual Plaintiffs discussed above, finding that none have demonstrated a continuing injury. Mr. Bayne is not subject to prosecution under § 18-12-112 because he no longer lives in Colorado and does not intend to return. Mr. Cooke did not provide any testimony with regard to his personal firearms, much less his intention to transfer them to others or to acquire new ones via private transfer, with or without a background check. Mr. Harrell’s circumstances are bit more complicated. He testified that, in the past, he has installed scopes on, or “sighted,” firearms for friends and neighbors. On occasion, he kept the firearm for longer than 72 hours. Initially, the Court has some doubt that a person’s taking temporary possession of another person’s firearm for the purpose of installing a scope or “sighting” it is within the Second Amendment’s protection of an individual right to “keep and bear arms” for the purpose of self-defense. But, assuming (without deciding), that it is, there is- no evidence that the transfer to Mr. Harrell is a private transfer requiring a background check. Temporary transfers for up to- 72 hours are exempt from the background check requirement, and although there was testimony that Mr. Harrell sometimes retained the firearm for more than 72 hours, it was not clear that he did so out of necessity rather than convenience. Assuming Mr. Harrell could regularly perform the scoping or sighting of the firearm within the 72-hour period and return the weapon, he would suffer no injury from the operation of the statute. In addition, assuming that he kept a firearm for longer than 72 hours with the owner’s permission while performing maintenance duties on it, he has not shown any credible threat that he would be prosecuted for not first obtaining a background check. Accordingly, the. evidence does not establish Mr. Harrell’s standing. 2. Plaintiffs that are Entities As noted earlier, there are two groups of entity Plaintiffs. With regard to this statute, the Court begins with the firearm businesses — Rocky Mountain Shooter Supply, Burrud Arms, Hamilton Family Enterprises, Inc., and Magpul Industries. The Court has some doubt that these entities can have standing to bring a Second Amendment challenge. As discussed in greater detail below, rights granted under the Second Amendment are individual rights premised upon an inherent natural right of self-defense. Although businesses such as these might have standing to challenge a statute under some other constitutional theory, it does not appear that they are protected by the Second Amendment. Assuming, however, that a business entity could assert a Second Amendment challenge, the trial record does not show evidence of continuing injury to any of the Plaintiff business entities. Rocky Mountain Shooter Supply and Burrud Arms are licensed firearm dealers. Transfers by these Plaintiffs are not governed by § 18-12-112, and neither of these parties perform private background checks subject to the statute. Hamilton Family Enterprises, Inc. operates a shooting range and lends firearms to those who use the range. It sells firearm accessories including magazines, but does not sell firearms themselves, nor is it a licensed' firearm dealer. It appears that the only transfers made by Hamilton Family' Enterprises are in the nature of loans that do not exceed 72 hours and are for the purpose of target shooting. Such transfers are expressly exempt from the statute’s requirements. According to the parties’ stipulated facts, Magpul Industries designs and manufactures high-quality magazines and magazine accessories. There is no evidence that it intends to be a transferor or transferee of a firearm in private sales, nor a licensed firearm dealer subject to § 18-12-112. Next, the Court looks to the Plaintiff associations: Outdoor Buddies, Colorado Farm Bureau, Colorado Outfitters Association, Women for Concealed Carry, Colorado Youth Outdoors, and Colorado State Shooting Association. Based on the evidence presented, it does not appear that any of these entities can bring a Second Amendment claim based on associational standing. Outdoor Buddies is a non-profit organization with over 800 members, a third of whom are disabled. Its mission is to “get disabled individuals active in the outdoors.” It lends highly specialized firearms to members for 3-day hunts. Because these transfers are temporary and incident to legal hunting activities, they are exempt under § 18-12-112. The evidence reflects that, sometimes, transferees keep a firearm for a period before or after the hunt, which time might exceed 72 hours. But the record does not clearly establish that this is necessary (as opposed to convenient), or that any member would decline to participate if he or she could not retain the firearm for more than 72 hours beyond the time of a hunt. As a consequence, the record does not reflect that either Outdoor Buddies or its members are at risk of prosecution under § 18-12-112. The Colorado Farm Bureau (CFB) is a federation with 24,000 members, 5,800 of whom are active farmers and ranchers. Its mission is to promote agriculture and protect agricultural values. Nicholas Col-gazier testified as its Director of Public Policy, and Michele Eichler testified as a member. Mr. Colgazier works as an in-house lobbyist who brings pending legislation to the attention of the “board” for development of policy positions. He did so with regard to § 18-12-112, then lobbied against it based on the requests of some members who opposed the background check requirement due to inconvenience and expense. He did not offer testimony as to whether or how many of the CFB members would be transferors (or, arguably, transferees) in transfers subject to the statute, whether any would forego such transfers or intended to ignore the background check requirement, or otherwise testify as to facts demonstrating any “credible threat of prosecution.” Ms. Ei-chler testified that it would be .inconvenient to have to obtain a background check in order to transfer a firearm to a ranch or farm hand. She particularly worried that the gun kept in her farm truck (for predator control) would inadvertently be in the possession of a ranch hand if the family left town for longer than 72 hours. However, she acknowledged that there had never been an occasion when her ranch hand had possession of the gun for longer than 72 hours. The Court finds that the evidence as to potential violations of the statute by CFB members to be speculative. Moreover, even assuming that CFB’s members would themselves have standing to challenge the statute, it is not clear that challenging firearms laws is within the scope of CFB’s mission of promoting “agricultural values.” Finally, the Court finds that CFB has not shown that there is a “credible threat of prosecution” of its members for the conduct described at trial. Ms. Eichler also testified as a member of Colorado Outfitters, but offered no evidence as to that association’s organization, membership, or mission. She testified that she and her husband run an outfitting business that takes between 100-150 clients on hunts each year. In the past, if a client did not have a firearm, the Ei-chlers would loan the client one of their personal firearms for use during the hunt. Hunts are usually five days, but may last longer if successful. It would appear that the type of transfers described by Ms. Eichler would be exempt under C.R.S. § IS — 12—112(6)(e)(III). But in any event, the lack of evidence about Colorado Outfitter’s membership or mission requires a conclusion that it has not shown the requirements for associational standing. Three associations — Women for Concealed Carry, Colorado Youth Outdoors, and Colorado State Shooting Association— each testified (through representatives) that they regularly “loan” firearms to their members for various purposes, sometimes for longer than 72 hours, without conducting background checks. If these associations were individuals, with clearly established Second Amendment rights, they might have standing to assert a Second Amendment challenge to the statute. However, because they are entities rather than human beings, the question of whether they are protected by the Second Amendment is less than' clear. As noted, the Second Amendment protects a fundamental individual right, and it is not clear that entities have any rights protected by the Second Amendment. Such questions stretch the outer boundaries of current Second Amendment jurisprudence, and the parties have not specifically addressed these issues. Thus, although the Court has profound reservations as to whether any Plaintiff has standing to challenge § 18-12-112, in the interests of providing a complete ruling, both for the guidance of the parties and the inevitable review by the Court of Appeals, the Court will assume that Women for Concealed Carry, Colorado Youth Outdoors, or the Colorado State Shooting Association have standing, in their own right, to challenge § 18-12-112 under the Second Amendment. V. Analysis A. History and Analytical Framework for Second Amendment Challenges The Second Amendment to 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. Until 2008, most courts did not construe the Second Amendment to protect an individual’s right to possess and use firearms. Courts were guided by the Supreme Court’s decision in United States v. Miller, 307 U.S. 174, 179, 59 S.Ct. 816, 83 L.Ed. 1206 (1939), which held that a right protected by the Second Amendment required “some reasonable relationship to the preservation or efficiency of a well regulated militia.” See, e.g., United States v. Haney, 264 F.3d 1161, 1164-66 (10th Cir.2001); Gillespie v. Indianapolis, 185 F.3d 693, 710-11 (7th Cir.1999); Stevens v. United States, 440 F.2d 144, 149 (6th Cir.1971); but see United States v. Emerson, 270 F.3d 203 (5th Cir.2001). In 2008, the legal landscape with regard to the Second Amendment shifted. In District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the Supreme Court considered a District of Columbia ban on the possession of usable handguns. The Court concluded that the Second Amendment “confer[s] an individual right to keep and bear arms.” 554 U.S. at 595, 128 S.Ct. 2783. To reach that conclusion, it de-linked the Second Amendment’s prefatory clause — “a well regulated militia, being necessary to the security of a free state” — from its operative clause — “the right of the people to keep and bear Arms, shall not be infringed” — and explained that although the prefatory clause states the purpose for the right, it does not limit the right to own or use firearms to circumstances of militia service. Id. at 577, 128 S.Ct. 2783. Instead, the Court identified the core Second Amendment right as “the right of law-abiding, responsible citizens to use arms in defense of hearth and home,” and defined the right to “keep and bear arms” as the ability to acquire, use, possess, or carry lawful firearms for the purpose of self-defense. See, e.g., id. at 599, 128 S.Ct. 2783 (“self-defense ... was the central component of the right itself’) (emphasis in original), at 628 (“the inherent right of self-defense has been central to the Second Amendment right”). As profound as Heller is, it does not stand for the proposition that there can be no permissible regulation of firearms or their use. To the contrary, the Court explained that “[f]rom Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever for whatever purpose.” Id. at 626, 128 S.Ct. 2783. And the Court emphasized that “nothing in [its] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms,” among others. Id. at 626-27 & n. 26, 128 S.Ct. 2783. The Supreme Court did not specify in Heller what analytical framework should be used in testing laws challenged under the Second Amendment. This was, in part, because it found that that the ban it was considering (a law effectively prohibiting the possession of functional handguns inside or outside of the home) would fail all recognized tests for constitutionality. Id. at 628, 128 S.Ct. 2783. Since Heller, Second Amendment jurisprudence has continued to evolve, particularly with regard to the analytical standards to be applied. Many Circuit Courts of Appeal, including the Tenth Circuit, have adopted a two-step approach. See United States v. Reese, 627 F.3d 792 (10th Cir.2010); United States v. Marzzarella, 614 F.3d 85 (3d Cir.2010); Ezell v. City of Chicago, 651 F.3d 684 (7th Cir.2011); United States v. Chovan, 735 F.3d 1127 (9th Cir.2013); Heller v. District of Columbia (“Heller II”), 670 F.3d 1244 (D.C.Cir.2011); United States v. Chester, 628 F.3d 673 (4th Cir.2010). In the two-step approach, a court must make a threshold determination of whether the* challenged law burdens conduct falling within the Second Amendment’s protection. As part of this determination, the Court may consider whether the challenged law impacts firearms or firearm use, whether the affected firearms are currently in “common use,” whether the affected, firearms are used for self-defense inside or outside of the home, and whether the restriction is akin to restrictions that were historically imposed and customarily accepted. If the challenged law does not burden a right or conduct protected by the Second Amendment, then the inquiry is over. If the challenged law burdens conduct protected by the Second Amendment, then a court must determine what level of constitutional scrutiny to apply. Generally, constitutional scrutiny takes one of three forms. See United States v. Carolene Prods. Co., 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). The least rigorous and most deferential standard is the “rational basis” test, which is used when a local, commercial, or economic right, rather than a fundamental individual constitutional right, is infringed. See Armour v. City of Indianapolis, Ind., — U.S.-, 132 S.Ct. 2073, 2080, 182 L.Ed.2d 998 (2012). More rigorous is “intermediate scrutiny” review, which applies to laws that infringe upon, but do not substantially burden, fundamental individual rights, such as content-neutral restrictions on speech. For a challenged law to satisfy intermediate scrutiny, it must be substantially related to an important governmental interest. Reese, 627 F.3d at 802 (citing United States v. Williams, 616 F.3d 685, 692 (7th Cir.2010)); United States v. Huitron-Guizar, 678 F.3d 1164, 1169 (10th Cir.2012). Laws that substantially burden fundamental individual rights (e.g., laws embodying racial discrimination or content-based restrictions on speech) are subject to “strict scrutiny.” To satisfy strict scrutiny, a law must be narrowly-tailored to further a compelling government interest. See Chandler v. City of Arvada, 292 F.3d 1236, 1241 (10th Cir.2002). Recognizing that the Second Amendment protects fundamental individual rights, Heller instructed that the rational basis test should not be applied, but it gave no instruction as what heightened level of scrutiny — intermediate, strict, or something in between — should apply. In subsequent cases, courts have analogized conduct protected under the Second Amendment to other fundamental individual rights such as those protected by the First Amendment (speech, religion, assembly, and petition). Most courts have concluded that no single standard is applicable to all challenges under the Second Amendment. Rather, the level of scrutiny to be applied depends, in part, on the type of restriction being challenged and the severity of its burden on the “core” Second Amendment right. See, e.g., Marzzarella, 614 F.3d at 96-97; Reese, 627 F.3d at 802; Ezell, 651 F.3d at 703; Chovan, 735 F.3d at 1138. The Tenth Circuit has joined many other courts in applying intermediate scrutiny to Second Amendment challenges. See, e.g., United States v. Reese, 627 F.3d 792 (10th Cir.2010); United States v. Huitron-Guizar, 678 F.3d 1164 (10th Cir.2012). B. Application to § 18-12-302 Under the two-step test, the first question is whether § 18-12-302 impacts a right or conduct protected by the Second Amendment. The Plaintiffs argue that by limiting magazines to 15 rounds or less, this statute impairs an individual’s Second Amendment “right of self-defense.” Colorado reflexively responds that because people can still defend themselves, no Second Amendment right is impaired. Both positions are slightly off-base. They reflect a common confusion between the right that is protected by the Second Amendment — that is, “to keep and bear arms” — and the purpose of that right— “for defense of self and home.” Although Heller sometimes uses shorthand phrases such as “a natural right of self-defense,” 554 U.S. at 612, 128 S.Ct. 2783, or the “inherent right of self-defense,” 554 U.S. at 612, 128 S.Ct. 2783, it is clear that Heller does not extend the boundaries of the Second Amendment to guarantee “self-defense” as a right in and of itself. Nothing in Heller can be read to guarantee an individual right to possess whatever firearm he or she subjectively perceives to be necessary or useful for self-defense, nor any firearm for a purpose other than self-defense. To the contrary, the Supreme Court expressly stated that the rights embodied by the Second Amendment have not historically been understood to be “a right to keep and carry any weapon whatsoever.” Id. at 626, 128 S.Ct. 2783. And the Supreme Court conceded that its interpretation of the Second Amendment could authorize the prohibition of civilian possession of certain weapons commonly used in military service, such as “M-16 rifles and the like.” Id. at 628, 128 S.Ct. 2783. Heller also acknowledged the historical validity of “prohibitions on carrying concealed weapons.” Id. at 626, 128 S.Ct. 2783. Such comments illustrate that the Supreme Court does not equate the Second Amendment “right to keep and bear arms” to guarantee an individual the “right tó use any firearm one chooses for self-defense.” Instead, Heller describes the Second Amendment “right to keep and bear arms” rather narrowly: the right to possess those weapons that are “in common use” for “self-defense” purposes. See id. at 624-25, 128 S.Ct. 2783 (“the Second Amendment’s operative clause furthers the purpose announced in its preface” by guaranteeing access to the type of arms “in common use at the time for lawful purposes like self-defense”), at 627 (“the sorts of weapons protected were those in common use at the time”). Heller concluded that handguns were in common use because they are a “class of arms that is overwhelmingly chosen by American society for that lawful purpose [of self-defense]” and they are “the quintessential self-defense weapon.” Id. at 628-29, 128 S.Ct. 2783. Thus, the Court’s first inquiry is whether § 18-12-302 burdens the right of individuals to possess commonly-used weapons, such as handguns, for self-defense. Section 18-12-302 is interesting in that it does not directly regulate firearms at all; it regulates only the size of a magazine. Simply put, a “magazine” is nothing more than a container that holds multiple rounds of ammunition. Magazines are designed to feed a bullet into the firing chamber of a firearm with each cycle of the action, allowing multiple shots to be fired rapidly, either semi-automatically (that is, with a single shot fired each time the trigger is pulled) or automatically (with shots being fired continually so long as the trigger is held). Here, the Plaintiffs are concerned primarily with semiautomatic firearms. Such firearms can operate without a magazine, but each round must be individually loaded. The capacity of the magazine determines how frequently a firearm must be reloaded if the shooter wishes to keep firing. For example, a handgun or rifle using.a 15-round magazine must be reloaded twice as frequently as one using a 30-round magazine. Because § 18-12-302 regulates only the number of rounds in a magazine, it does not affect whether the semiautomatic firearm can be used, or even whether it can be used in a semiautomatic mode. It only affects how often it must be reloaded. The parties agree that semiautomatic firearms are numerous and widespread. They stipulate that lawfully owned semiautomatic firearms using a magazine with the capacity of greater than 15 rounds number in the tens of millions, although the exact number subject to regulation in Colorado is unknown. They also agree that semiautomatic firearms are commonly used for multiple lawful purposes, including self-defense. Because § 18-12-302 affects the use of firearms that are both widespread and commonly used for self-defense, the Court concludes that, at the first step of the analysis, the statute burdens the core right protected by the Second Amendment. The second analytical step requires that the Court to determine the level of constitutional scrutiny to apply. Similar to their prior arguments, the Plaintiffs argue that the Court should apply strict scrutiny because the statute severely restricts a person’s “right to self-defense,” which the Court understands to be the ability to successfully defend him or herself. Colorado contends that the impact is not severé because, despite the magazine size limitation, people can adequately defend themselves. As noted, § 18-12-302 bans possession of all magazines capable of holding more than 15 rounds (except for magazines subject to the grandfather clause). Other than those specifically excepted in the statute, this ban applies to every person in Colorado, in every venue, and for every use, including self-defense inside and outside of the home. It impacts a large number of semiautomatic firearms, both handguns and rifles. Viewed in this light, the scope of the statute is broad, and it touches the core of an individual right guaranteed by Second Amendment — the right to keep and bear (use) firearms for the purpose of self and home defense. Despite such broad scope, however, the statute’s impact on a person’s ability to keep and bear (use) firearms for the purpose of self-defense is not severe. Unlike the restriction considered in Heller, this statute does not ban any firearm nor does it render any firearm useless. Semiautomatic weapons can be used for self-defense in and outside of the home. The parties agree that semiautomatic weapons that use large-capacity magazines will also accept compliant magazines (i e., 15 rounds or fewer), and that compliant magazines can be obtained from manufacturers of large-capacity magazines. Thus, this statute does not prevent the people of Colorado from possessing semiautomatic weapons for self-defense, or from using those weapons as they are designed to function. The only limitation imposed is how frequently they must reload their weapons. By rhquiring users to reload every 15 rounds, the statute impacts both the “offensive” and “defensive” use of semiautomatic weapons. Most of the time when a weapon is used “offensively,” it is for unlawful purposes — ie. the mass shooting scenario. (The significance of the statute with regard to offensive firearm use is discussed below. Needless to say, no party here is complaining of the effects of the challenged statute on the offensive use of large-capacity magazines.) The Plaintiffs’ primary concern here focuses on the “defensive” use of a firearm — that is, to protect the user or others against an attacker. The effect of magazine size limitations on defensive use of a weapon is important in assessing whether and to what degree a citizen’s lawful ability to defend him or herself is compromised. No evidence presented here suggests that the general ability of a person to defend him or herself is seriously diminished if magazines are limited to 15 rounds. Despite more than 40 years instructing individuals and law enforcement in defensive firearm use, the Plaintiffs’ expert witness, Massad Ayoob, identified only three anecdotal instances in which individuals engaging in defensive use of firearms fired more than 15 rounds, and not all of these successful defensive actions involved semiautomatic weapons. Of the many law enforcement officials called to testify, none were able to identify a single instance in which they were involved where a single civilian fired more than 15 shots in self-defense. (Indeed, the record reflects that many law enforcement agencies, including the Colorado State Patrol, the Federal Bureau of Investigation, and the New York City Police Department equip their officers with 15-round or smaller magazines.) Anecdotal testimony from the Plaintiffs lay witnesses was corroborative. Although they possessed large-capacity magazines, none had ever had the occasion to fire more than 15 rounds in an instance of self-defense. There are myriad reasons for this phenomenon. First, the defensive purpose of firearms is often achieved without shots being fired whatsoever. Mr. Avoob testified that, often, merely the defensive display of a firearm is sufficient to defuse the threat. Similarly, when shots are fired in self-defense, the deterrent purpose is often achieved simply by the firing of a round or two, regardless of whether those shots find their target (in other words, a “warning shot,” intentional or otherwise, is often sufficient to deter the attacker). In these types of circumstances, a restriction on magazine size in no way diminishes the ability of the firearm user to defend him or herself. Circumstances in which an attack is halted by a defensively-shooting civilian disabling the attacker are comparatively rare. Even then, the purpose is not to fire as many shots as possible, only as many shots as necessary. The detrimental effect of a limitation on magazine capacity in such situations is very difficult to measure because it is affected by a wide array of external variables: the nature and characteristics of the attacker(s), the competence of the defensive user, environmental circumstances, the timeliness of intervention by others or by law enforcement, etc. For example, a highly-trained firearm user might be able to disable an attacker by firing only a relatively small number of rounds. For these users, the statute poses no impediment to. effective self-defense. Adverse environmental circumstances that may be common in mass shootings — large numbers of bystanders, poor lines of sight, or darkness, for example — or circumstances where a law enforcement response is imminent, may make the firing of large numbers of defensive rounds by a civilian ill-advised. In these instances, the restriction on magazine size again poses no discrete impairment to the ability of effective self-defense. Even in the relatively rare scenario where the conditions are “ideal” for defensive firing, there is no showing of a- severe effect on the defensive shooter. As previously stated, the limitation on the size of magazines merely affects how many rounds can be fired before a reload is necessary. Assuming that the defensive firearm user has fired all 15 rounds in his or her initial magazine, and yet failed to neutralize the threat, the user need simply replace his or her magazine or firearm to resume firing. Admittedly, the defensive user cannot fire during the time it takes to complete a reload or access another weapon, but the length of that period, again, varies greatly with the circumstances, such as the defensive user’s preparation and skills. The testimony at trial was that persons skilled in firearms use can replace a magazine in a matter of a few seconds, whereas less skilled users may take longer periods of time. At most, then, the statute’s burden on the exercise of self-defense is this: in the relatively rare circumstances in which sustained defensive fire is appropriate, the statute forces a brief pause to reload or access another weapon. The evidence presented does not establish that such circumstances occur frequently, affect very many, or that the pause to reload adversely affects one’s success in self-defense. On the record presented, the Court finds that although § 18-12-302 burdens the operation of semiautomatic weapons, the burden is not severe because it does not materially reduce the ability of a person to use a semiautomatic firearm for self-defense, nor does it reduce the effectiveness of self-defensive efforts. As a result, the Court will examine the statute under the intermediate scrutiny test. For § 18-12-302 to survive intermediate scrutiny, Colorado must prove that its objective in enacting § 18-12-302 was “important” — that is, that that the statute was based on “reasoned analysis,” Concrete Works of Colo., Inc. v. City and Cnty. of Denver, 321 F.3d 950, 959 (10th Cir.2003) — and that the provisions of § 18-12-302 are “substantially related” to its stated objective. According to Colorado, the General Assembly’s objective in passing § 18-12-302 was to reduce the number and magnitude of injuries caused by gun violence, specifically in mass shootings. The legislative record reflects that members of the General Assembly were acutely aware of the Aurora Theater shooting in 2012, as well as other mass shootings inside and outside Colorado.. The General Assembly considered evidence that mass shootings occur with alarming frequency and often involve use of large-capacity magazines. It considered testimony that when a shooter using a large-capacity magazine intends to kill, the shooter usually fires continuously until he runs out of ammunition, which leads to greater numbers of injuries and deaths. With regard to general gun violence, the General Assembly also considered statistics drawn from several cities that large-capacity magazines were used in 14-26% of all gun crimes and in 31-41% of fatal police shootings. This legislative history demonstrates that the General Assembly considered relevant evidence in determining that the use of large-capacity magazines in gun violence poses a serious threat to public safety. To prevent the effects caused by the use of large-capacity magazines is undoubtedly an important governmental purpose. Even with an important purpose, however, Colorado must prove that the 15-round limitation in § 18-12-302 is substantially related to an anticipated reduction in the number and magnitude of injuries caused by the use of large-capacity magazines. See Peterson v. Martinez, 707 F.3d 1197, 1222 (10th Cir.2013) (Lucero, J., concurring) (citing Michael M. v. Superior Court, 450 U.S. 464, 473, 101 S.Ct. 1200, 67 L.Ed.2d 437 (1981) (plurality opinion)). The Court finds that Colorado has demonstrated this relationship. The evidence shows that large-capacity magazines are frequently used in gun violence and mass shootings, and that often a shooter will shoot continuously until a weapon jams or the shooter runs out of ammunition. Interestingly, most experts agree that the size of a magazine correlates to the number of rounds that are fired in both an offensive and defensive capacity. Dr. Jeffery Zax testified that there is a direct positive correlation between the firearm ammunition capacity and the average number of shots fired during criminal aggression. Mr. Ayoob agreed that this is true in defense, as well. He testified that when training individuals to use high-capacity semiautomatic weapons, his students frequently feel the need to “spray and pray,” meaning that they believe that they should fire all of their rounds in the hope that at least one shot will hit the intended target. Mr. Ayoob sees his job as training them not to empty their magazines, and instead to shoot as if they were using a magazine with fewer rounds. Mr. Cerar testified to having a similar experience in training New York City Police Department Officers. There is no dispute that when a shooter pauses to reload a weapon or shift to another weapon, there is pause. Mr., Cerar and Mr. Fuchs call this the “critical pause” because it gives potential victims an opportunity to hide, escape, or attack the shooter. This pause also gives law enforcement or other armed individuals an opportunity to act. They point to several shooting incidents, including those that took place at the Aurora theater, at a Safeway in Tucson, Arizona, and at an elementary school in Sandy Hook, Connecticut, when a pause allowed a shooter to be overcome, law enforcement to intercede, or potential victims to flee. In each incident, the pause was created either by the shooter reloading their weapon, or there being a malfunction of their firearm.' Plaintiffs accurately observe that a weapon malfunction or jam can be as effective as mandatory reloading in creating a critical pause. However, one cannot predict whether or when a firearm will malfunction. . The limitation on magazine size makes the critical pause mandatory because continued use of the gun requires reloading or switching to another gun. Plaintiffs also accurately observe that skilled shooters can reload more quickly than can unskilled shooters, which would reduce the duration of the critical pause. That is undoubtedly true, but also largely irrelevant. A pause, of any duration, imposed on the offensive shooter can only be beneficial, allowing some period of time for victims to escape, victims to attack, or law enforcement to intervene. The pause compelled by the limitation on magazines also could temporarily impair a defensive shooter, but beyond acknowledging that fact, there- are too many external variables to permit a conclusion that pauses effectively compelled on both sides are necessarily better or worse than having no such pauses on either side. • In cases involving skilled defensive shooters and inexperienced offensive shooters, the pause is necessarily favorable. Where the situation is reversed, it may be that the offensive shooter gains an advantage, or it may be that the asymmetry of the offensive shooter and defensive shooter’s goals nevertheless negate some or all of that advantage. The mere fact that the legislature’s decision might raise the risk of harm to the public in some circumstances, while clearly diminishing it in others does not defeat the conclusion that the legislature’s decision was substantially- related to an important governmental interest. Finally, the Plaintiffs argue that criminals who are intent on committing gun violence will not obey the magazine restriction and will nevertheless unlawfully obtain large-capacity magazines. Hypothetically, this may be true, but the Court declines to speculate about the subjective intentions and means of unspecified criminals involved in unspecified gun violence. The Court accepts the unrebutted opinion of Dr. Zax, who testified that the magazine size restriction will reduce the overall number of large-capacity magazines available in Colorado and his testimony about the effects of federal firearms regulation in Virginia. Thus, although it may be impossible to completely eliminate access to large-capacity magazines, it is reasonable to infer that the restriction will, at a minimum, reduce the ready availability of large-capacity magazines to both criminals and law-abiding citizens. It is clear from the legislative history that the General Assembly adopted the 15-round restriction in the effort to balance the ability of individuals to lawfully use semiautomatic weapons in self-defense, while limiting the capability of unlawful shooters to fire repeatedly. It considered a more restrictive limit of 12 rounds, but rejected that at the request of citizens and law enforcement officials. Instead, it chose the 15-round limit based on evidence that officers of the numerous state and federal law enforcement agencies all successfully use magazines with 15 or fewer rounds. Whether adoption of a fifteen-round magazine limit is a sound public policy or a perfect fit with the General Assembly’s objective to improve public safety is not the question before this Court. The fit may not be perfect, but the evidence establishes both an important governmental policy and a substantial relationship between that policy and the restriction of § 18-12-302. The provisions of § 18-12-302 are permissible under the Second Amendment. C. Application to § 18-12-112 Subject to multiple exceptions, § 18-12-112 extends the mandatory background check required in gun sales by dealers and at gun shows to transferees who take possession of a firearm in a private transfer. Plaintiffs do not argue that requiring background checks for the private sale of firearms is unconstitutional. Rather, they focus their challenge on the effect of the statute on temporary transfers, when ownership of the firearm does not change. Essentially, they argue that the Second Amendment protects an individual’s right to borrow a firearm for lawful purposes, including for self-defense, and that such right is infringed by the statute’s requirements. First, the Court must determine whether § 18-12-112 impacts conduct protected by the Second Amendment. As repeatedly noted, the.Second Amendment guarantees an individual’s right to keep and bear arms for the core purpose of defense of self and home. However, it is not at all clear that the Second Amendment prevents the government from restricting the ability of persons to acquire firearms via temporary loans from others. Notably, Heller acknowledged the historical permissibility of “laws imposing conditions and qualifications on the commercial sale of arms.” 554 U.S. at 626-27, 128 S.Ct. 2783. Logically, if the government can lawfully regulate the ability of persons to obtain firearms from commercial dealers, that same power to regulate should extend to noncommercial transactions, lest the loophole swallow the regulatory purpose. Thus, the Court has grave doubt that a law regulating (as opposed to prohibiting) temporary private transfers of firearms implicates the Second Amendment’s guarantee at all. Nevertheless, the Court will assume that, arguably, the right to “keep and bear” firearms implies some protection of the right to acquire firearms in the first place. Cf. Ezell, 651 F.3d at 704. And the Court will assume that, if the acquisition of firearms is protected to some extent, that protection will include acquisition via loan. Thus, if the Court were to conclude that the Second Amendment protects an individual’s right to acquire firearms for the purpose of self-defense by temporarily borrowing them, the Court would find that § 18-12-112 impacts that right by requiring a background check before such transfer can o