Colorado § 18-12-115 - Waiting period for firearms sales - background check required - penalty - exceptions.

§ 18-12-115. Waiting period for firearms sales - background check required - penalty - exceptions.

(1) (a) It is unlawful for any person who sells a firearm, including a licensed gun dealer as defined in section 18-12-506 (6), to deliver the firearm to the purchaser until the later in time occurs:

(I) Three days after a licensed gun dealer has initiated a background check of the purchaser that is required pursuant to state or federal law; or

(II) The seller has obtained approval for the firearm transfer from the bureau after it has completed any background check required by state or federal law.

(b) A person who violates this subsection (1) commits a civil infraction and, upon conviction thereof, shall be punished by a fine of five hundred dollars; except that for a second or subsequent offense, the fine shall be not less than five hundred dollars and not more than five thousand dollars.

(2) This section does not apply to:

(a) The sale of an antique firearm, as defined in 18 U.S.C. sec. 921 (a)(16), as amended, or a curio or relic, as defined in 27 CFR 478.11, as amended;

(b) The sale of a firearm by a person serving in the armed forces of the United States who will be deployed outside of the United States within the next thirty days to any family member, including:

(I) Regardless of age, a biological, adopted, or foster child; a stepchild or legal ward; a child of a domestic partner; a child to whom the seller stands in loco parentis; or a person to whom the seller stood in loco parentis when the person was a minor;

(II) A biological, adoptive, or foster parent; a stepparent or legal guardian of the seller or seller's spouse or domestic partner; or a person who stood in loco parentis when the seller or seller's spouse or domestic partner was a minor child;

(III) A person to whom the seller is legally married under the laws of any state or a domestic partner of a seller;

(IV) A grandparent, grandchild, or sibling, whether a biological, foster, adoptive, or step relationship, of the seller or seller's spouse or domestic partner; or

(V) As shown by the seller, any other individual with whom the seller has a significant personal bond that is or is like a family relationship, regardless of biological or legal relationship; or

(c) A firearm transfer for which a background check is not required pursuant to state or federal law.

(3) Pursuant to the authority granted in section 29-11.7-103, a local government may enact an ordinance, regulation, or other law concerning a waiting period.

Source: L. 2023: Entire section added, (HB 23-1219), ch. 125, p. 485, § 2, effective October 1.

Cross references: For the legislative declaration in HB 23-1219, see section 1 of chapter 125, Session Laws of Colorado 2023.

ANNOTATION

The three-day minimum between initiating a background check and delivering a firearm to a purchaser under subsection (1)(a) is not covered by the plain text of the second amendment to the United States Constitution. Rocky Mt. Gun Owners v. Polis, 701 F. Supp. 3d 1121 (D. Colo. 2023).

The plain text of the second amendment does not cover the waiting period required by this section such that the constitution presumptively provides protection. The words "keep" and "bear" in the second amendment are not implicated by the waiting period. Under District of Columbia v. Heller, 554 U.S. 570 (2008), the most natural reading of "keep Arms" in the second amendment is to "have weapons". The word "bear" means to "carry". When "bear" is used with "arms", however, the term has a meaning that refers to carrying for a particular purpose -- confrontation. Putting all the pieces together, the text of the second amendment guarantees the individual right to possess and carry weapons in case of confrontation. Rocky Mt. Gun Owners v. Polis, 701 F. Supp. 3d 1121 (D. Colo. 2023).

From the reading of the plain text of the second amendment, it is clear that the relevant conduct impacted by the waiting period -- the receipt of a paid-for firearm without delay -- is not covered. To "keep", under the definitions provided in Heller, meant to retain an object one already possessed. It did not mean to receive a newly paid-for item, and it certainly did not mean to receive that item without delay. Likewise, having weapons indicates the weapons are already in one's possession, not that one is receiving them. Rocky Mt. Gun Owners v. Polis, 701 F. Supp. 3d 1121 (D. Colo. 2023).

The purchase and delivery of an object, here, a firearm, is not an integral element of keeping (this is, having) or bearing (that is, carrying) that object. Rather, purchase and delivery are one means of creating the opportunity to have weapons. Rocky Mt. Gun Owners v. Polis, 701 F. Supp. 3d 1121 (D. Colo. 2023).

The waiting-period provision regulates only the sale, and specifically sellers, of firearms. It does not apply to anyone who does not sell a firearm. Commercial regulations that apply only to manufacturers and sellers do not implicate an individual's right of possession. Rocky Mt. Gun Owners v. Polis, 701 F. Supp. 3d 1121 (D. Colo. 2023).