On September 29, Gene Hoffman and Firearms Policy Coalition filed a complaint in the United States District Court for the District of Colorado, Hoffman v. City and County of Denver, Colorado, No. 1:26-cv-04837, alleging that the combined operation of Denver’s open-carry ban and Colorado’s permit system leaves a law-abiding visitor from a non-reciprocal state with no lawful way to carry a handgun for self-defense in Denver. These are allegations, and no court has ruled. But the pleading presses a question that New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), makes difficult for the government to answer.
The Gap the Complaint Describes
The structure is simple. Colorado generally allows open carry, but Denver’s municipal code prohibits it within the city and county. Colorado’s concealed-carry permits are available only to Colorado residents under C.R.S. § 18-12-203(1)(a), and the State recognizes a nonresident’s out-of-state permit only where a reciprocity arrangement exists under § 18-12-213(1). By the complaint’s count, Colorado has such arrangements with 34 states and lacks them with 15 states and the District of Columbia: California, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Nevada, New Jersey, New York, Oregon, Rhode Island, South Carolina, Vermont, and Washington.
Mr. Hoffman, who lives in Emerald Hills, California, falls into that group. California does not recognize Colorado permits, so Colorado does not recognize California’s. He cannot open carry in Denver, and he cannot obtain or use a permit to carry concealed. The complaint puts the result bluntly: “for an entire class of law-abiding citizens wishing to exercise their constitutionally protected right to carry a handgun in public for self-defense, Denver is a gun-free zone.”
The claim is narrower than a general attack on Colorado law. Colorado does not ban carry generally. The alleged injury arises from the interaction of the two regimes as applied to nonresidents of non-reciprocal states, and in my judgment that interaction operates as a full carry ban for those citizens.
Who Is Suing, Whom, and for What
The plaintiffs are Mr. Hoffman and Firearms Policy Coalition, Inc. The defendants are the City and County of Denver and state and local officials sued in their official capacities, including the heads of the Colorado Bureau of Investigation and State Patrol, the Denver district attorney, the Denver police chief, and the Denver sheriff.
The complaint pleads two claims. The first arises under the Second and Fourteenth Amendments, applying the Bruen framework. The second arises under the Privileges and Immunities Clause of Article IV, which protects citizens of one State from discriminatory treatment in another. The plaintiffs seek declaratory relief, an injunction, and nominal damages.
The Bruen Burden
Under District of Columbia v. Heller, 554 U.S. 570 (2008), and Bruen, the analysis begins with text. Mr. Hoffman is one of “the people,” a handgun is an “Arm,” and carrying it in public is to “bear” it. Once the text covers the conduct, the burden shifts to the government to demonstrate a historical tradition that justifies the restriction.
The complaint contends that Denver and Colorado cannot carry that burden. It alleges: “The Supreme Court did not qualify that holding by recognizing only a right to carry in one’s state of residence, and there is no historical tradition of states or localities imposing such restrictions.” Bruen announced a right to carry a handgun outside the home. It did not announce a right that expires at the border.
What the History Is Alleged to Show
The complaint’s historical argument is short. It alleges that at least four colonies, Virginia, Massachusetts, Rhode Island, and Maryland, required people traveling to carry arms with them for their safety. If accurate, colonial legislators treated the traveler as the person most in need of arms.
It then traces traveler exceptions through the antebellum period and Reconstruction. Tennessee’s 1821 carry restriction, for example, provided that “[N]othing herein contained shall affect … any person that may be on a journey to any place out of his county or state.” The complaint also cites 2 James Kent, Commentaries on American Law 340 (6th ed. 1848), for the traveler’s exception. Denver and Colorado must now identify a tradition running the other way. I do not believe one exists.
The Next Brick
This case is another brick in the wall. A right that is lost upon crossing a state line is not a right at all. No one forfeits the Fourth Amendment’s protection against unreasonable searches, the Fifth Amendment’s privilege against self-incrimination, or the First Amendment’s guarantees by driving into another state. The Second Amendment is entitled to the same treatment.
My forecast, and it is a forecast, is that the District of Colorado will rule for Mr. Hoffman. I also expect that when the Supreme Court ultimately takes up the question of nonresident carry, the Second Amendment side will prevail. Each such decision builds the precedent from which a broader national right to carry can be argued. The litigation will turn on whether the government can produce what Bruen requires of it, and I expect it to struggle.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.