In Jones v. Bonta, 2022 U.S. App. LEXIS 12657 (9th Cir. May 11, 2022), the Ninth Circuit Court of Appeals determined the California law prohibiting the sale of semiautomatic rifles to young adults was unconstitutional. In reaching its conclusion, the Court found that the laws burdened the right to home self-defense and did not reasonably fit the objective of reducing violence.
Background
California regulates the acquisition, possession, and ownership of firearms. Except for some intrafamily transfers and loans, all transfers of firearms must happen at a licensed firearms dealer.[1] The purchaser must have a valid firearm safety certificate (“FSC”).[2] People with hunting licenses, active and reserve peace officers, federal officers or law enforcement agents, and active or honorably retired members of the armed forces are exempt from the FSC requirement.[3]
California also regulates young adults’ commerce in firearms.[4] After first banning only the sale of handguns, California then prohibited the sale to young adults of all firearms, except for sales of long guns to young adults who (1) have a state hunting license, (2) are peace officers, active federal officers, or active federal law enforcement agents and are allowed to carry firearms for their work, or (3) are active or honorably discharged members of the military.[5]
Several young adults, gun shops, and advocacy groups (“Plaintiffs”) sued, asking the District Court to enjoin the long-gun regulation under the Second and Fourteenth Amendments. Then, while the suit was pending, California again amended the law, banning sales of semiautomatic centerfire rifles[6] to young adults, and excepting only law enforcement officers and active-duty military, but not hunting license holders. In response, Plaintiffs withdrew their motion for a preliminary injunction, amended their complaint to challenge the new ban, and again sought a preliminary injunction of both the long gun regulation and the semiautomatic rifle ban under the Second Amendment.
The District Court declined to issue a preliminary injunction, holding that Plaintiffs had not shown that they were likely to succeed on the merits, because the laws did not burden Second Amendment rights and would likely survive intermediate scrutiny. The District Court also held that Plaintiffs had not shown irreparable harm and that the balance of interests did not favor enjoining the laws.
First, the District Court observed that other courts had held that similar laws do not burden Second Amendment rights. The District Court expressed that these courts found that similar laws were “longstanding, do not burden the Second Amendment, and are therefore presumptively constitutional.” The District Court then reasoned that “[i]ndividuals under the age of 21 were considered minors or ‘infants’ for most of our country’s history without the rights afforded adults” and therefore they are among those “believed unfit of responsible firearm possession and use.” Addressing the tradition of militia members who were under 21 years old, the District Court reasoned that this tradition actually supported the constitutionality of the laws. The District Court explained that “[m]ilitia members were required to possess their own firearms if they complied with accountability and maintenance regulations” and thus the “strict rules surrounding militia duty” show that the “right to firearm possession came with obligations to ensure public safety.” Because of other courts’ holdings, the longstanding history of similar regulations, and its militia analysis, the District Court reasoned that California’s laws did not burden the Second Amendment. The District Court thus held that Plaintiffs were not likely to succeed on the merits.
Although it found no burden on Second Amendment rights, the District Court nevertheless proceeded to consider the level of scrutiny analysis. In determining whether to apply strict or intermediate scrutiny, the District Court reasoned that the laws neither implicated the core Second Amendment right nor severely burdened that right. The District Court noted that young adults could receive otherwise prohibited firearms via transfer from immediate family. Because the laws were thus (in the District Court’s view) not complete bans, only intermediate scrutiny would be required.
The District Court then held that the laws likely would satisfy intermediate scrutiny. The District Court noted first that California’s goal of improving public safety was a significant objective. The Court then held that the laws provided a reasonable fit to those goals because it was commonly understood that young adults may require additional safeguards to ensure proper training and maintenance of firearms. Thus, Plaintiffs still were not likely to succeed on the merits, even under intermediate scrutiny.
The District Court also held that Plaintiffs failed to show irreparable harm. The District Court explained that young adults could still get firearms, either under an exception, through a transfer from family, or by using them at shooting ranges. The District Court also reasoned that because Plaintiffs waited two months after filing their amended complaint before moving for a preliminary injunction, the delay undermined a finding of irreparable harm.
Finally, the District Court also held that the balance of interests weighed against enjoining the laws, reasoning that “[t]he potential harm of enjoining a duly enacted law designed to protect public safety outweighs Young Adults’ inability to secure the firearm of their choice without proper training.”
Plaintiffs appealed the denial of the preliminary injunction.
Discussion
The Ninth Circuit Court of Appeals initially observed that “[a] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008). When the government is a party, the balance of equities factor and the public interest factor merge. Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014).
The Second Amendment states, “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.”[7] The Ninth Circuit noted that the “Second Amendment right is exercised individually and belongs to all Americans.” District of Columbia v. Heller, 554 U.S. 570, 581 (2008). The “people” protected by the Second Amendment “refers to a class of persons who are part of a national community.” Id. (quoting United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990)). The Second Amendment “protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.” McDonald v. City of Chicago, 561 U.S. 742, 780 (2010). This right is “applicable to the States” through the Due Process Clause of the Fourteenth Amendment. Id. at 750. The Court observed that “[c]ommerce in firearms is a necessary prerequisite to keeping and possessing arms for self-defense.” Teixeira v. County of Alameda, 873 F.3d 670, 682 (9th Cir. 2017). The Ninth Circuit added that the right to keep and bear arms includes the right to purchase them. Thus, the Court explained, laws that burden the ability to purchase arms burden Second Amendment rights.
The Ninth Circuit explained that on the merits, for challenges to firearm laws under the Second and Fourteenth Amendments, the Court must apply a “two-step framework.” Young v. Hawaii, 992 F.3d 765, 783 (9th Cir. 2021) (en banc). First, the Court must consider whether the challenged law burdens conduct protected by the Second Amendment, exploring “the amendment’s reach based on a historical understanding of the scope of the Second Amendment right.” Mai v. United States, 952 F.3d 1106, 1114 (9th Cir. 2020) (quoting United States v. Torres, 911 F.3d 1253, 1258 (9th Cir. 2019)). If the challenged law regulates conduct historically outside the scope of the Second Amendment, then it does not burden Second Amendment rights. Mai, 952 F.3d at 1114.
However, the Court observed, if the challenged law “falls within the historical scope of the Second Amendment, we must then proceed to the second step of the Second Amendment inquiry to determine the appropriate level of scrutiny.” Jackson v. City & County of San Francisco, 746 F.3d 953, 960 (9th Cir. 2014). In this step, the court must determine which level of scrutiny to apply and must decide both “how close [each] law comes to the core of the Second Amendment right” and “the severity of [each] law’s burden on that right.” Mai, supra, at p. 1115. “Strict scrutiny applies only to laws that both implicate a core Second Amendment right and place a substantial burden on that right.” Id. (citing Torres, 911 F.3d at 1262). And “[i]n weighing the severity of the burden, [courts] are guided by a longstanding distinction between laws that regulate the manner in which individuals may exercise their Second Amendment right, and laws that amount to a total prohibition of the right.” Pena v. Lindley, 898 F.3d 969, 977 (9th Cir. 2018) (citing United States v. Chovan, 735 F.3d 1127, 1138 (9th Cir. 2013)). The Court stated that laws that regulate how individuals can exercise the right are less severe; laws that amount to a total prohibition of the right are more severe.
The Court explained that to withstand intermediate scrutiny, first, “the government’s stated objective [must] be significant, substantial, or important,” and second, there must be “a reasonable fit between the challenged regulation and the asserted objective.” Chovan, 735 F.3d at 1139. But to satisfy strict scrutiny, the law must be “justified by a compelling government interest and [be] narrowly drawn to serve that interest.” Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 799 (2011).
After an extensive review of the historical record, the Ninth Circuit determined that the record showed that the Second Amendment protects the right of young adults to keep and bear arms, which includes the right to purchase them. The Court observed, for example, that at the time of the founding of the country, all states required young adults to serve in the militia, and all states required young adults to acquire and possess their own firearms. The Court also noted that, just after the founding, Congress established a federal militia, which included young adults, and required them to acquire and possess their own weapons. Thus, young adults have Second Amendment protections as “persons who are a part of a national community.” Heller, 554 U.S. at 580 (citing Verdugo-Urquidez, 494 U.S. at 265). The Court of Appeals therefore concluded that both California laws burdened conduct within the scope of the Second Amendment, and that the District Court erred in concluding otherwise.
Turning to the appropriate level of scrutiny analysis, the Ninth Circuit found that the District Court properly applied intermediate scrutiny to the long gun hunting license regulation, which allowed a young adult to buy a long gun if he gets a hunting license. The Court of Appeals explained that this requirement did not prevent young adults from having any firearms or from using them in any particular manner, and therefore did not impose a significant burden on the Second Amendment right to keep and bear arms. Moreover, the Ninth Circuit found that the District Court did not abuse its discretion in finding that the regulation would survive intermediate scrutiny, as defendants would likely be able to show that California’s long-gun regulation was a reasonable fit for the stated objectives of increasing public safety through sensible firearm control.
As to the semiautomatic centerfire rifle ban, however, the Ninth Circuit determined that the District Court erred by applying intermediate scrutiny, rather than strict scrutiny. The Court of Appeals explained that strict scrutiny applied because the law on its face banned almost all young adults from having semiautomatic rifles. The Court stated that the main difference between the semiautomatic rifle ban and the long-gun regulation was the exceptions. The long-gun regulation had a readily available exception – young adults could acquire hunting licenses. The semiautomatic rifle ban, however, had no such exception: the only young adults who could buy semiautomatic rifles were some law enforcement officers and active-duty military service members.
The Court stated that the Ninth Circuit had never held that intermediate scrutiny applied to a rule that banned the purchase of a major category of firearm. Young adults were already prohibited from purchasing handguns,[8] which the Court described as “the quintessential self-defense weapon.” The Court concluded that the law banning semiautomatic rifles would take away one of the two remaining practical options for self-defense in the home (the other being a shotgun), and would leave young adults with the shotgun, which was a self-defense weapon which was not ideal or even usable in many scenarios that the Court discussed. The Court indicated that the law banning semiautomatic rifles was directed at weapons that were effective, and superior to shotguns in some instances, for self-defense in the home. For these reasons, the Court held that California’s ban was a severe burden on the core Second Amendment right of self-defense in the home.
The Ninth Circuit considered the intermediate scrutiny test anyway for the semiautomatic rifle law. The Court emphasized that intermediate scrutiny requires not only a reasonable fit between the challenged regulation and the asserted objective, but also that the regulation does not burden more conduct than necessary. The Court lamented that the Circuit’s Second Amendment cases had sometimes omitted the does-not-burden-more-conduct-than-necessary part of the inquiry. The Court of Appeals noted that California’s stated objective for the semiautomatic rifle ban was the same as for the long gun regulation: to promote public safety and reduce gun violence and crime. The question was whether the ban—prohibiting commerce in semiautomatic rifles for all young adults except those in the police or military—was a reasonable fit for that goal.
The Ninth Circuit observed that in adopting the ban, the Legislature considered various statistics. Specifically, it knew that young adults were less than 5% of the population but accounted for more than 15% of homicide and manslaughter arrests. Thus, young adults are more than three times more likely to be arrested for homicide and manslaughter than other adults. The Court noted, however, that only 0.25% of young adults are arrested for violent crimes. The Court thus determined that California’s law would sweep in 400 times (100% divided by 0.25%) more young adults than would be ideal. The Court concluded that because it regulated so much more conduct than necessary to achieve its goal, the law was unlikely to be a reasonable fit for California’s objectives. The Court of Appeals concluded that even applying intermediate scrutiny, the ban prohibiting commerce in semiautomatic rifles for all young adults (except those in the police or military) regulated more conduct than was necessary to achieve its goal and therefore failed the reasonable fit test.
Lastly, the Ninth Circuit held that the District Court also abused its discretion in finding that there was no irreparable harm and that the public interest favored declining to issue an injunction.
The Ninth Circuit Court of Appeals accordingly affirmed the District Court’s denial of the injunction as to the long-gun regulation, reversed the lower court’s denial of the injunction as to the semiautomatic centerfire rifle ban, and remanded for further proceedings.
Concurring, Judge Lee joined the opinion in full but wrote separately to highlight how California’s legal position has no logical stopping point and would ultimately erode fundamental rights enumerated in the Constitution. If California could deny the Second Amendment right to young adults based on their group’s disproportionate involvement in violent crimes, then the government can deny that right—as well as other rights—to other groups. Judge Lee wrote that “we cannot jettison our constitutional rights, even if the goal behind a law is laudable.”
Dissenting in part, Judge Stein stated that while the majority was correct to apply intermediate scrutiny to the long gun regulation to affirm the District Court’s denial of the preliminary injunction, it erred in applying strict scrutiny to and reversing the District Court with respect to the semiautomatic centerfire rifle regulation. On that basis, Judge Stein concurred with the majority’s holding and reasoning with respect to the long gun regulation and dissented from its holding and reasoning with respect to the semiautomatic rifle regulation. Judge Stein stated that by neglecting consideration of either the disproportionate perpetration of violent crime by, or the relatively immature and variable cognitive development among, adults under age 21, the majority opinion failed to conduct a legal analysis consistent with bulk of precedent within the Ninth Circuit and elsewhere. Not only in Judge Stein’s view was it error for the majority to apply strict scrutiny to the semiautomatic rifle regulation, but its alternative holding that the regulation failed under intermediate scrutiny suffered from a faulty assessment of whether the regulation was a “reasonable fit” for California’s public policy objectives.
HOW THIS AFFECTS YOUR AGENCY
Young adults may purchase semiautomatic rifles under the holding here. Moreover, as of the writing of this Alert, the Supreme Court has issued the long awaited Bruen decision, which categorically rejected the two-step process employed by the Ninth Circuit in analyzing the Second Amendment claims utilized in the Bonta decision. As such, it would not be surprising if the plaintiffs in this case seek reconsideration of this decision or move for summary judgment on their claims.
As always, if you want to discuss any of this in greater detail, do not hesitate to contact James Touchstone at jrt@jones-mayer.com or by telephone at (714) 446-1400.
Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.
[1] Penal Code sections 27545, 28050.
[2] Id. sections 31615, 27540(e).
[3] Id. section 31700(a)-(c).
[4] For this discussion, “young adults” refers to people whose age is at least 18 but not yet 21.
[5] 2017 California Senate Bill No. 1100, California 2017-2018 Regular Session. Transfers of handguns to young adults are also banned (except for antique handguns and intrafamily transfers) under Penal Code section 27505(a).
[6] According to the text of the case, “A rifle is a kind of long gun. A semiautomatic rifle fires a single bullet each time the trigger is pulled and does not require the user to manually cycle between shots. And a centerfire rifle uses centerfire ammunition, in which the primer that ignites the powder is in the center of the bullet, rather than at the rim. Most rifles are centerfire rifles, and thus for ease of reference, we refer just to semiautomatic rifles.”
[7] U.S. Const. amend. II.
[8] Penal Code section 27505, 18 U.S.C. section 922(b)(1).