Last week, in Jones v. Bonta, a split panel of the Ninth Circuit ruled that California’s restriction on rifle purchases by 18- to 20-year olds violates the Second Amendment. The case is a major victory for gun-rights proponents, but that victory is likely to be short-lived. The en banc Ninth Circuit tends to reverse panels that vindicate Second Amendment claims. It’s likely this case will go en banc as well. But even though its formal legal effect may be temporary, the decision is analytically, doctrinally, and jurisprudentially significant in the way it assesses state law. Those moves may be influential to other judges reviewing Second Amendment challenges and even to the Supreme Court itself if this case eventually makes its way to the high court.
There are actually two laws at issue in the case. The first bars young adults—those between ages 18 and 21—from purchasing long guns (rifles, shotguns, etc.) without first obtaining a hunting license. That law exempts certain law enforcement and active and former military members. The second law at issue completely bars young adults from purchasing one kind of long gun—centerfire semiautomatic rifles. It does not have any exceptions for hunting license holders, although it exempts the same set of law enforcement and military members. Under these laws, young adults are not prohibited from possessing long guns, including centerfire semiautomatic rifles, nor barred from acquiring them in legal ways other than purchase, such as intrafamily transfers (like a gift from a parent). The state’s restriction on the subset of rifles was enacted in 2019 after the Poway synagogue shooting, perpetrated by a 19-year old with a semiautomatic rifle (only the dissent mentioned the impetus for the law). A law not challenged in the litigation, but that formed part of the panel’s discussion of the overall regime, bars young adults from purchasing handguns.
In the district court, the challengers lost on their claims against both the general long gun regulation and the narrower rifle restriction. That court concluded that the state won under the first step of the two-part framework: these laws did not burden conduct protected by the Second Amendment. As an alternative holding, the trial court applied intermediate scrutiny to each claim and held that the laws would pass.
On appeal, Judge Ryan Nelson, joined by Judge Kenneth Lee, affirmed the ruling as to the hunting license requirement, but reversed the ruling as to the semiautomatic rifle restriction. At the first stage of the two-part framework, the majority first acknowledged its limitation as “jurists not historians,” and even noted that corpus linguistics could be a useful part of the historical inquiry (it had called for briefing on the question in this case, but neither party urged the court to use corpus linguistics to help resolve the dispute). In determining at step one whether “the challenged law regulates conduct historically outside the scope of the Second Amendment,” the panel stated that “the Framers’ understanding of the Second Amendment at and around the time of ratification has special significance.” It added that, because the Fourteenth Amendment incorporated the Second Amendment, “our historical analysis also must consider how the right to keep and bear arms was understood in 1868, when that amendment was ratified.” The court did not provide any insight into which timeframe’s tradition to adopt if the historical evidence was different in these each period.
To assess the historical evidence, the court first stated that even though this was a regulation of commerce, the district court was correct in that its “historical analysis focused not on the history of commercial regulations specifically but on the history of young adults’ right to keep and bear arms generally.” The court then expressly held that “the right to keep and bear arms includes the right to purchase them.” “And thus,” says the court, “laws that burden the ability to purchase arms burden Second Amendment rights.” That last line is important. It seems to mean that, in most cases, commercial regulations of firearms will always get past step one of the two-part framework, notwithstanding Heller’s and McDonald’s assurances that those opinions did not call into question “laws imposing conditions and qualifications on the commercial sale of arms.”
With respect to historical evidence, the court laid out five data points that led it to conclude that this law burdens the right of young adults to keep and bear arms:
The court then went through each point to adduce support for the conclusions it reached.
A few observations I had reading that evidence: the court relied on militia statutes that sometimes mandated service and weapon possession by young adults (and what we would today call non-adult teenagers, like those 16 and 17 years old) to support that those individuals had a right to possess those weapons. At a few points, the court relied on a dissent by Judge Edith Jones in a Fifth Circuit decision upholding a different restriction on the rights of young adults, writing that “[m]uch of Judge Jones’s historical analysis remains unrefuted,” and that “dissents from denial from rehearing en banc, such as the one written by Judge Jones, can be persuasive judicial guideposts.” In discussing laws after Reconstruction that restricted age-based purchases, the court noted that “cases from this time did not address the constitutionality of laws that regulated firearm ownership by young adults.” It seemed to take that as a sign that the issue was unsettled rather than—what seems equally an plausible inference to me—that those laws were widely seen as constitutional.
The court concluded from its historical overview that “the Second Amendment protects young adults’ right to keep and bear arms.” As the court put it, “The Second Amendment refers to the militia, and young adults had to be in the militia and bring their own firearms. This reference implies at least that young adults needed to have their own firearms.” Another similar observation: it’s remarkable to me to glean from these facts any inference about a right against the legislature. All those facts show is legal permission—and in some cases statutory mandate—for young adults to have guns. Without more argument, they don’t support the conclusion that young adults held rights to possess (or purchase) those guns. The court doesn’t make that argument, but instead rejects any notion that the rights of these young adults are connected to the militia because Heller declared the right to keep and bear arms to be independent of militia service.
The court then rejected historical evidence from the Reconstruction era about restrictions on young adults. “On top of the deeply offensive nature of many of them,” the court said, “nineteen out of twenty-eight banned only the sale of handguns, and California’s handgun ban is not at issue.” Only five states had complete bans on the sale of all firearms to minors.
Finally, as to counterarguments, the court rejected California’s argument that its laws were the kind of “conditions and qualifications on the commercial sale of arms” or “longstanding prohibitions on the possession of firearms” by certain groups that Heller saved. For the semiautomatic rifle restriction, the court said that was a prohibition, but not on a group that Heller enumerated. And, although the hunting license regulation was a condition or qualification on the commercial sale of arms, that did not mean it survived at step one. “Some presumptively lawful measures might burden conduct unprotected by the Second Amendment, while others might presumptively pass the applicable level of scrutiny.” And in this case, it said, the conduct was protected, so “[t]he Supreme Court’s observation in Heller is no obstacle to this holding.”
In discussing the second step of the inquiry, the court laid down some guideposts:
The historical analysis controls the first step of the inquiry but not the second. In applying a tier of scrutiny in the second step, we focus not on the historical record (i.e., what kinds of regulations were present at the founding), but on the gravity of the state’s interest (compelling/significant/legitimate) and the degree of tailoring between the regulation and that interest (narrow tailoring/reasonable fit/rational relation). In finding no burden on Second Amendment rights, the district court improperly relied on founding era regulations.
In applying that second part of the two-part framework, the court held that the district court correctly applied intermediate scrutiny to the hunting license regulation, but should have applied strict scrutiny to the semiautomatic rifle restriction. As to the former, because the law simply required a person to obtain a hunting license to purchase a long gun (other than a centerfire semiautomatic rifle), it wasn’t a significant burden. As to the latter, because a hunting license was not sufficient, “it is a blanket ban for everyone except police officers and servicemembers.” The court argued that the circuit has never applied intermediate scrutiny to a law like this before:
To the contrary, our cases applying intermediate scrutiny have dealt with two kinds of laws. First, we have applied intermediate scrutiny to laws that govern conduct outside the core of the Second Amendment because the actors are not ‘law-abiding, responsible citizens’ under Heller. This rule does not apply here. And second, we have applied intermediate scrutiny to laws that regulate either the way people can obtain or use firearms, or auxiliary features of those firearms.
(Citations omitted). The court emphasized that the law here “bans almost all young adults from having semiautomatic rifles.” In fact, the panel did something the Ninth Circuit en banc eschewed in the Peruta case when it considered the “cumulative effect” of California’s unchallenged handgun restriction for young adults. Adding that to the centerfire rifle restriction at issue, “[t]hat leaves nonsemiautomatic centerfire rifles, rimfire rifles, and shotguns,” all of which the court said were subpar self-defense alternatives.
Even acknowledging that shotguns are effective weapons for self-defense in the home, shotguns are outmatched by semiautomatic rifles in some situations. Semiautomatic rifles are able to defeat modern body armor, have a much longer range than shotguns and are more effective in protecting roaming kids on large homesteads, are much more precise and capable at preventing collateral damage, and are typically easier for small young adults to use and handle.
(Footnote omitted). As legal scholar and expert on self-defense law Eric Ruben pointed out in a Twitter thread about the opinion, the court’s identified self-defense alternatives focus exclusively on what firearms could be used in self-defense, ignoring all nonfirearm “arms” and other means of self-defense, even though firearms are rarely used in self-defense situations.
Because this law impedes the easy availability of semiautomatic rifles, said the court, it imposes a severe burden. The ability of young adults to receive these rifles as gifts from family does not alleviate the burden because it “makes young adults’ Second Amendment rights conditional on the rights of others.” Nor do provisions allowing loans from other family members for temporary periods of time. And the fact that the restrictions lift when a person turns 21 has no bearing, the panel said, because even a temporary deprivation of a constitutional right is severe.
As should be clear from this analysis, the panel’s insistence that the restrictions on purchase (but not possession) constitutes a “ban” is almost the entire ballgame. As I’ve highlighted at least a few times on this blog, Joseph’s article, aptly called “Bans,” explains how and why courts make this characterization and what it triggers in constitutional adjudication. The Jones court is a good example: “this ban of semiautomatic rifles requires strict scrutiny, because handguns are already banned, and semiautomatic rifles are now effectively banned. That means two of the three types of effective self-defense firearms are banned, leaving young adults with limited or ineffective alternatives in many self-defense scenarios, and severely burdens their Second Amendment rights.” (Emphases added.) As the dissent points out, this law is much different from the ban addressed in Heller, where no one could possess a handgun in the home, for life, and characterizing this restriction as a ban leads right into the court’s conclusion that it violates the Second Amendment.
After declaring the appropriate level of scrutiny, the court’s applications were fairly straightforward. One argument that stood out to me, however, was the panel’s statement that—in thinking through what qualifies as a substantial/compelling government interest—public safety “is not a standalone government interest separate from the Second Amendment.” Remarkably, the court said that “[t]hough public safety is important, firearms were also dangerous in 1791, when the Second Amendment was ratified, and the government then also had an interest in promoting public safety.” It’s strange to suggest that firearms today pose the same level of threat to others as firearms did in 1791. As Darrell has written (and is writing more about), modern firearms are significantly more lethal.
I’m not sure what to make of the panel’s public safety argument, but if it suggests that public safety is not a legitimate government interest for enacting gun regulations, it’s both radical and radically ahistorical. But the panel is equivocal on that point, for it also says: “Thus, in the reasonable fit part of the analysis, the importance of the interest has no effect: once the interest is shown to be important, the question becomes whether the law is a reasonable fit. The importance of the interest cannot override Second Amendment rights.” It is hard for me to parse what these sentences mean. Nonetheless, the panel affirmed the district court’s conclusion that the hunting license regulation is a reasonable fit for the government’s interest and thus passes intermediate scrutiny.
But as to the semiautomatic rifle restriction, the panel faulted the district court for not using strict scrutiny and held, in the alternative, that the law would fail even under intermediate scrutiny. In this part of the analysis, the panel criticized the Ninth Circuit’s “cherry-picked formulation” of intermediate scrutiny that has “dispensed with the fit requirement.” It’s really a two-pronged formulation, said the panel: “This is the essence of the intermediate scrutiny test: the regulation must be a reasonable fit for the government’s stated objective, which means not just that it accomplishes something, but also that it does not burden far more speech than is necessary.” “When we omit the second part of the inquiry, we neglect to consider fit at all.” Quoting the Oxford Dictionary of English’s definition of “fit” the panel said: “a law is a good fit for a goal if it regulates only when it helps achieve that goal, and not in other instances. The more innocent conduct that is regulated, the less good a fit the law is. And conversely, sweeping in less innocent conduct makes for a better fit.” (I’ll admit it strikes me as a bit silly to use a dictionary not to help understand the terms of a constitutional provision or statutory text but to explain a word used in a doctrinal test created by the Supreme Court.)
On the question of the fit of the semiautomatic rifle restriction with California’s interests, the court analogized to Craig v. Boren, an equal protection case the Supreme Court decided under intermediate scrutiny (as did the majority in a now-vacated Fourth Circuit decision on a different firearm restriction for young adults). In Craig, the Court said the law was overbroad because it forbade all young adult males’ alcohol purchasing when only 2% of male young adults drove drunk. Bringing that statistical analysis over directly, the panel here said that only a small fraction of young adults misuse semiautomatic rifles (0.25% are arrested for violent crimes) and yet the law applies to all young adults. Yet, the panel cautioned, “[w]e establish no rigid statistical framework; we use a few numbers only to compare Craig v. Boren with this case, and to illustrate that the fit here is substantially more tenuous.” The court also acknowledged that the Second Amendment does not require individualized hearings, but it did say that “one way that states can improve regulations’ fit is by having exceptions or more individualized assessment.”
Judge Lee wrote a concurring opinion stating that the majority explained how “California’s law effectively banning the sale or transfer of semiautomatic firearms to young adults conflicts with the text, tradition, and history of the Second Amendment.” This is a curious way of putting it, since Judge Nelson didn’t even gesture in the way of the text, history, and tradition alternative test championed by many conservative judges, but applied the Ninth Circuit’s two-part framework to strike down the law. The history the majority outlined went only to part one of the framework, asking if the Second Amendment came into play, not the step two analysis. The main thrust of his concurrence, however, was to criticize a watered down version of intermediate scrutiny. “To accept the state’s argument would mean allowing the government to restrict individuals’ enumerated constitutional rights based solely on their group membership.” But, again, it’s curious to me to call “being an 18- to 20-year old” a “group” in any meaningful sense in which there’s membership. He added that “[y]oung adults have the same constitutional rights as the middle-aged or the elderly—even if some of them may not necessarily have the wisdom or judgment that age and experience can bring—for the same reason that we do not limit fundamental rights based on supposed intelligence, maturity, or other characteristics.” He concluded with an acknowledgment of the toll and tragedy of gun violence, but said that the statistics on gun misuse should “provide a perspective on whether we should restrict a constitutional right for the larger population based on a minuscule percentage of the populace who abuses that right.”
Judge Sidney Stein, a New York district judge sitting by designation, dissented. In his view, the lower court decision should have been affirmed in all respects. He particularly faulted the majority for “[n]eglecting consideration of either the disproportionate perpetration of violent crime by, or the relatively immature and variable cognitive development among, adults under age 21.” He also criticized the enunciation of a right to purchase guns: “I do not contest that the prohibition on FFLs selling semiautomatic rifles to young adults is directly tied to young adults’ ability to purchase semiautomatic rifles. However, while the Second Amendment right surely protects the right to possess and use firearms, the majority’s inferential leap to the assumption that it protects the right to purchase firearms goes too far.” And he rejected the majority’s characterization of the law as a ban, writing that it leaves open other mechanisms to acquire rifles (intrafamilial transfer, loans, etc.) and no prohibition on possession or use. Thus, he said, “to classify it as a ban without qualification is a patent misreading of the statutory text.”
One other critique I think worth highlighting is the dissent’s discussion of what the history can show: “historical review in line with an originalist understanding of constitutional rights tends to produce different interpretations and conclusions depending on the level of generality from which the analysis begins.” That criticism obviously has an impact not just on how these Second Amendment cases are discussed and debated, but the history and tradition at issue in Dobbs as well. (As Judge Sutton said in one of the circuit decisions on the Affordable Care Act’s individual mandate, “[l]evel of generality is destiny in interpretive disputes.”)
Although I disagree with much of the panel’s legal analysis, it strikes me as a mainstream, reasonable view of a contested question and, what’s more, as a decision vigorously vindicating Second Amendment rights that doesn’t resort to the vitriolic rhetoric and ad hominem attacks that I’ve criticized in other Second Amendment opinions (like Judge VanDyke’s recent separate opinion and Judge Benitez’s many opinions). I’ve said something similar about the serious tone of Judge Lee’s prior panel opinion affirming a Judge Benitez opinion and about other decisions vindicating Second Amendment rights, so my criticism of the tone of those other opinions isn’t because of the outcomes they reach, but the manner in which they go about doing so. Second Amendment doctrine is still in its infancy and the life and death stakes of litigation call for a seriousness that is often missing in some opinions by judges in the Ninth Circuit. Thankfully, no matter how one views the legal conclusion the panel reached here, this isn’t one of those rulings that lack seriousness.
