The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Judge Ryan Nelson's opinion this morning in Jones v. Bonta, joined by Judge Kenneth Lee and in part (only as to the upholding of the hunting license requirement) by District Judge Sidney Stein (S.D.N.Y.):
California has restricted the sale of most firearms to anyone under 21. Plaintiffs challenged the bans on long guns and semiautomatic centerfire rifles under the Second Amendment. The district court declined to issue a preliminary injunction.
We hold that the district court did not abuse its discretion in declining to enjoin the requirement that young adults obtain a hunting license to purchase a long gun. But the district court erred in not enjoining an almost total ban on semiautomatic centerfire rifles. First, the Second Amendment protects the right of young adults to keep and bear arms, which includes the right to purchase them. The district court reasoned otherwise and held that the laws did not burden Second Amendment rights at all: that was legal error.
Second, the district court properly applied intermediate scrutiny to the long gun hunting license regulation and did not abuse its discretion in finding it likely to survive. But third, the district court erred by applying intermediate scrutiny, rather than strict scrutiny, to the semiautomatic centerfire rifle ban. And even under intermediate scrutiny, this ban likely violates the Second Amendment because it fails the "reasonable fit" test. Finally, the district court also abused its discretion in finding that Plaintiffs would not likely be irreparably harmed. We thus affirm the district court's denial of an injunction as to the long gun regulation, reverse its denial of an injunction as to the semiautomatic centerfire rifle ban, and remand for further proceedings consistent with this opinion.
Judge Lee also wrote a separate concurrence, "to highlight how California's legal position has no logical stopping point and would ultimately erode fundamental rights enumerated in our Constitution":
California justifies its law by citing statistics showing that young adults constitute less than 5% of the population but represent more than 15% of homicide and manslaughter arrests. The state argues that intermediate scrutiny should apply and that it survives that test because the law is a "reasonable fit" for the state's important public safety goal.
But even assuming intermediate scrutiny applies, the state's assertion of a "reasonable fit" reduces that requirement to a malleable and meaningless limit on the government's power to restrict constitutional rights. As the majority opinion capably points out, only 0.25% of young adults commit violent crimes. So California limits the rights of 99.75% of young adults based on the bad acts of an incredibly small sliver of the young….
If we accept the state's argument, it redefines intermediate scrutiny as a rational basis review with a small sprinkle of skepticism in Second Amendment cases. And that would allow the government to trample over constitutional rights just by relying on anecdotal evidence and questionable statistics that loosely relate to a worthwhile government goal. If California can 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.
For example, California arguably has a more compelling case if it enacts a similar gun-control law that targets males of all ages instead of young adults. Statistics— and science—show that men almost exclusively commit violent crimes. Take mass shootings for instance. Men have been involved in 99% of all mass shootings in America since 1966, according to a database maintained by the Violence Project.2 California can thus theoretically claim that if men cannot own firearms, it will eliminate 99% of mass shootings.
Judge Stein dissented:
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 fails to conduct a legal analysis that comports with the corpus of precedent within this Circuit and elsewhere. Not only in my view is it error for the majority to apply strict scrutiny to the semiautomatic rifle regulation, but its alternative holding that the regulation fails under intermediate scrutiny suffers from a faulty assessment of whether the regulation is a "reasonable fit" for California's public policy objectives….
[B]y its terms, the semiautomatic rifle regulation is not a ban on young adults' ability to obtain semiautomatic rifles. This is true even though it prohibits FFLs [Federal Firearms Licensees] from selling or transferring semiautomatic rifles to young adults…. The semiautomatic rifle regulation allows for family gifts and a variety of other modes of possession through acquisition or loan; for example, the regulation permits a parent to purchase a semiautomatic rifle and transfer it to their child under age 21 through gift….
[Moreover, a]s the majority acknowledges, young adults still have access to reasonable alternatives for self-defense in the home, including the shotgun and other forms of long gun. Moreover, the time-limited nature of the regulation and the various avenues it leaves open to young adult possession of semiautomatic centerfire rifles mitigate its severity….
There's much more (the opinions and supplementary materials put together amount to 100 pages), but this should give a flavor of the positions.