The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Judge Larry Alan Burns' decision today in Doe v. Bonta (S.D. Cal.):
Five California registered gun owners have filed suit to prevent Rob Bonta, Attorney General of the State of California, from enforcing a California law that permits the State to disclose their personal identifying information to bona fide research institutions for the ostensible purposes of preventing gun violence, shooting accidents, and suicide….
The gun owners, all of whom are law abiding citizens who passed background checks, raise four claims. First, they argue that AB 173 violates—or at minimum, chills—their Second Amendment right to keep and bear arms. Second, they maintain that disclosing their personal identifying information to non-government researchers violates privacy protections guaranteed to them by the Fourteenth Amendment. Next, they assert that AB 173 violates their right to due process under the Fourteenth Amendment by retroactively expanding access to their restricted personal information. Their final claim, applicable only to applicants for concealed weapon permits ("CCW") and holders of such permits, is that federal law preempts AB 173 insofar as AB 173 authorizes disclosure of their social security numbers to third parties in derogation of the federal Privacy Act of 1974….
The court rejected the Second Amendment challenge:
Bruen didn't undo all preexisting gun regulations. Licensing requirements, fingerprinting, background checks, and mandatory gun safety training courses exist in many states and operate as prerequisites to exercising the right to possess and carry firearms. The legitimacy of these longstanding and common regulations was recognized in District of Columbia v. Heller (2008) and in McDonald v. Chicago (2010)—a point acknowledged by Bruen….
What one gleans from these qualifications is that there is a difference between prohibiting a right and regulating the right; so long as the regulation of the right to keep and bear arms doesn't amount to a prohibition of the right, the regulation is permissible. Read together, Heller, McDonald, and Bruen establish that "the Second Amendment is neither a regulatory straightjacket nor a regulatory blank check." Rather, the cases collectively confirm that the Second Amendment permits laws and regulations that precondition the right to keep and bear arms on the obligation to comply with such ministerial tasks as providing personal identifying information and submitting to a background check—provided that the overall regulatory regime is neither overly discretionary nor overly burdensome. Laws requiring gun owners to comply with such ministerial tasks are presumptively valid and don't violate the plain text of the Second Amendment….
While Plaintiffs acknowledge the legitimacy of these regulatory prerequisites to gun ownership and possession, and expressly disclaim any purpose "to contest the statutory and regulatory scheme governing the collection of personal information in connection with firearms and ammunition transactions," they maintain that disclosure of such information to third party researchers denies ordinary citizens the right to keep and bear arms. Central to Plaintiffs' Second Amendment claims is the premise that sharing their personal information with outside gun research organizations jeopardizes their personal privacy and physical security. Plaintiffs hypothesize that if their identities are publicly revealed, they will be harassed, subjected to reprisals, and exposed to heightened risks of their homes being burglarized or becoming victims of violence. Notwithstanding that DOJ protocols and the California Penal Code forbid any approved research organization from publicly disseminating the personal information of gun owners, Plaintiffs argue that their information may still be hacked. They also surmise that renegade researchers—hostile to their Second Amendment rights—could surreptitiously release their information to the public. Either possibility, according to Plaintiffs, presents a threat of infringement to their Second Amendment rights.
The trouble with both arguments is that they are entirely speculative and predictive of harm that is completely attenuated from the plain text and core protections of the Second Amendment. Starting with the possibility of hacking, to date, there has been no claim—not to mention any evidence—that personal information supplied by the DOJ to either the UC Davis or Stanford research organizations has been hacked. And the probability of hacking, though it can never be completely foreclosed, has been greatly reduced by the requirement that all bona fide research organizations follow strict data security protection protocols set by the FBI and DOJ.
Even without such protocols in place, the Court is dubious that the threat of hacking alone is sufficient to state a Second Amendment infringement claim. The only personal information to which the research organizations have access is information previously collected by the DOJ. No doubt recognizing the State's incontrovertible right to collect personal information from gun owners, Plaintiffs haven't argued—nor could they—that the mere collection of such information violates their Second Amendment rights by improperly subjecting them to the threat of hacking. Nor have they presented evidence that there is any greater threat that data will be hacked from the research organizations than from the DOJ itself. Indeed, the only known unauthorized disclosure of gun owner data was the June 27 mishap for which the DOJ was entirely at fault.
Plaintiffs' other fear—that dissident researchers might intentionally breach DOJ protocols by publicly leaking their personal information—is equally unsubstantiated. Again, to state the obvious, the possibility of a recusant, ideologically motivated employee gaining access to Plaintiffs' personal information isn't a risk that is peculiar to the UC Davis and Stanford gun research organizations. No doubt there are state employees, perhaps even some within the DOJ, with ideological axes to grind. But the mere possibility of misbehavior by a rogue activist isn't sufficient to prove that Plaintiffs will be deterred from exercising their Second Amendment rights. This tenuous possibility existed when Plaintiffs first supplied their personal information to the State so they could lawfully acquire firearms, purchase ammunition, or obtain a CCW permit. Unfortunately, rogue actors are a problem every society must grapple with in this technological age.
Additionally, the speculative possibility of hacking or insider malfeasance existed prior to the adoption of AB 173 and didn't prevent Plaintiffs from acquiring firearms and ammunition or obtaining or renewing CCW permits. Before AB 173's adoption, all five Plaintiffs in this case were registered California gun owners and one was granted a CCW permit. The limited disclosure of private information for research purposes permitted by AB 173 doesn't expose Plaintiffs to any novel risks or impose new burdens on them. Nor do these disclosures amount to an "abusive" practice that prevents Plaintiffs from acquiring additional firearms or ammunition or applying for or renewing a CCW permit in the future.
Plaintiffs' alternative argument is that even if AB 173 doesn't directly violate the Second Amendment, disclosure of their personal information to the research organizations chills their exercise of the right. A "chilling effect" on the exercise of a constitutional right occurs when a person seeking to engage in constitutionally protected activity is deterred from doing so by government regulations not specifically prohibiting the protected activity. The test is an objective one that asks whether a person of ordinary firmness would be deterred from exercising the protected right….
But considering the categorical prohibition on publicly disseminating any personal identifying information that the DOJ has imposed on the research organizations, the enhanced risks Plaintiffs fear are no more likely than the risks posed by many other California laws that compel citizens to furnish publicly available personal information. These include property title and land ownership registries, electoral rolls, and court documents. Applications for CCW permits and records of issuance of such permits are likewise considered public documents open to inspection in California unless the public interest clearly weighs against their disclosure. The pervasiveness of such publicly available personal information weighs strongly against the objective reasonableness of Plaintiffs' "chilling effect" claim.
For these reasons, the Plaintiffs' Second Amendment facial challenge to AB 173 fails. Permitting gun owners' information to be shared under strict privacy protection protocols for legitimate research purposes is merely a limited extension of the "presumptively lawful regulatory measures" that permit states to collect information from gun and ammunition purchasers and CCW permit applicants in the first place. Ancillary regulations like these don't restrict conduct covered by the plain text of the Second Amendment and are permissible….
For the court's similar analysis as to the other constitutional challenges, and its rejection of the Privacy Act of 1974 challenge, see the full opinion. Congratulations to Nelson Richards of the California Attorney General's office, who represents the defendant.