The Volokh Conspiracy
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Ninth Circuit Strikes Down California "One-Gun-a-Month" Law
From today's opinion in Nguyen v. Bonta, written by Judge Danielle Forrest and joined by Judges John Owens and Bridget Bade:
[The] "core Second Amendment right … 'wouldn't mean much' without the ability to acquire arms." Thus, we have "consistently held that the Second Amendment … 'protects ancillary rights necessary to the realization of the core right to possess a firearm for self-defense.'" While we have not defined "the precise scope" of protected ancillary rights, we have held "that the plain text of the Second Amendment only prohibits meaningful constraints on the right to acquire firearms."
To demonstrate this principle, we discuss two of our prior cases. Teixeira concerned a zoning ordinance that made it "virtually impossible to open a [new] gun store in unincorporated [areas of] Alameda County." We nonetheless concluded that the ordinance was permissible because "there were ten gun stores in Alameda County" and buyers could purchase firearms at a sporting goods store located "approximately 600 feet away from the proposed site of [the plaintiff's] planned store." We stated that "the Second Amendment does not elevate convenience and preference over all other considerations."
Similarly, B&L Productions concerned a California law banning firearm sales on state property. We explained that while "a ban on all sales of a certain type of gun or ammunition in a region generally implicates the Second Amendment, … a minor constraint on the precise locations within a geographic area where one can acquire firearms does not." And we upheld the challenged law because "[m]erely eliminating one environment where individuals may purchase guns does not constitute a meaningful constraint on Second Amendment rights when they can acquire the same firearms down the street."
The laws we considered in Teixeira and B&L Productions are plainly distinguishable from the one-gun-a-month law here. Limiting where firearms may be sold, when there are other reasonably available options, is a significantly lesser interference with an individual's ability to acquire (and therefore possess) firearms than banning the purchase of more than one firearm in a 30-day period.
California suggests that the Second Amendment only guarantees a right to possess a single firearm, and that Plaintiffs' rights have not been infringed because they already possess at least one firearm. California is wrong. The Second Amendment protects the right of the people to "keep and bear Arms," plural. This "guarantee[s] the individual right to possess and carry weapons." And not only is "Arms" stated in the plural, but this term refers to more than just guns. It includes other weapons and instruments used for defense. See California's interpretation would mean that the Second Amendment only protects possession of a single weapon of any kind. There is no basis for interpreting the constitutional text in that way….
California next argues that the conduct it regulates does not fall within the protection of the Second Amendment because restricting citizens from purchasing only one firearm in a 30-day period does not prohibit them from possessing multiple firearms…. [But] we have … held that the Second Amendment prohibits not just bans but any "meaningful constraints on the right to acquire firearms." The delay in the federal statute analyzed by McRorey [which upheld] {a federal law allowing gun dealers to delay a sale for up to ten days to complete a background check} served a presumptively valid purpose. But with California's one-gun-a-month law, delay itself is the purpose. By categorically prohibiting citizens from purchasing more than one firearm of any kind in a 30-day period, California is infringing on citizens' exercise of their Second Amendment rights.
We are not aware of any circumstance where government may temporally meter the exercise of constitutional rights in this manner. And we doubt anyone would think government could limit citizens' free-speech right to one protest a month, their free-exercise right to one worship service per month, or their right to be free from unreasonable searches and seizures to apply only to one search or arrest per month. We could go on. If the frequency with which constitutional rights can be exercised could be regulated in this manner without infringement, what would limit government from deciding that a right need only be available every six months or once a year or at any other interval it chooses? California had no answer to this concern at oral argument.
And the court concluded that the law was not "supported by our 'historical tradition of firearm regulation'" (the test set forth by Bruen); you can read the opinion for more of the historical details.
Judge Owens concurred to stress that the opinion "does not address other means of restricting bulk and straw purchasing of firearms, which our nation's tradition of firearm regulation may support."
Raymond M. DiGuiseppe argued for plaintiffs.
