Barry Bauer v. Xavier Becerra
2017 U.S. App. LEXIS 9658
| 9th Cir. | 2017Background
- California’s DROS system requires firearm transfers through licensed dealers and charges a $19 DROS fee to fund background checks and related firearm regulatory activities.
- Administrative cost of background checks is about $14, leaving roughly $5 per transfer used (since 2011) to help fund California’s Armed Prohibited Persons System (APPS).
- APPS identifies people who acquired firearms lawfully but later become prohibited (felons, domestic-violence respondents, certain mental-health prohibitions) and funds investigation and enforcement to disarm/prosecute them.
- Plaintiffs (Bauer) challenged the $5 portion of the DROS fee under the Second Amendment, arguing APPS enforcement is not sufficiently related to the fee’s regulatory target.
- The district court granted summary judgment for the State; Ninth Circuit assumed (without deciding) the fee implicates the Second Amendment but upheld the $5 allocation under intermediate scrutiny as a permissible fit with public-safety objectives.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the $5 DROS allocation falls outside Heller’s “conditions on commercial sale” category and thus burdens Second Amendment conduct | Bauer: Fee applies to all transfers (not just commercial sales) so it does not fit Heller’s “conditions/qualifications on commercial sale” safe-harbor | State: DROS regulates dealer-mediated transactions and is thus a condition on commercial sale covered by Heller | Court: Did not decide scope issue; assumed Second Amendment applies and proceeded to scrutiny analysis |
| Appropriate level of scrutiny for the fee if it burdens protected conduct | Bauer: Fee burdens core right to acquire firearms, should trigger strict scrutiny | State: Burden is minimal; intermediate scrutiny appropriate | Court: Burden is minimal (especially re: $5); intermediate scrutiny applies |
| Whether the DROS fee allocation satisfies intermediate scrutiny (fit between means and public-safety objective) | Bauer: APPS enforcement is not closely related to the acquisition activity taxed; fee may be a general revenue tax | State: Funding APPS advances public safety by disarming those later prohibited; APPS is closely related to DROS records and acquisition | Court: Held State has an important interest and the $5 allocation has a reasonable fit with that interest; fee survives intermediate scrutiny |
| Whether First Amendment fee jurisprudence should control (i.e., fee limited to actual administrative costs) | Bauer: Analogous fee law requires limiting fee to direct processing costs; enforcement allocations exceed that | State: Enforcement costs are lawfully included; DROS payers are the population regulated and APPS policing is related to the licensed activity | Court: Declined to decide whether First Amendment fee law fully applies, but held even under that framework enforcement costs may be included; fee survives that inquiry too |
Key Cases Cited
- District of Columbia v. Heller, 554 U.S. 570 (2008) (recognized individual right to bear arms but noted presumptively lawful regulations including conditions on commercial sale)
- Silvester v. Harris, 843 F.3d 816 (9th Cir. 2016) (framework for determining level of scrutiny under Second Amendment; sliding-scale intermediate scrutiny)
- Jackson v. City & County of San Francisco, 746 F.3d 953 (9th Cir. 2014) (applied intermediate scrutiny to firearm regulations and discussed Heller step analysis)
- United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013) (formulated intermediate-scrutiny test and importance of reasonable fit)
- Kwong v. Bloomberg, 723 F.3d 160 (2d Cir. 2013) (upheld substantial firearm-related fee under heightened scrutiny analysis)
- Cox v. New Hampshire, 312 U.S. 569 (1941) (First Amendment fee jurisprudence: fees may be imposed to defray administration and policing costs, not to raise general revenue)
- Murdock v. Pennsylvania, 319 U.S. 105 (1943) (rejected license fee that functioned as a general revenue tax on exercise of rights)