Case Information
*3
THOMAS, Chief Judge:
In this аppeal, we consider whether California’s allocation of $5 of a $19 fee on firearms transfers to fund enforcement efforts against illegal firearm purchasers violates the Second Amendment. We conclude that, even if collection and use of the fee falls within the scope of the Second Amendment, the provision survives intermediate scrutiny and is therefore constitutional. We affirm the judgment of the district court.
I
California regulates firearm sales and transfers through the Dealer’s Record of Sale (“DROS”) system, which was created a century ago and has been updated throughout the intervening years. See 1917 Cal. Stat. 221, § 7. The DROS system today requires that “any sale, loan, or transfer of a firearm” be made through a licensed dealer, Cal. Penal Code §§ 27545, 28050(a), and it requires dealers to keep standardized records of all such transactions, id. at §§ 28100, 28160 et seq. This statutory framework also requires the California Department of Justice (“the Department”) to run background checks prior to purchase, and to notify the dealer if a prospective firеarm purchaser is prohibited from possessing a gun under federal law or under certain provisions of California law relating to prior convictions and mental illness. Cal. Penal Code § 28220.
The DROS system allows the Department to charge a fee, known as the DROS fee, to cover the cost of running these background checks and other related expenses. [1] Cal. Penal Code § 28225. Although the use of the DROS fee was originally limited to background checks, 1982 Cal. Stat. 1472, § 129, this provision was later expanded to allow the fee to be used for “the costs associated with funding Department of Justice firearms-related regulatory and enforcement activities related to the sale, purchase, loan, or transfer of firearms,” as well as certain costs incurred by other agencies in compliance with the record-keeping and notification requirements of the background check provisions. Cal. Penal Code 12076(e) (repealed 2010, replaced by Cal. Penal Code § 28225). In 1995 the legislature capped the DROS fee, with inflation adjustment to be sеt by regulation. Cal. Penal Code § 28225(a). With inflation, the fee was most recently set at $19 in 2004. Cal. Code Regs. Tit. 11, § 4001.
In 2011, the California Legislature further expanded the permissible uses of the DROS fee by enacting the law that is challenged in this case. This law, commonly referred to as Senate Bill 819, changed the language of § 28225 to allow the DROS fee to be used for “firearms-related regulatory and enforcement activities related to the sale, purchase, possession , loan, or transfer of firearms.” Cal. Penal Code § 28225(b)(11) (emphasis added). In effect, this chаnge allows the Department to use a portion of the DROS fee “for the additional, limited purpose” of funding enforcement efforts targeting illegal firearm possession after the point of sale, through California’s Armed Prohibited Persons System (“APPS”). 2011 Cal. Stat. 5735, § 1(g).
The statute permits the Department to “require the dealer to charge each firearm purchaser a fee,” which is then remitted to the Department. Cal. Penal code § 28225.
6 B AUER V . B ECERRA The APPS program, established in 2001, enforces California’s prohibitions on firearm possession by identifying “persons who have ownership or possession of a firearm” yet who, subsequent to their legal acquisition of the firearm, have later come to “fall within a class of persons who are prohibited from owning or possessing a firearm” due to a felony or violent misdemeanor conviction, domestic violence restraining order, or mental health-related prohibition. Cal. Penal Code §§ 30000, 30005. Essentially, these are people who passed a background check at the time of purchase but would no longer pass that check, yet still possess a firearm.
The system identifies such people by cross-referencing the Consolidated Firearms Information System (“CFIS”) database of people who possess a firearm, which is generated primarily through DROS reporting, against criminal records, domestic violence restraining order records, and mental health records. Cal. Penal Code §§ 11106, 30005. This process generates a list of “armed prohibited persons,” which the Department uses for “investigating, disarming, apprehending, and ensuring the prosecution” of persons who have become prohibited from firearm possession.
Since the enactment of Senate Bill 819 in 2011, the APPS program—including both the identification of armed prohibited persons and the Department’s related enforcement efforts confiscating firearms from those people—has been partially funded by DROS fees. [2] However, only a portion of the DROS fee is used to fund APPS: the evidence in the record before us suggests that the cost of running background [2] Most notably, in 2013, the legislature apprоpriated $24 million from the DROS Account to the APPS program. 2013 Cal. Stat. 2, codified at Cal. Penal Code § 30015.
checks and processing DROS records is approximately $14, meaning that only the remaining $5 of each DROS fee is available for APPS funding.
Barry Bauer and five other individuals and entities (collectively, “Bauer”) challenge the use of this $5 portion of the DROS fee to fund APPS, arguing that it violates the Second Amendment because “the criminal misuse of *6 firearms” targeted by the APPS is not sufficiently related to the legal acquisition of firearms on which the fee is imposed. On these grounds, Bauer filеd suit against the Attorney General of California and the Chief of the California Department of Justice Bureau of Firearms (collectively, “the State”) in August 2011, seeking declaratory and injunctive relief under 42 U.S.C. § 1983. Bauer subsequently filed an amended complaint adding allegations regarding the 2013 appropriation of funds from the DROS account to the APPS program.
The district court granted summary judgment for the
State, concluding that the DROS fee does not violate the
Constitution because it falls outside the scope of the Second
Amendment as a “condition[ or] qualification[] on the
commercial sale of arms.”
Dist. of Columbia v. Heller
,
The district court had jurisdiction under 28 U.S.C. § 1331,
and we have jurisdiction to hear Bauer’s appeal under
28 U.S.C. § 1291. “We review a district court’s grant of
summary judgment de novo.”
Peruta v. Cty. of San Diego
II
The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. In the Supreme Court’s seminal decision on Second Amendment rights, District of Columbia v. Heller , the Court articulated an individual right to bear arms but explained that this hоlding should not “be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws *7 forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” 554 U.S. at 626–27. The Court described these categories of regulation as “presumptively lawful” and noted that this list was not intended to be exhaustive. Id. at 627 n.26.
In accord with many of our sister circuits, “we have
discerned from
Heller
’s approach a two-step Second
Amendment inquiry.”
Jackson v. City & Cty. of S.F.
Here, Bauer contends that the challenged portion of the
DROS fee burdens conduct protected by the Second
Amendment because it applies to all firearm transfers, not
just those that would be considered “commercial sale” in the
ordinary sense. Cal. Penal Code §§ 27545, 28050, 28055(b).
Thus, Bauer argues that the DROS fee does not belong to the
category of “conditions and qualifications on the commercial
sale of arms” that
Heller
held to be presumptively lawful at
the first step of the inquiry.
See
10
B AUER V . B ECERRA
We need not decide this question because the challenged
portion of the DROS fee would survive heightened scrutiny
even if it implicates Second Amendment protections.
Therefore, for purposes of this analysis, we assume, without
deciding, that the challenged fee burdens conduct falling
within the scope of the Second Amendment.
See Silvester v.
Harris
, 843 F.3d 816, 826–27 (9th Cir. 2016) (assuming
without deciding that waiting period laws fall within the
scope of the Second Amendment at step one);
Fyock v.
Sunnyvale
,
III
If a law burdens conduct protected by the Second Amendment, as we assume, but do not decide that this one does, Heller mandates some level of heightened scrutiny. 554 U.S. at 628 & n.27. We conclude that intermediate scrutiny is the appropriate standard for analyzing the fee scheme challenged here, and we hold that the fee survives under this standard.
A
Because
Heller
did not specify a particular level of
scrutiny for all Second Amendment challenges, courts
determine the appropriate level by considering “(1) how close
the challenged law comes to the core of the Second
Amendment right, and (2) the severity of the law’s burden on
that right.”
Silvester
, 843 F.3d at 821 (citing
Jackson
Here, Bauer argues that the core right to possess and use а firearm in the home includes a corresponding right to purchase a firearm, and that the core right is therefore burdened by the DROS fee. But even if we assume that the right to possess a firearm includes the right to purchase one, the burden on that right is exceedingly minimal here.
Bauer has neither alleged nor argued that the $19 DROS
fee—let alone the smaller, $5 challenged portion of the
fee—has any impact on the plaintiffs’ actual ability to obtain
and possess a firearm. Although Bauer suggests that a
hypothetical $1 million fee could effectively eliminate the
general public’s ability to acquire a firearm, that extreme
comparison underscores the minimal nature of the burden
here. Indeed, in considering a fee much larger than the one
here, the Second Circuit suggested in
Kwong v. Bloomberg
that even a $340 licensing fee might not be a “substantial
burden” on Second Amendment rights.”
This approach is consistent with our past cases analyzing
the appropriate level of scrutiny under the second step of
Heller
, as we have repeatedly applied intermediate scrutiny
in cases where we have reached this step.
Silvester
, 843 F.3d
at 823 (applying intermediate scrutiny to a law mandating
*10
ten-day waiting periods for the purchase of firearms);
Fyock
,
779 F.3d at 999 (applying intermediate scrutiny to a law
prohibiting the possession of large-capacity magazines);
Jackson
,
Similarly, our sister circuits have overwhelmingly applied
intermediate scrutiny when analyzing Second Amendment
challenges under
Heller
’s second step.
See, e.g.
,
Kwong
,
876 (4th Cir. 2013) (law requiring a “good and substantial
reason” for issuance of a handgun permit);
Kachalsky v. Cty.
of Westchester
, 701 F.3d 81, 96–97 (2d Cir. 2012) (law
requiring a showing of “proper cause” to obtain a concealed
carry permit);
Heller v. Dist. of Columbia (Heller II)
,
670 F.3d 1244, 1256–58, 1261–62 (D.C. Cir. 2011) (laws
imposing registration requirements on all firearms and
banning assault weapons and large-capacity magazines);
Reese
, 627 F.3d at 802 (law prohibiting possession of all
firearms while subject to a domestic protection order);
Marzzarella
, 614 F.3d at 97 (law effeсtively prohibiting
possession of firearms with obliterated serial numbers);
United States v. Skoien
,
B
Our intermediate scrutiny test under the Second
Amendment requires that “(1) the gоvernment’s stated
objective . . . be significant, substantial, or important; and
(2) there . . . be a ‘reasonable fit’ between the challenged
regulation and the asserted objective.”
Silvester
,
The government’s stated objective for using a portion of the DROS fee to fund APPS, as expressed in the legislative findings in Senate Bill 819, is to target “[t]he illegal possession of . . . firearms” because illegal possession “presents a substantial danger to public safety.” 2011 Cal. Stat. 5735, § 1(d). Thus, the State asserts that its goal is “improving public safety by disarming individuals who are prohibited from owning or possessing firearms.” The legislative findings in Senate Bill 819 estimated that there were more than 18,000 armed prohibited persons in California at the time the law was passed, and the APPS program aims to target these violations. 2011 Cal. Stat. 5735, § 1(d).
As we have previously stated, “‘[i]t is self-evident’ that
public safety is an important government interest,” and
reducing “gun-related injury and death” promotes public
safety.
Jackson
,
Under the second prong of the intermediate scrutiny test, we require a “reasonable fit” between the government’s stated objective and its means of achieving that goal, and we “have
B AUER V . B ECERRA
15
said that ‘intermediate scrutiny does not require the least
restrictive means of furthering a given end.’”
Id.
at 827
(quoting
Jackson
,
Given the State’s important interest in promoting public safety and disarming prohibited persons under the first prong of the test, there is a “reasonable fit” between these important objectives and the challenged portion of the DROS fee. As we have noted, the statute provides that the DROS fee is intended to fund “costs associated with funding Department of Justice firearms-related regulatory аnd enforcement activities related to the sale, purchase, possession, loan, or transfer of firearms.” Cal. Penal Code § 28225(b)(11). Because the APPS program involves the investigation of illegally armed individuals and enforcement of firearms laws, there is certainly a fit between the legislative objective and the use of the DROS fee. Indeed, the unlawful firearm possession targeted by APPS is the direct result of certain individuals’ prior acquisition of a firearm through a DROS- governed transaction.
The legislative history supports this conclusion. The California Senate Committee considering the legislation stated in its report that it “would clarify that [the Department] is permitted to use DROS funds to pay for its efforts to retrieve unlawfully possessed firearms and prosecute individuals who possess those firearms despite being prohibited by law from doing so.” Sen. Comm. on Public Safety, Analysis of S.B. 819, 2011–12 Reg. Sess., at 11 (April 26, 2011). In addition, the legislative history indicates that, like the use of the DROS fee to fund a background check at the time of purchase, the use of the DROS fee to fund APPS simply allows ongоing enforcement when some of “those same individuals” later become prohibited from possessing a firearm. Assem. Comm. on Appropriations, Analysis of S.B. 819, 2011–2012 Reg. Sess., at 2 (July 6, 2011).
Moreover, we have emphasized that “‘intermediate
*13
scrutiny does not require the least restrictive means of
furthering a given end.’”
Silvester
,
C
Bauer argues that traditional Second Amendment
intermediate scrutiny should not apply because this case
involves a fee. He urges us to apply the line of “fee
jurisprudence” that was developed by the Supreme Court in
the First Amendment context to assess the constitutionality of
fees imposed on the exercise of constitutional rights. We
have recognized that there are other elements of Second
Amendment jurisprudence that have First Amendment
analogies.
See Jackson
,
Under First Amendment fee jurisprudence, the two
seminal cases on the constitutionality of fees are
Cox v. New
Hampshire
,
Attempting to apply this precedent in the Second Amendment context, Bauer argues that the APPS program is The fact that the State did not contest which form of intermediate scrutiny applied before the district court, but only raised that question on appeal, also cautions against us deciding an issue not fully developed in the district court.
not sufficiently related to the DROS fee because targeting illegal firearm possession via APPS is not closely related to the legal acquisition of firearms governed by the DROS requirements. Because he defines the regulated activity as being limited to firearm acquisition, Bauer contends that the cost of APPS cannot be considered an “expense[] of policing the activities in question.” Murdock , 319 U.S. at 113–14. However, this argument is undermined by Bauer’s own contention, under the first step of Heller , that the DROS fee burdens the Second Amendment right of possession precisely because it governs essentially all means of acquiring a firearm in California. See Cal. Penal Code §§ 27545, 28050, 28055(b). In light of this reality, DROS-regulated firearm transactions are in fact a close proxy for subsequent firearm possession, and targeting illegal possession under APPS is closely related to the DROS fee.
Moreover, despite Bauer’s emphasis on the fact that only
a small subset of DROS fee payers will later become illegal
possessors targeted by APPS, we note that essentially
everyone targeted by the APPS program was a DROS fee
payer at the time he or she acquired a firearm.
Cf. Silvester
Because a tax on a constitutional right may not be used to
raise general revenue,
Cox
,
Los Angeles
,
20 B AUER V . B ECERRA Davidson Cty. , 274 F.3d 377, 395–96 (6th Cir. 2001) (accounting for ongoing enforcement costs in upholding a licensing fee on nude dancing establishments).
Moreover, where the initial fee enаbles an activity that
has ongoing impacts, such as the purchase of firearms or the
licensing of an adult entertainment establishment as in
Deja
Vu
, there is an even stronger argument for including ongoing
enforcement as part of the costs of “policing the activities in
question.”
Murdock
,
D
In sum, the use of the DROS fee to fund APPS survives intermediate scrutiny because the government has demonstrated an important public safety interest in this statutory scheme, and there is a reasonablе fit between the government’s interest and the means it has chosen to achieve those ends. [8] Accordingly, the district court did not err in In reaching our conclusion, we need not, and do not, decide what the result would be if the DROS fee were used to enforce firearm possession laws in general through the APPS program, or otherwise, rather than concluding that the use of the DROS fee to fund APPS, through California Penal Code § 28225, does not violate the Constitution.
IV
Where a law poses a minimal burden on core Second Amendment rights in furtheranсe of an important government *17 interest, the federal courts have universally upheld it. We do the same here. In doing so, we need not—and do not— decide whether the fee implicates the Second Amendment, nor do we decide whether First Amendment fee jurisprudence should be applied in analyzing whether the provision passes the intermediate scrutiny test. Because, even assuming the Second Amendment applies in this context, California’s use of the DROS fee to fund the APPS program survives intermediate scrutiny under either test, we affirm the district court’s grant of summary judgment in favor of the State.
AFFIRMED. firearm possession laws as they apply to those who legally acquired a firearm by paying the fee.