FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MATTHEW JONES; THOMAS FURRH; No. 20-56174
PWGG, L.P., DBA Poway Weapons
and Gear and PWG Range; NORTH D.C. No.
COUNTY SHOOTING CENTER, INC.; 3:19-cv-01226-
BEEBE FAMILY ARMS AND L-AHG
MUNITIONS LLC, DBA BFAM and
Beebe Family Arms and Munitions;
FIREARMS POLICY COALITION, INC.; OPINION
FIREARMS POLICY FOUNDATION; THE
CALGUNS FOUNDATION; SECOND
AMENDMENT FOUNDATION; KYLE
YAMAMOTO,
Plaintiffs-Appellants,
v.
ROB BONTA, * in his official capacity
as Attorney General of the State of
California; MARTIN HORAN, in his
official capacity as Director of the
Department of Justice Bureau of
Firearms; DOES, 1–20,
Defendants-Appellees.
*
Rob Bonta has been substituted for his predecessor, Xavier
Becerra, as California Attorney General under Fed. R. App. P. 43(c)(2).
2 JONES V. BONTA
Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, District Judge, Presiding
Argued and Submitted May 12, 2021
Pasadena, California
Filed May 11, 2022
Before: Ryan D. Nelson and Kenneth K. Lee, Circuit
Judges, and Sidney H. Stein, ** District Judge.
Opinion by Judge R. Nelson;
Concurrence by Judge Lee;
Dissent by Judge Stein
**
The Honorable Sidney H. Stein, United States District Judge for
the Southern District of New York, sitting by designation.
JONES V. BONTA 3
SUMMARY ***
Civil Rights
The panel affirmed in part and reversed in part the
district court’s denial of plaintiffs’ motion for a preliminary
injunction seeking to enjoin, under the Second Amendment,
California’s bans on the sale of long guns and semiautomatic
centerfire rifles to anyone under the age of 21.
The panel held 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 historical record showed that the Second
Amendment protects the right of young adults to keep and
bear arms, which includes the right to purchase them.
Therefore, both California laws burdened conduct within the
scope of the Second Amendment.
Second, the district court properly applied intermediate
scrutiny to the long gun hunting license regulation, which
permits a young adult to buy a long gun if he gets a hunting
license. This requirement does not prevent young adults
from having any firearms or from using them in any
particular way, and therefore did not impose a significant
burden on the Second Amendment right to keep and bear
arms. The district court did not abuse its discretion in
finding that the regulation would survive intermediate
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
4 JONES V. BONTA
scrutiny, as defendants would likely be able to show that
California’s long gun regulation was a reasonable fit for the
stated objectives of increasing public safety through sensible
firearm control.
Third, the district court erred by applying intermediate
scrutiny, rather than strict scrutiny, to the semiautomatic
centerfire rifle ban. Strict scrutiny applied because the law
on its face banned almost all young adults from having
semiautomatic rifles. The main difference between this ban
and the long gun regulation was the exceptions. The long
gun regulation has a readily available exception, at least on
its face—young adults can get hunting licenses. The
semiautomatic rifle ban has no such exception: the only
young adults who can buy semiautomatic rifles are some law
enforcement officers and active-duty military
servicemembers. The panel held that California’s ban was a
severe burden on the core Second Amendment right of self-
defense in the home. Even applying intermediate scrutiny,
the ban, prohibiting commerce in semiautomatic rifles for all
young adults except those in the police or military, regulated
more conduct than was necessary to achieve its goal and
therefore failed the reasonable fit test.
Finally, the panel held that the district court also abused
its discretion in finding that there was no irreparable harm
and that the public interest favored declining to issue an
injunction.
Concurring, Judge Lee joined the opinion in full but
wrote separately to highlight how California’s legal position
has no logical stopping point and would ultimately erode
fundamental rights enumerated in the Constitution. If
California can deny the Second Amendment right to young
adults based on their group’s disproportionate involvement
JONES V. BONTA 5
in violent crimes, then the government can deny that right—
as well as other rights—to other groups. Judge Lee wrote
that “we cannot jettison our constitutional rights, even if the
goal behind a law is laudable.”
Dissenting in part, Judge Stein stated that while the
majority was correct to apply intermediate scrutiny to the
long gun regulation to affirm the district court’s denial of the
preliminary injunction, it erred in applying strict scrutiny to
and reversing the district court with respect to the
semiautomatic centerfire rifle regulation. On that basis,
Judge Stein concurred with the majority’s holding and
reasoning with respect to the long gun regulation and
dissented from its holding and reasoning with respect to the
semiautomatic rifle regulation. Judge Stein stated that by
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 failed to conduct a legal analysis
that comported with the corpus of precedent within this
Circuit and elsewhere. Not only in Judge Stein’s view was
it error for the majority to apply strict scrutiny to the
semiautomatic rifle regulation, but its alternative holding
that the regulation failed under intermediate scrutiny
suffered from a faulty assessment of whether the regulation
was a “reasonable fit” for California’s public policy
objectives.
6 JONES V. BONTA
COUNSEL
Haley N. Proctor (argued), David H. Thompson, Peter A.
Patterson, and John D. Ohlendorf, Cooper and Kirk PLLC,
Washington, D.C.; John W. Dillon, Dillon Law Group APC,
Carlsbad, California; for Plaintiffs-Appellants.
Jennifer E. Rosenberg (argued) and John D. Echeverria,
Deputy Attorneys General; Mark R. Beckington,
Supervising Deputy Attorney General; Thomas S. Patterson,
Senior Assistant Attorney General; Rob Bonta, Attorney
General; Office of the Attorney General, Los Angeles,
California; Defendants-Appellees.
Sarah A. Hunger, Deputy Solicitor General; Jane Elinor
Notz, Solicitor General; Kwame Raoul, Attorney General;
Office of the Attorney General, Chicago, Illinois; William
Tong, Attorney General, Hartford, Connecticut; Kathleen
Jennings, Attorney General, Wilmington, Delaware; Karl A.
Racine, Attorney General, Washington, D.C.; Clare E.
Connors, Attorney General, Honolulu, Hawaii; Brian E.
Frosh, Attorney General, Baltimore, Maryland; Maura
Healey, Attorney General, Boston, Massachusetts; Dana
Nessel, Attorney General, Lansing, Michigan; Keith Ellison,
Attorney General, St. Paul, Minnesota; Gurbir S. Grewal,
Attorney General, Trenton, New Jersey; Hector Balderas,
Attorney General, Santa Fe, New Mexico; Letitia James,
Attorney General, Albany, New York; Ellen F. Rosenblum,
Attorney General, Salem, Oregon; Josh Shapiro, Attorney
General, Harrisburg, Pennsylvania; Peter F. Neronha,
Attorney General, Providence, Rhode Island; Thomas J.
Donovan Jr., Attorney General, Montpelier, Vermont; Mark
R. Herring, Attorney General, Richmond, Virginia; Robert
W. Ferguson, Attorney General, Olympia, Washington; for
Amici Curiae Illinois, Connecticut, Delaware, District of
JONES V. BONTA 7
Columbia, Hawaii, Maryland, Massachusetts, Michigan,
Minnesota, New Jersey, New Mexico, New York, Oregon,
Pennsylvania, Rhode Island, Vermont, Virginia, and
Washington.
Hannah Shearer, Giffords Law Center to Prevent Gun
Violence, San Francisco, California; J. Adam Skaggs,
Giffords Law Center to Prevent Gun Violence, New York,
New York; Robert A. Sacks and Leonid Traps, Sullivan &
Cromwell LLP, New York, New York; Angela N. Ellis,
Jackson Froliklong, Rachel H. VanGelder, and Madeline B.
Jenks, Sullivan & Cromwell LLP, Washington, D.C.; for
Amici Curiae Giffords Law Center to Prevent Gun Violence,
Brady, and American Federation of Teachers.
Glenn Rothner, Rothner Segall & Greenstone, Pasadena,
California, for Amicus Curiae California Federation of
Teachers.
Lisa Kobialka, Kramer Levin Naftalis & Frankel LLP,
Menlo Park, California; Darren A. LaVerne, Karen S.
Kennedy, and Daniel M. Ketani, Kramer Levin Naftalis &
Frankel LLP, New York, New York; Janet Carter, William
J. Taylor Jr., and Lisa M. Ebersole, Everytown Law, New
York, New York; for Amicus Curiae Everytown for Gun
Safety.
Jason Walta, National Education Association, Washington,
D.C., for Amicus Curiae National Education Association.
Neal Goldfarb, Washington, D.C., pro se Amicus Curiae.
8 JONES V. BONTA
OPINION
R. NELSON, Circuit Judge:
America would not exist without the heroism of the
young adults who fought and died in our revolutionary army.
Today we reaffirm that our Constitution still protects the
right that enabled their sacrifice: the right of young adults to
keep and bear arms.
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
JONES V. BONTA 9
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.
I
A
California regulates the acquisition, possession, and
ownership of firearms with a multifaceted scheme. Peruta
v. County of San Diego, 824 F.3d 919, 925 (9th Cir. 2016)
(en banc). To start, some general requirements apply to
everyone, not just young adults. 1 First, except for some
intrafamily transfers and loans, 2 the state requires that all
transfers of firearms happen at a licensed firearms dealer.
Cal. Penal Code §§ 27545, 28050. And second, the
purchaser must have a valid firearm safety certificate
(“FSC”). Id. §§ 31615, 27540(e). Exempt from the FSC
requirement are people with hunting licenses, active and
reserve peace officers, federal officers or law enforcement
agents, and active or honorably retired members of the
armed forces. Id. § 31700(a)–(c).
1
We use “young adults” to refer to people who are 18 years old or
older but not yet 21 years old.
2
Loans and intrafamily transfers are severely restrictive. First,
intrafamily transfers are only allowed from parents or grandparents. Cal.
Penal Code §§ 27875, 16720. But strawman purchases are not allowed.
Id. § 27515. Then limited loans are allowed: (1) loans for up to thirty
days from a larger set of family members (spouses, domestic partners,
parents, children, siblings, or grandparents), id. § 27880; (2) loans for up
to three days, if the firearm is used in the presence of the loaner, id.
§ 27885; (3) loans for any amount of time, if the firearm stays only at the
loaner’s residence, id. § 27881; and (4) loans to licensed hunters for the
hunting season, id. § 27950.
10 JONES V. BONTA
California also regulates young adults’ commerce in
firearms. Specifically, after first banning only the sale of
handguns, California then prohibited the sale to young adults
of almost any kind of firearm. The only exception was for
sales of long guns to young adults who (1) have a state
hunting license, (2) are peace officers, active federal
officers, or active federal law enforcement agents and are
allowed to carry firearms for their work, or (3) are active or
honorably discharged members of the military. 2017
California Senate Bill No. 1100, California 2017–2018
Regular Session. 3
Several young adults, gun shops, and advocacy groups
sued, asking the district court to enjoin the long gun
regulation under the Second and Fourteenth Amendments.
Then, while the suit was pending, California again amended
the law, banning sales of semiautomatic centerfire rifles 4 to
young adults, and excepting only law enforcement officers
and active-duty military, but not hunting license holders. In
response, Plaintiffs withdrew their motion for a preliminary
injunction, amended their complaint to challenge the new
ban, and again sought a preliminary injunction, now of both
the long gun regulation and the semiautomatic rifle ban.
3
Transfers of handguns to young adults are also banned, except for
antique handguns and intrafamily transfers. Cal. Penal Code § 27505(a).
4
A rifle is a kind of long gun. A semiautomatic rifle fires a single
bullet each time the trigger is pulled and does not require the user to
manually cycle between shots. And a centerfire rifle uses centerfire
ammunition, in which the primer that ignites the powder is in the center
of the bullet, rather than at the rim. Most rifles are centerfire rifles, and
thus for ease of reference, we refer just to semiautomatic rifles.
JONES V. BONTA 11
B
The district court declined to preliminarily enjoin the
laws, holding that Plaintiffs had not shown that they were
likely to succeed on the merits, both because the laws did not
burden Second Amendment rights and would likely survive
intermediate scrutiny. The district court also held that
Plaintiffs had not shown irreparable harm and that the
balance of interests did not favor enjoining the laws.
First, the district court observed that other courts had
held that similar laws do not burden Second Amendment
rights at all. Jones v. Becerra, 498 F. Supp. 3d 1317, 1326–
27 (S.D. Cal. 2020). 5 The district court noted that these
courts found that similar laws were “longstanding, do not
burden the Second Amendment, and are therefore
presumptively constitutional.” Id. at 1327. The district court
then reasoned that “[i]ndividuals under the age of 21 were
considered minors or ‘infants’ for most of our country’s
history without the rights afforded adults” and therefore they
are among those “believed unfit of responsible firearm
possession and use.” Id. at 1327. It did address the tradition
of militia members who were under 21 years old, but
reasoned this tradition actually supported the
constitutionality of the laws. Id. In the district court’s view,
“[m]ilitia members were required to possess their own
5
The district court relied on National Rifle Association of America,
Inc. v. Bureau of Alcohol and Tobacco, Firearms, and Explosives, 700
F.3d 185, 196 (5th Cir. 2012) (“NRA I”); Hirschfeld v. Bureau of
Alcohol, Tobacco, Firearms and Explosives, 417 F. Supp. 3d 747, 755
(W.D. Va. 2019); and Mitchell v. Atkins, 483 F. Supp. 3d 985 (W.D.
Wash. 2020). The district court’s order in Hirschfeld was reversed by a
divided panel, 5 F.4th 407 (4th Cir. 2021), but then the plaintiffs turned
18, the court found the case moot, and vacated the opinion, 14 F.4th 322
(4th Cir. 2021).
12 JONES V. BONTA
firearms if they complied with accountability and
maintenance regulations” and thus the “strict rules
surrounding militia duty” show that the “right to firearm
possession came with obligations to ensure public safety.”
Id.
Because of other courts’ holdings, the longstanding
history of similar regulations, and its militia analysis, the
district court reasoned that California’s laws “do[] not
burden the Second Amendment.” Id. The district court thus
held that Plaintiffs were not likely to succeed on the merits.
Second, because it found no burden on Second
Amendment rights, the district court did not need to apply
any tier of scrutiny. Still, “in an abundance of caution,” the
district court also determined that intermediate scrutiny
applied and that the laws likely survived it. Id.
In determining whether to apply strict or intermediate
scrutiny, the district court reasoned that the laws neither
implicated the core Second Amendment right nor severely
burdened that right. Id. at 1328 (citing Pena v. Lindley, 898
F.3d 969, 977 (9th Cir. 2018)). The district court bolstered
its conclusion by noting that young adults could “receive
otherwise prohibited firearms via transfer from immediate
family.” Id. Because the laws were not, in the district
court’s view, complete bans, it held that only intermediate
scrutiny would be required. Id.
The district court then held that the laws likely would
satisfy intermediate scrutiny. The court noted first that
California’s goal of improving public safety was a
significant objective. Id. The court then held that the laws
“provide[] a reasonable fit” to those goals because “it
remains commonly understood that Young Adults may
require additional safeguards to ensure proper training and
JONES V. BONTA 13
maintenance of firearms.” Id. at 1330. Thus, Plaintiffs still
were not likely to succeed on the merits, even under
intermediate scrutiny.
Third, the district court held that Plaintiffs failed to show
irreparable harm. Id. at 1330–32. The district court
observed that, after filing their amended complaint,
Plaintiffs waited two months before moving for a
preliminary injunction. It reasoned that this delay
undermined finding irreparable harm. Id. at 1331. “More
importantly,” young adults could still get firearms, either
under an exception, through a transfer from family, or by
using them at shooting ranges. Id.
Finally, the district court also held that the balance of
interests weighed against enjoining the laws, reasoning that
“[t]he potential harm of enjoining a duly-enacted law
designed to protect public safety outweighs Young Adults’
inability to secure the firearm of their choice without proper
training.” Id. at 1332.
II
A
The district court had jurisdiction under 28 U.S.C.
§ 1331. We have jurisdiction to review the district court’s
interlocutory order declining to issue an injunction under
28 U.S.C. § 1292(a)(1).
Because we “have an independent obligation to ensure
that [we] do not exceed the scope of [our] jurisdiction,”
Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428
(2011), we must ensure that the case is not moot, even if the
parties do not dispute it.
14 JONES V. BONTA
A case is moot when there is “no actual or live
controversy.” Bishop Paiute Tribe v. Inyo County, 863 F.3d
1144, 1155 (9th Cir. 2017) (citing Foster v. Carson,
347 F.3d 742, 745 (9th Cir. 2003)). “If there is no longer a
possibility that an appellant can obtain relief for his claim,
that claim is moot and must be dismissed for lack of
jurisdiction.” Id. (internal quotation marks omitted).
Defendants argue that the individual plaintiffs’ claims
are moot because they have turned 21, but they concede that
we have jurisdiction anyway. We agree that we have
jurisdiction. We need not reach whether the individual
plaintiffs’ claims are moot because the organizational
plaintiffs’ claims are not. Cf. Laub v. U.S. Dep’t of Interior,
342 F.3d 1080, 1086 (9th Cir. 2003) (where “one plaintiff
ha[s] standing to bring the suit, the court need not consider
the standing of the other plaintiffs”). The advocacy groups
sued on behalf of their young adult members, and some of
those members are still under 21. Similarly, the firearm
dealer plaintiffs sued because they have had to forego selling
firearms to young adults and offering firearm classes for
them. The case is not moot as to them either because they
still cannot sell firearms to young adults or admit them to
their classes.
B
Although we review the denial “of a preliminary
injunction for an abuse of discretion” and “factual findings
for clear error,” we also review “the underlying legal
conclusions de novo.” Washington v. U.S. Dep’t of State,
996 F.3d 552, 560 (9th Cir. 2021). If “the district court relied
on an erroneous legal premise,” then it abused its discretion.
Fyock v. Sunnyvale, 779 F.3d 991, 995 (9th Cir. 2015).
JONES V. BONTA 15
The district court’s choice of a tier of scrutiny is a legal
question that we review de novo. See Joelner v. Vill. of
Wash. Park, Ill., 508 F.3d 427, 431 (7th Cir. 2007), as
amended on denial of reh’g (Apr. 3, 2008). Its application
of that tier of scrutiny is reviewed for abuse of discretion.
Fyock, 779 F.3d at 998.
At the preliminary injunction stage, our “review of the
district court’s findings” is “restricted to the limited record
available to the district court when it granted or denied the
motion.” Sports Form, Inc. v. United Press Int’l, Inc.,
686 F.2d 750, 753 (9th Cir. 1982). Ultimately, because
denying a preliminary injunction lies within a district court’s
discretion, we may reverse only when it abused its discretion
by relying on an erroneous legal premise or clearly
erroneous finding of fact. See, e.g., Calvary Chapel Dayton
Valley v. Sisolak, 982 F.3d 1228, 1231 (9th Cir. 2020).
C
“A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his
favor, and that an injunction is in the public interest.” Winter
v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). When
the government is a party, the balance of equities factor and
the public interest factor merge. Drakes Bay Oyster Co. v.
Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014). “Under our
‘sliding scale’ approach, a stronger showing of one element
may offset a weaker showing of another, as long as plaintiffs
‘establish that irreparable harm is likely.’” Doe v. Kelly,
878 F.3d 710, 719 (9th Cir. 2017) (quoting All. for the Wild
Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011)).
16 JONES V. BONTA
III
“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. The Second
Amendment “protects a personal right to keep and bear arms
for lawful purposes, most notably for self-defense within the
home.” McDonald v. City of Chicago, 561 U.S. 742, 780
(2010). This right is “applicable to the States” through the
Due Process Clause of the Fourteenth Amendment. Id. at
750.
The “Second Amendment right is exercised individually
and belongs to all Americans.” District of Columbia v.
Heller, 554 U.S. 570, 581 (2008). The “people” protected
by the Second Amendment “refers to a class of persons who
are part of a national community.” Id. (quoting United States
v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990)).
On the merits, for challenges to firearm laws under the
Second and Fourteenth Amendments, we apply a “two-step
framework.” Young v. Hawaii, 992 F.3d 765, 783 (9th Cir.
2021) (en banc). First, we ask “whether the challenged law
burdens conduct protected by the Second Amendment.”
Fyock, 779 F.3d at 996 (internal quotations omitted). In this
step, we “explore the amendment’s reach based on a
historical understanding of the scope of the Second
Amendment right.” Mai v. United States, 952 F.3d 1106,
1114 (9th Cir. 2020) (quoting United States v. Torres,
911 F.3d 1253, 1258 (9th Cir. 2019)). As we conduct this
historical analysis, we must remain “well aware that we are
jurists and not historians.” Young, 992 F.3d at 785. 6 Still, if
6
As part of this historical analysis, one tool to consider is corpus
linguistics. Corpus linguistics is “an analysis of how particular
JONES V. BONTA 17
the challenged law regulates conduct historically outside the
scope of the Second Amendment, then it does not burden
Second Amendment rights. Mai, 952 F.3d at 1114. But if
the challenged law “falls within the historical scope of the
Second Amendment, we must then proceed to the second
step of the Second Amendment inquiry to determine the
appropriate level of scrutiny.” Jackson v. City & County of
San Francisco, 746 F.3d 953, 960 (9th Cir. 2014).
In our historical analysis, the Framers’ understanding of
the Second Amendment at and around the time of ratification
has special significance. Laws from that time are
particularly important because they are “contemporaneous
legislative exposition[s] of the Constitution” that took place
“when the founders of our government and framers of our
Constitution were actively participating in public affairs.”
Myers v. United States, 272 U.S. 52, 175 (1926). If they
were also “acquiesced in for a long term of years,” these
legislative expositions “fix[] the construction” that we must
give to the Constitution’s parameters. Id. Because the
militias originated in the states, see Heller, 554 U.S. at 596,
combinations of words are used in a vast database of English prose.”
Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1174 (Alito, J., concurring)
(citing Lee & Mouritsen, Judging Ordinary Meaning, 127 Yale L. J. 788
(2018)). It “draws on the common knowledge of the lay person by
showing us the ordinary uses of words in our common language.”
Wilson v. Safelite Grp., Inc., 930 F.3d 429, 439 (6th Cir. 2019) (Thapar,
J., concurring in part and concurring in the judgment). Corpus linguistics
“is a powerful tool for discerning how the public would have understood
a statute’s text at the time it was enacted,” and “[c]ourts should consider
adding this tool to their belts.” Id. at 439–40.
We asked the parties to file supplemental briefing addressing in part
the applicability of corpus linguistics to this case. We thank the parties
for their hard work. Because neither of them asks us to apply corpus
linguistics here, we decline to consider it further.
18 JONES V. BONTA
we also consider colonial and state laws. Since the Second
Amendment was incorporated against the states through the
Fourteenth Amendment, our historical analysis also must
consider how the right to keep and bear arms was understood
in 1868, when that amendment was ratified. See McDonald,
561 U.S. 742, 770–78 (analyzing Reconstruction-era
history).
After the historical analysis, if we conclude that the law
at issue burdens Second Amendment rights, then we proceed
to the second step. In this step, we determine which level of
scrutiny to apply and must decide both “how close [each]
law comes to the core of the Second Amendment right” and
“the severity of [each] law’s burden on that right.” Mai,
952 F.3d at 1115. “Strict scrutiny applies only to laws that
both implicate a core Second Amendment right and place a
substantial burden on that right.” Id. (citing Torres, 911 F.3d
at 1262). And “[i]n weighing the severity of the burden, we
are guided by a longstanding distinction between laws that
regulate the manner in which individuals may exercise their
Second Amendment right, and laws that amount to a total
prohibition of the right.” Pena, 898 F.3d at 977 (citing
United States v. Chovan, 735 F.3d 1127, 1138 (9th Cir.
2013)). Laws that regulate how individuals can exercise the
right are less severe; laws that amount to a total prohibition
of the right are more severe.
To withstand intermediate scrutiny, first, “the
government’s stated objective [must] be significant,
substantial, or important,” and second, there must be “a
reasonable fit between the challenged regulation and the
asserted objective.” Chovan, 735 F.3d at 1139. But to satisfy
strict scrutiny, the law must be “justified by a compelling
government interest and [be] narrowly drawn to serve that
JONES V. BONTA 19
interest.” Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 799
(2011).
We analyze the laws against this legal backdrop. First,
because the Second Amendment historically protected the
right of young adults to possess firearms, the district court
abused its discretion in finding no burden on Second
Amendment rights. As to the long gun regulation, the
district court properly applied intermediate scrutiny, and did
not abuse its discretion in finding the law likely to survive.
But semiautomatic rifles are nearly totally banned. Thus, the
district court erred in applying intermediate scrutiny, rather
than strict scrutiny. And even under intermediate scrutiny,
the district court erred in finding the law likely to survive.
Finally, the district court also abused its discretion in finding
that there was no irreparable harm and that the public interest
favored declining to issue an injunction.
IV
A
Before engaging with the historical record, we first
establish the parameters of our analysis. California regulates
young adults’ commerce in firearms, not their possession.
And we have avoided defining “the contours of the
commercial sales category because [we have] assumed the
Second Amendment applied and upheld the restriction under
the appropriate level of constitutional scrutiny.” Pena,
898 F.3d at 976 (collecting cases). Still, even though this is
a commercial regulation, the district court’s historical
analysis focused not on the history of commercial
regulations specifically but on the history of young adults’
right to keep and bear arms generally. See Jones, 498 F.
Supp. 3d at 1325–29. The district court was asking the right
question.
20 JONES V. BONTA
“Commerce in firearms is a necessary prerequisite to
keeping and possessing arms for self-defense.” Teixeira v.
County of Alameda, 873 F.3d 670, 682 (9th Cir. 2017). We
have assumed without deciding that the “right to possess a
firearm includes the right to purchase one.” Bauer v.
Becerra, 858 F.3d 1216, 1222 (9th Cir. 2017). And we have
already applied a similar concept to other facets of the
Second Amendment. For example, “[t]he Second
Amendment protects ‘arms,’ ‘weapons,’ and ‘firearms’; it
does not explicitly protect ammunition.” Jackson, 746 F.3d
at 967. Still, because “without bullets, the right to bear arms
would be meaningless,” we held that “the right to possess
firearms for protection implies a corresponding right” to
obtain the bullets necessary to use them. Id. (citing Ezell v.
City of Chicago, 651 F.3d 684, 704 (7th Cir. 2011)).
Similarly, without the right to obtain arms, the right to
keep and bear arms would be meaningless. Cf. Jackson,
746 F.3d at 967 (right to obtain bullets). “There comes a
point . . . at which the regulation of action intimately and
unavoidably connected with [a right] is a regulation of [the
right] itself.” Luis v. United States, 136 S. Ct. 1083, 1097
(Thomas, J., concurring in the judgment) (quoting Hill v.
Colorado, 530 U.S. 703, 745 (2000) (Scalia, J.,
dissenting)). 7 For this reason, the right to keep and bear arms
includes the right to purchase them. And thus laws that
7
Because the Second Amendment is not a “second-class right,”
McDonald, 561 U.S. at 780, we must treat it the same as other rights. In
the context of a right to privacy, “a total prohibition against sale of
contraceptives . . . would intrude upon [the right to privacy] as harshly
as a direct ban.” Carey v. Population Servs., Int’l, 431 U.S. 678, 688
(1977). “Indeed, in practice, a prohibition against all sales, since more
easily and less offensively enforced, might have an even more
devastating effect upon” the exercise of constitutional rights. Id.
JONES V. BONTA 21
burden the ability to purchase arms burden Second
Amendment rights.
B
Finally, before we dive into the history, we pause to clear
up two last points. First, because the long gun regulation and
the semiautomatic rifle ban regulate different categories of
guns and have different exceptions, we analyze them
separately. And second, the Second Amendment does not
protect the right to carry “dangerous and unusual weapons.”
Heller, 554 U.S. at 627. But that doesn’t mean that weapons
can be banned just because they’re dangerous. Rather,
“dangerous and unusual weapons” is a kind of historical
term of art: Heller contrasted those arms with weapons “in
common use at the time.” Id. Thus “the relative
dangerousness of a weapon is irrelevant when the weapon
belongs to a class of arms commonly used for lawful
purposes.” Caetano v. Massachusetts, 577 U.S. 411, 418
(2016) (Alito, J., concurring). Here, the district court held
that “[b]oth long-guns and semi-automatic centerfire rifles
are commonly used by law abiding citizens for lawful
purposes such as hunting, target practice, and self-defense,”
and thus that they are not “dangerous and unusual weapons”
under Heller, 554 U.S. at 627. Jones, 498 F. Supp. 3d
at 1325. Similarly, semiautomatic weapons “traditionally
have been widely accepted as lawful possessions.” Staples
v. United States, 511 U.S. 600, 612 (1994). We agree: long
guns and semiautomatic rifles are not dangerous and unusual
weapons.
Having cleared these last preliminary hurdles, the
question now is, “based on a historical understanding of the
scope of the Second Amendment right,” whether the right of
young adults to bear arms is “conduct [that is] protected by
22 JONES V. BONTA
the Second Amendment.” Mai, 952 F.3d at 1114 (internal
citation omitted).
C
Our analysis of the historical record reveals several
points which inform our exploration of the amendment’s
reach. First, the tradition of young adults keeping and
bearing arms is deep-rooted in English law and custom.
Going back many centuries, able-bodied English men at
least fifteen years old were compelled to possess personal
arms and had to take part in both the militia and other
institutions that required them to keep and bear personal
arms. Second, the American colonists brought that tradition
across the Atlantic: the colonial militias almost always
included all men 18 and older, and other institutions
involving keeping and bearing arms made it to our shores,
too. Third, at the time of the founding, all states required
young adults to serve in the militia, and all states required
young adults to acquire and possess their own firearms. Just
after the founding, Congress established a federal militia,
which included young adults, and required them to acquire
and possess their own weapons. Fourth, both at the founding
and later, different states had different ages of majority, and
the age of majority also varied depending on the conduct at
issue. And finally, turning to the Reconstruction era, some
states passed laws that regulated minors’ access to firearms,
but most of them only regulated handguns, and only a few
banned all sales of firearms to minors. We explore each of
these points in turn.
1
The tradition of young adults keeping and bearing arms
is deep-rooted in English law and custom. As far back as
medieval times, able-bodied men aged fifteen and older were
JONES V. BONTA 23
compelled to possess personal arms and had a duty, when
asked, to use those personal arms to maintain the king’s
peace and protect their communities and property. 8 “[T]he
militia from its obscure origin in Saxon times has been
composed of all subjects and citizens capable of bearing
arms, regardless of age or parental authority.” 9
And the militia was not the only institution imposing an
obligation to acquire and possess arms: “[u]nder English law
originating long before the Norman Conquest of 1066, all
able-bodied men were obliged to join in the hutesium et
clamor (hue and cry) to pursue fleeing criminals.” 10 More
generally, sheriffs, coroners, and magistrates could
“summon all able-bodied males to assist in keeping the
peace,” 11 and the traditional minimum age for these law-
enforcement duties was typically 15 or 16 years old. 12 For
example, at common law, the sheriff could command
citizens—already armed—to help suppress riots, arrest
criminals, and otherwise enforce civil processes. 13
8
See David B. Kopel, The Posse Comitatus and the Office of Sheriff:
Armed Citizens Summoned to the Aid of Law Enforcement, 104 J. Crim.
L. & Criminology 761, 788 (2014).
9
S.T. Ansell, Legal and Historical Aspects of the Militia, 26 Yale
L.J. 471, 473 (1917).
10
Kopel, supra n.8, at 771–72.
See David B. Kopel & Joseph G.S. Greenlee, The Second
11
Amendment Rights of Young Adults, 43 S. Ill. U. L. J. 495, 535 (2019).
12
Kopel, supra n.6, at 788, 790.
13
Id. at 792.
24 JONES V. BONTA
2
This deep-rooted tradition was brought across the
Atlantic by the American colonists. Heller confirmed that
the “militia” in colonial America consisted of “a subset of
‘the people’—those who were male, able bodied, and within
a certain age range.” 554 U.S. at 580. Before ratification,
when militias were solely defined by state law, most colonies
and states set the age for militia enlistment at 16. See
Appendix 1. Every colony passed, at some point, laws
identifying 18-year-olds as persons required to possess arms.
Id. Throughout the colonial period, the minimum age
fluctuated both below and above 18, and some colonies
passed laws temporarily increasing the minimum age
requirements for militia service to not include 18- to 20-
year-olds. Id.
Militia members had to show up for militia duty with
their own arms. 14 When militia members were “called for
service th[ey] . . . were expected to appear bearing arms
supplied by themselves and of the kind in common use at the
time.” United States v. Miller, 307 U.S. 174, 179 (1939).
Colonial governments even supplied arms to citizens too
poor to purchase them, requiring them, for example, to pay
back the government or work off their debt. 15
Militia membership also included some of what we
might now call regulation: “members of the militia were
required to meet regularly for weapons inspection and
registration.” Jones, 498 F. Supp. 3d at 1327 (citing Saul
14
See Joyce Lee Malcolm, To Keep and Bear Arms 139 (1994).
15
See Clayton E. Cramer, Colonial Firearm Regulation, 16 J.
Firearms & Pub. Pol’y 3, 24 (2004).
JONES V. BONTA 25
Cornell & Nathan DeDino, A Well Regulated Right: The
Early America Origins of Gun Control, 73 Fordham L. Rev.
487, 509–11 (2004)).
Along with the militia, the colonists also brought over
the practice of posse comitatus, which again required
citizens to have their own arms. 16 “Prior to the advent of
centralized police forces,” posse comitatus allowed “sheriffs
and others [to] compel[] citizens to serve in the name of the
state to execute arrests, level public nuisances, and keep the
peace, upon pain of fine and imprisonment.” 17 And in fact,
the colonists didn’t just continue the practice: posse
comitatus was “a pillar of local self-governance” and
“central to the broader project of protecting the public
good.” 18 Colonial governments even punished citizens who
would not join the posse. 19
3
The Second Amendment was ratified just a few months
before Congress passed the Militia Act of 1792. The Militia
Act required that young adults serve in the militia and
acquire and possess their own weapons. The Act “purported
to establish ‘an Uniform Militia throughout the United
States.’” Perpich v. Dep’t of Def., 496 U.S. 334, 341 (1990)
(internal citation omitted). The Act stated: “each and every
16
See Gautham Rao, The Federal Posse Comitatus Doctrine:
Slavery, Compulsion, and Statecraft in Mid-Nineteenth-Century
America, 26 Law & Hist. Rev. 1, 10 (2008) (internal citation omitted).
17
See id. at 2.
18
See id. at 10.
19
See id.
26 JONES V. BONTA
free able-bodied white male citizen of the respective states,
resident therein, who is or shall be of the age of eighteen
years, and under the age of forty-five years (except as is
herein after excepted) shall severally and respectively be
enrolled in the militia.” Act of May 8, 1792, 1 Stat. 271.
The Act also required each militia member to “provide
himself with a good musket or firelock . . . or with a good
rifle.” Id. The Militia Act thus “command[ed] that every
able-bodied male citizen between the ages of 18 and 45 be
enrolled [in the militia] and equip himself with appropriate
weaponry.” Perpich, 496 U.S. at 341.
Thus, “[a]t the time of the Second Amendment’s
passage, or shortly thereafter, the minimum age for militia
service in every state became eighteen.” Nat’l Rifle Ass’n of
Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms &
Explosives, 714 F.3d 334, 340–44 (5th Cir. 2013) (Jones, J.,
dissenting from denial of rehearing en banc) (“NRA II”). 20
Several states adopted the exact language from the Federal
Militia Act—obligating male persons 18 years old or older
to acquire and provide their own firearms. See Appendix 2.
20
Of course, the Fifth Circuit panel’s decision in NRA I is the law in
that circuit, not Judge Jones’s dissent. But as Judge Jones pointed out,
the panel “d[id] not do justice to Heller’s tailored approach toward
historical sources.” NRA II, 714 F.3d at 336 (dissenting from denial of
rehearing en banc). A bare majority of judges voted against rehearing
NRA I en banc, and they did not respond to Judge Jones’s dissent. Much
of Judge Jones’s historical analysis remains unrefuted.
Also, dissents from denial from rehearing en banc, such as the one
written by Judge Jones, can be persuasive judicial guideposts that
“address[] arguments raised for the first time during the en banc process,
correct[] misrepresentations, or highlight[] important facets of the case
that had yet to be discussed.” Martin v. City of Boise, 920 F.3d 584, 588
(9th Cir. 2019) (Berzon, J., concurring in the denial of rehearing en
banc).
JONES V. BONTA 27
Either at the same time as or right after the Act’s passage,
every state’s militia law obliged young adults to acquire and
possess firearms. Id. “[A]ny argument that 18- to 20-year
olds were not considered, at the time of the founding, to have
full rights regarding firearms” is “inconceivable.” NRA II,
714 F.3d at 342 (Jones, J., dissenting from denial of
rehearing en banc).
4
Turning now to the age of majority, the common law age
of majority at the time of the founding was 21 years old. “[I]t
was not until the 1970s that States enacted legislation to
lower the age of majority to 18.” NRA I, 700 F.3d at 201.
But the relevant age of majority also depended on the
capacity or activity. William Blackstone, Commentaries
463–64, 465 (1765). In other words, “the age of majority—
even at the Founding—lacks meaning without reference to a
particular right,” because, “[f]or example, a man could take
an oath at age 12, be capitally punished in a criminal case at
age 14, and serve as an executor at age 17.” Id. at 463.
5
Finally, we turn to the Reconstruction era. “By the
1850’s, the perceived threat that had prompted the inclusion
of the Second Amendment in the Bill of Rights—the fear
that the National Government would disarm the universal
militia—had largely faded as a popular concern, but the right
to keep and bear arms was highly valued for purposes of self-
defense.” McDonald, 561 U.S. at 770. And even once the
Fourteenth Amendment was ratified in 1868, it would of
course still be many years before the Supreme Court
incorporated the Second Amendment against the states.
McDonald, 561 U.S. at 791. So, like in the colonial and
founding eras, state laws were made against the backdrop of
28 JONES V. BONTA
“Second Amendment analogues in their respective [state]
constitutions.” NRA I, 700 F.3d at 202 n.16.
Within a few decades of Reconstruction, some states had
enacted laws regulating access to firearms by minors. Id.
at 202. We identify twenty-eight such state laws passed
between 1856 and 1897. See Appendix 3. Of these laws,
nineteen banned sales of only pistols to minors, and several
had exceptions for hunting or parental consent. Of the non-
pistol bans, three only applied to minors under fifteen years
old, only required parental consent, or both. Eight states
banned the sale of all firearms or deadly or dangerous
weapons to minors. Four of these statutes were passed
between 1881 and 1885.
There were also other Reconstruction era restrictions on
the right to acquire and bear arms. In particular, some
statutes were designed to disarm formerly enslaved people
and members of Native American tribes. See Drummond v.
Robinson Twp., 9 F.4th 217, 228 (3d Cir. 2021). Kentucky,
for example, restricted firearm access by African Americans.
1860 Ky. Acts 245 § 23.
For the most part, cases from this time did not address
the constitutionality of laws that regulated firearm
ownership by young adults. Two cases touch on related
issues, but neither addresses our question. One of them,
Coleman v. State, 32 Ala. 581 (1858), summarily affirmed a
lower court’s application of a state statute that prohibited
selling or lending a pistol to a minor. But the court did not
address the constitutionality of the law or say how old the
minor was. In the second case, State v. Callicutt, 69 Tenn.
714 (1878), on top of not saying how old the minor was, that
court also addressed concealed carry of dangerous weapons,
not the right to keep and bear arms more generally.
JONES V. BONTA 29
Professor Cooley’s famous treatise from 1868, relied on
by the Fifth Circuit panel in NRA I, also does not address the
question: its sole reference to the issue, citing Callicutt,
comes in a discussion of the states’ police powers, not of the
right to keep and bear arms. NRA I, 700 F.3d at 202–03
(citing Thomas M. Cooley, Treatise on Constitutional
Limitations 740 n.4 (5th ed. 1883)).
D
We must decide what these historical facts tell us about
the reach of the Second Amendment. Fyock, 779 F.3d
at 996. According to Plaintiffs, these facts show that the
Second Amendment protects young adults’ right to bear
arms, because young adults were expected to bear arms at
the time of the founding.
Defendants have two main responses, both of which the
district court adopted. First, it argues that the protected
historical right is not a full right to bear arms, but rather only
a right to bear arms that comes with some obligations of
militia service, at the very least the inspection requirement.
Jones, 498 F. Supp. 3d at 1327. In the district court’s
reading, because militia service came with some regulation,
the Second Amendment does not protect the right to keep
and bear arms, absent that regulation. Id.
Second, Defendants argue that the militia laws don’t
show anything about young adults’ right to bear arms,
because states in the 19th and 20th centuries also
criminalized transferring firearms to young people, and
because the age of majority during much of this country’s
history was 21 years old, not 18. Id. at 1326–27.
We agree with Plaintiffs: the historical record shows that
the Second Amendment protects young adults’ right to keep
30 JONES V. BONTA
and bear arms. We address Plaintiffs’ argument and then
each of Defendants’ counterarguments in turn.
1
“Sixteen was the minimum age for colonial militias
almost exclusively for 150 years before the Constitution”
and “[a]t the time of the Second Amendment’s passage, or
shortly thereafter, the minimum age for militia service in
every state became eighteen.” NRA II, 714 F.3d at 340
(Jones, J., dissenting from denial of rehearing en banc). This
historical militia tradition supports Plaintiffs’ reading.
Indeed, the historical evidence is so strong that even the
dissenting judge in the vacated Hirschfeld opinion found it
“persuasive,” did not dispute it, and simply assumed that the
law did burden Second Amendment rights, disagreeing only
at step two. 5 F.4th 407, 463 (4th Cir. 2021) (Wynn, J.,
dissenting), vacated as moot, 14 F.4th 322 (4th Cir. 2021).
The Second Amendment refers to the militia, and young
adults had to be in the militia and bring their own firearms.
This reference implies at least that young adults needed to
have their own firearms.
2
Defendants’ first argument to the contrary is
unpersuasive. Defendants agree that young adults needed to
have firearms for the militia and that the Second Amendment
refers to the militia. Even so, Defendants argue that the
Second Amendment only protects older adults’ right to keep
and bear arms, and not that of young adults. In other words,
young adults could keep and bear arms and had to serve in
the militia, but their ability to keep and bear arms was not
protected by the Second Amendment and could have been
abridged at any time without posing any burden on the right.
Because it strays from the most obvious historical
JONES V. BONTA 31
interpretation, this reading would need to be supported by
powerful evidence. It is not.
To begin, the district court’s main premise has already
been rejected. “[T]he Second Amendment conferred an
individual right to keep and bear arms.” Heller, 554 U.S.
at 595. The right is not conditioned on militia service. Id.
at 599–600. Indeed, that was the position of the dissenters
in Heller, and the Court rejected it. Id.
The district court’s position here is a variation on that
same, already-rejected argument. Rather than argue that all
citizens’ right to bear arms is conditioned entirely on militia
service, as the dissenters did in Heller, the district court held
that some citizens’ right to bear arms is conditioned on some
aspects of militia service. Jones, 498 F. Supp. 3d at 1327.
And there is another problem with the district court’s
analysis. At the first step, we just ask whether the
regulations burden Second Amendment rights at all. Few, if
any, of our constitutional rights are absolute, and asking if a
right is burdened is different from asking if a particular
burden is constitutional. That there were some firearm
regulations associated with militia membership could show
that some restrictions can be constitutional. But the
regulations themselves cannot dispositively show that there
is no burden.
The historical analysis controls the first step of the
inquiry but not the second. In applying a tier of scrutiny in
the second step, we focus not on the historical record (i.e.,
what kinds of regulations were present at the founding), but
on the gravity of the state’s interest (compelling/significant/
legitimate) and the degree of tailoring between the regulation
and that interest (narrow tailoring/reasonable fit/rational
relation). In finding no burden on Second Amendment
32 JONES V. BONTA
rights, the district court improperly relied on founding era
regulations.
3
We now turn to Defendants’ second argument, which
relies on laws passed in the 19th and 20th centuries.
First, Defendants fail to adequately address the
founding-era militia tradition: “19th-century sources may be
relevant to the extent they illuminate the Second
Amendment’s original meaning, but they cannot be used to
construe the Second Amendment in a way that is
inconsistent with that meaning.” NRA II, 714 F.3d at 339 n.5
(Jones, J., dissenting from denial of rehearing en banc).
Defendants argue, citing NRA I, that “a regulation can be
deemed ‘longstanding’ even if it cannot boast a precise
founding era analog.” 700 F.3d at 196. But even if we were
to agree, that would not save the argument. Here, there is
not just a vacuum at the founding era: instead, the founding
era evidence of militia membership undermines Defendants’
interpretation.
Even putting that aside, the Reconstruction era laws
themselves are not convincing. On top of the deeply
offensive nature of many of them, nineteen out of twenty-
eight banned only the sale of handguns, and California’s
handgun ban is not at issue. The Reconstruction era laws
show that long guns were far less regulated than handguns.
Ruling out other state laws that are similarly inapplicable
(laws only requiring parental consent, only banning
dangerous and deadly weapons, and only applying to
children under fifteen years old), we are left with only five
complete bans on sales of firearms to minors. Of these five
laws, three were passed in states without a Second
JONES V. BONTA 33
Amendment analog in their state constitution. 21 So only two
states—Kentucky and Michigan—banned the sale of
firearms to minors, see 1873 Ky. Acts 359, 1883 Mich. Pub.
Acts 144, and had a Second Amendment analog, see Ky.
Const. of 1850, Art. 13, § 25; Mich. Const. of 1850, Art. 17,
§ 7. These two laws—both passed over a decade after the
ratification of the Fourteenth Amendment—cannot
contravene the Second Amendment’s original public
meaning.
4
As to Defendants’ argument relying on the age of
majority being 21, rather than 18, we agree with the Fifth
Circuit and the Fourth Circuit’s vacated opinion in
Hirschfeld that “majority or minority is a status that lacks
content without reference to the right at issue.” 5 F.4th
at 435; NRA I, 700 F.3d at 204 n.17. 22 “As Blackstone’s
Commentaries makes clear, the relevant age of majority
depended on the capacity or activity.” Hirschfeld, 5 F.4th
at 435 (citing 1 William Blackstone, Commentaries at 463–
65). We also agree that “constitutional rights were not
generally tied to an age of majority, as the First and Fourth
Amendments applied to minors at the Founding as they do
21
New York passed two laws prohibiting the sale of firearms to
minors. N.Y. Penal Code ch. 375 § 1 (1883); id. § 409 (1885). But its
state constitution had no Second Amendment analog. (There is a Second
Amendment analog in N.Y. Civ. Rights Law § 4, but it was not passed
until the 20th century.) Delaware also banned the sale of firearms to
minors, 16 Del. Laws 716 (1881), but it did not ratify its Second
Amendment analog until 1987, Del. Const., Art. 1, § 20.
22
We find it telling that even though they came to different ultimate
conclusions, the Fifth Circuit and the Hirschfeld panel agreed on this
point.
34 JONES V. BONTA
today” and that “the age of majority Blackstone identifies for
different activities tells us little about the scope of the
Second Amendment’s protections.” Id.
5
Finally, Defendants argue that California’s laws are just
“conditions and qualifications on the commercial sale of
arms,” or “longstanding prohibitions on the possession of
firearms” by certain groups. Because of the hunting license
exception, the long gun regulation is more naturally
considered a “condition or qualification,” while the
semiautomatic rifle ban is more aptly categorized as a
“prohibition.” Heller itself called such measures
“presumptively lawful,” 554 U.S. at 626–27 n.26, so
Defendants argue that California’s laws pose no burden on
Second Amendment rights. We disagree. These laws
burden Second Amendment rights, notwithstanding this
observation from Heller.
First, the “longstanding prohibitions” referred to in
Heller were “prohibitions on the possession of firearms by
felons and the mentally ill,” id. at 626, not prohibitions on a
broader set of groups. Young adults are neither felons nor
mentally ill. The semiautomatic rifle law does not fall within
the Supreme Court’s enumerated categories.
Second, as to the long gun law, there is a more
fundamental problem. In Heller, the Supreme Court noted
just that “nothing in [its] opinion should be taken to cast
doubt on” laws such as “conditions and qualifications on the
commercial sale of arms,” and that such laws were
“presumptively lawful.” Id. at 627, n.26. But this does not
mean that all such laws pose no burden on Second
Amendment rights at all. “On the one hand, this language
could be read to suggest the identified restrictions are
JONES V. BONTA 35
presumptively lawful because they regulate conduct outside
the scope of the Second Amendment. On the other hand, it
may suggest the restrictions are presumptively lawful
because they pass muster under any standard of scrutiny.”
Pena, 898 F.3d at 976 (citing United States v. Marzarrella,
614 F.3d 85, 91 (3d Cir. 2010)). The answer need not be the
same for every regulation. Some presumptively lawful
measures might burden conduct unprotected by the Second
Amendment, while others might presumptively pass the
applicable level of scrutiny.
Here, our historical analysis leads us to conclude that
young adults have a Second Amendment right to keep and
bear arms. Because that right includes the right to purchase
arms, both California laws burden conduct within the scope
of the Second Amendment. The long gun law is a
“condition[] . . . on the commercial sale of arms,” Heller,
554 U.S. at 627, but it still burdens Second Amendment
rights. The Supreme Court’s observation in Heller is no
obstacle to this holding.
* * *
Ultimately, the Second Amendment protects the right of
the people to keep and bear arms and refers to the militia.
Young adults were part of the militia and were expected to
have their own arms. Thus, young adults have Second
Amendment protections as “persons who are a part of a
national community.” Id. at 580 (citing Verdugo–Urquidez,
494 U.S. at 265). Defendants point to contemporaneous
regulations, arguing that some states banned young adults
from having firearms later on, and that the age of majority
was 21, not 18. But these observations do not prove their
point: permissible regulations can still burden the right, later
laws cannot contravene the original public meaning, and the
age of majority depends on the conduct. The California laws
36 JONES V. BONTA
burden Second Amendment rights and the district court erred
in concluding otherwise.
E
Having concluded that the laws burden Second
Amendment rights, we now consider the district court’s
choice of a tier of scrutiny and its application of that tier.
Fyock, 779 F.3d at 996.
The district court properly applied intermediate scrutiny
to the long gun regulation but should have applied strict
scrutiny to the semiautomatic rifle ban. Similarly, the
district court did not abuse its discretion in holding that the
long gun regulation was likely to survive. But even under
intermediate scrutiny, the district court still abused its
discretion in holding that the semiautomatic rifle ban was
likely to survive.
1
First, we must determine the appropriate level of
scrutiny. Reviewing de novo, see Joelner, 508 F.3d at 431,
we consider both “how close [each] law comes to the core of
the Second Amendment right” and “the severity of [each]
law’s burden on [that] right,” Mai, 952 F.3d at 1115 (citing
Chovan, 735 F.3d at 1138). Laws that regulate how
individuals can exercise the right are less severe; laws that
amount to a total prohibition of the right are more severe.
See Pena, 898 F.3d at 977 (citing Chovan, 735 F.3d at 1138).
Similarly, “firearm regulations which leave open alternative
channels for self-defense are less likely to place a severe
burden on the Second Amendment right than those which do
not.” Jackson, 746 F.3d at 961 (citation omitted). The
district court properly applied intermediate scrutiny to the
JONES V. BONTA 37
long gun regulation, but improperly applied it to the
semiautomatic rifle ban.
i
As to the long gun regulation, the district court properly
applied intermediate scrutiny. The burden on Second
Amendment rights posed by this rule on its face is not severe.
This rule facially more aptly regulates “the manner in which
persons may exercise their Second Amendment right.” Id.
The long gun regulation allows a young adult to buy a
long gun if he gets a hunting license. This requirement does
not prevent young adults from having any firearms or from
using them in any particular way. Because this regulation
does not impose a significant burden on the Second
Amendment right to keep and bear arms, the district court
properly applied intermediate scrutiny.
ii
As to the semiautomatic rifle ban, we part company with
the district court. Strict scrutiny applies. The main
difference between this ban and the long gun regulation is
the exceptions. The long gun regulation has a readily
available exception, at least on its face—young adults can
get hunting licenses.
The semiautomatic rifle ban has no such exception: the
only young adults who can buy semiautomatic rifles are
some law enforcement officers and active-duty military
servicemembers.
It’s one thing to say that young adults must take a course
and purchase a hunting license before obtaining certain
firearms. But to say that they must become police officers
38 JONES V. BONTA
or join the military? For most young adults, that is no
exception at all. 23 In effect, this isn’t an exception that
young adults can avail themselves of by joining the police
force or military; it is a blanket ban for everyone except
police officers and servicemembers.
We have never held that intermediate scrutiny applied to
a rule that banned the purchase of a major category of
firearm. To the contrary, our cases applying intermediate
scrutiny have dealt with two kinds of laws. First, we have
applied intermediate scrutiny to laws that govern conduct
outside the core of the Second Amendment because the
actors are not “law-abiding, responsible citizens” under
Heller. See Torres, 911 F.3d at 1262–63; United States v.
Singh, 979 F.3d 697, 725 (9th Cir. 2020) (citing Torres,
911 F.3d at 1262–63); Mai, 952 F.3d at 1115. This rule does
not apply here. And second, we have applied intermediate
scrutiny to laws that regulate either the way people can
obtain or use firearms, or auxiliary features of those
firearms. See Pena, 898 F.3d at 977–78 (requiring specific
safety features and microstamped serial numbers); Bauer,
858 F.3d at 1221–22 (using firearm purchase fees to fund
law enforcement programs); Silvester v. Harris, 843 F.3d
816, 827 (9th Cir. 2016) (ten day waiting period to purchase
a gun); Fyock, 779 F.3d at 998–99 (ban of “large capacity”
magazines); Jackson, 746 F.3d at 963–65 (regulation of sale
of bullets); Duncan v. Bonta, 19 F.4th 1087, 1104 (9th Cir.
2021) (“large capacity” magazines). We have held that
23
Many young adults cannot even qualify for the “active peace
officer” exception, because although individuals may enroll in the police
academy at age 18, numerous political subdivisions require police
officers to be 21. See, e.g., General Information and Qualifications, San
Francisco Police Department, https://www.sanfranciscopolice.org/your-
sfpd/careers/sworn-job-openings/general-information-and-
qualifications (last visited Nov. 18, 2021).
JONES V. BONTA 39
intermediate scrutiny applies to laws like these because they
regulate the way people can exercise their Second
Amendment rights. Indeed, in Duncan, we were careful to
avoid approving of applying only intermediate scrutiny to
laws banning certain firearms entirely. Id. at 1104. We
noted that the law in that case “ha[d] no effect whatsoever
on which firearms may be owned” and that, as far as that law
was concerned, “anyone may own any firearm at all.” Id.
The opposite is true here: this law bans almost all young
adults from having semiautomatic rifles. We have never
applied intermediate scrutiny to a ban like this.
We have often observed that there is “near unanimity in
the post-Heller case law that, when considering regulations
that fall within the scope of the Second Amendment,
intermediate scrutiny is appropriate.” Mai, 952 F.3d at 1115
(citing Torres, 911 F.3d at 1262). But this observation
makes no difference here for a simple reason: the level of
scrutiny depends on the law at issue. That states and
localities at one point had passed laws that demanded only
intermediate scrutiny analysis says little about what kinds of
laws they may have passed later. Indeed, if states pass
increasingly strict gun laws, those laws may demand higher
scrutiny, especially considering their cumulative effect.
Handguns are the quintessential self-defense weapon,
see Heller, 554 U.S. at 629, but young adults already cannot
purchase them, Cal. Penal Code § 27505, 18 U.S.C.
§ 922(b)(1). And under this ban, they also cannot purchase
semiautomatic centerfire rifles. That leaves non-
semiautomatic centerfire rifles, rimfire rifles, and shotguns.
Non-semiautomatic rifles are not effective as self-defense
weapons because they must be manually cycled between
shots, a process which becomes infinitely more difficult in a
life or death situation. Rimfire rifles generally aren’t good
40 JONES V. BONTA
for self-defense either, because rimfire ammunition has
“poor stopping power” and are mostly used for things like
hunting small game. David Steier, Guns 101, 13 (2011). So
for self-defense in the home, young adults are left with
shotguns.
Even acknowledging that shotguns are effective
weapons for self-defense in the home, shotguns are
outmatched by semiautomatic rifles in some situations.24
Semiautomatic rifles are able to defeat modern body armor,
have a much longer range than shotguns and are more
effective in protecting roaming kids on large homesteads, are
much more precise and capable at preventing collateral
damage, and are typically easier for small young adults to
use and handle.
Thus, we hold that California’s ban is a severe burden on
the core Second Amendment right of self-defense in the
home. Young adults already cannot buy the quintessential
self-defense weapon, Heller, 554 U.S. at 629, and this ban
now stops them from buying semiautomatic rifles, leaving
only shotguns. So handguns aside, this law takes away one
of the two remaining practical options for self-defense in the
home, and leaves young adults with a self-defense weapon
24
Defendants argue that we may not consider Plaintiffs’ facts about
these categories of guns, because they were not submitted below. But
these facts are legislative facts, “which have relevance to legal reasoning
and the lawmaking process,” rather than adjudicative facts, which “are
simply the facts of the particular case.” Advisory Comm. Note, Fed. R.
Evid. 201. We have previously considered this kind of fact in a Second
Amendment challenge, even over a defendant’s challenge that it was not
in the record below. See Chovan, 735 F.3d at 1140–41 (considering
social science studies). In any case, Defendants did not contest
Plaintiffs’ evidence about rimfire semiautomatic rifles, and we agree
with Defendants that semiautomatic shotguns likely are effective self-
defense weapons.
JONES V. BONTA 41
which is not ideal or even usable in many scenarios. That is
a severe burden.
In arguing that the burden is not severe, the dissent points
first to the intrafamily transfer and loan provisions. Dissent
at 87. We disagree that these provisions sufficiently
alleviate the burden. To start, young adults remain severely
restricted in getting firearms through family transfers: Gifts
from parents and grandparents are allowed but strawman
purchases are not. See Cal. Penal Code §§ 27875 (family
transfers), 27515 (strawman purchases). Moreover,
allowing family transfers but not purchases makes young
adults’ Second Amendment rights conditional on the rights
of others. The family transfer provision is unavailable to
young adults whose parents or grandparents have passed
away, do not have a gun to transfer, or are unable or
unwilling to participate in a transfer. The first loan
provision, which permits loans of up to thirty days from a
slightly broader subset of family members, suffers from
similar problems, and is temporally limited. Cal. Penal Code
§ 27880. And the remaining loan provisions are only
available in even more limited circumstances: for only three
days and only if the firearm is used in the presence of the
loaner, Cal. Penal Code § 27885; if the firearm stays only at
the loaner’s residence, Cal. Penal Code § 27881; or if the
loan is only for the hunting season, which is only part of the
year, Cal. Penal Code § 27950. These provisions do not
alleviate the sales ban’s severe burden on the right of self-
defense in the home.
The dissent’s second rationale is that California’s ban
does not impose a severe burden because young adults can
just wait to buy semiautomatic rifles until they are 21.
Dissent at 87. It’s true that we’ve applied intermediate
scrutiny to a ten-day waiting period. Silvester, 843 F.3d
42 JONES V. BONTA
at 827. But telling young adults to wait up to three years is
a much more severe burden than having to wait a week and
a half. We are not aware of any precedent that has adopted
the dissent’s rationale. Indeed, telling an 18-year-old that he
can vote when he turns 21 would hardly minimize the
existing constitutional deprivation.
Finally, the dissent argues that our reasoning is circular
because any subset of guns can be considered a category.
Dissent at 88; see Worman v. Healey, 922 F.3d 26, 32 n.2
(1st Cir. 2019). But we do not hold that a ban of any kind or
subset of gun must necessarily receive strict scrutiny. We
hold just that this ban of semiautomatic rifles requires strict
scrutiny, because handguns are already banned, and
semiautomatic rifles are now effectively banned. That
means two of the three types of effective self-defense
firearms are banned, leaving young adults with limited or
ineffective alternatives in many self-defense scenarios, and
severely burdens their Second Amendment rights.
2
Having determined that intermediate scrutiny applies to
the long gun regulation, we now review for abuse of
discretion the district court’s application of that test. In
finding that the long gun regulation was likely to survive
intermediate scrutiny, Jones, 498 F. Supp. 3d at 1329–30,
the district court did not abuse its discretion.
California’s objective is “to increase public safety
through sensible firearm control and limit access to certain
firearms for some Young Adults with proper safety
training.” Id. at 1330. In its brief, Defendants referred to the
objective more broadly as promoting public safety and
reducing gun violence and crime.
JONES V. BONTA 43
Though public safety is important, firearms were also
dangerous in 1791, when the Second Amendment was
ratified, and the government then also had an interest in
promoting public safety. This is not a standalone
government interest separate from the Second Amendment:
The Second Amendment itself, “[l]ike the First, . . . is the
very product of an interest balancing by the people.” Heller,
554 U.S. at 635; see also Heller v. District of Columbia,
670 F.3d 1244, 1277 (D.C. Cir. 2011) (Kavanaugh, J.,
dissenting). “[T]he Second Amendment has already made
the basic policy choice for us.” Ass’n of N.J. Rifle & Pistol
Clubs v. Att’y Gen. of N.J., 910 F.3d 106, 129 (3d Cir. 2018)
(Bibas, J., dissenting) (citing Heller, 554 U.S. at 634–36).
Thus, in the reasonable fit part of the analysis, the
importance of the interest has no effect: once the interest is
shown to be important, the question becomes whether the
law is a reasonable fit. The importance of the interest cannot
override Second Amendment rights.
Defendants will likely be able to show that California’s
long gun regulation is a reasonable fit for the stated
objectives. The main effect of the rule is to require young
adults to take a hunter education class before they can get
long guns. So whether the rule is a reasonable fit depends
on what the law requires to happen in these hunter education
classes.
Some context for the hunter education classes is helpful.
Generally, before purchasing a gun, Californians must get an
FSC. Cal. Penal Code §§ 31615, 27540(e). Getting the
certificate requires passing a multiple-choice test and a safe
handling demonstration, both of which can happen at the
point of sale. Id. In enacting the regulation at issue,
however, California changed the requirements for young
adults. Rather than having to get an FSC, a young adult must
44 JONES V. BONTA
instead get a hunting license, which requires them to first
take and pass a hunter education class. California offers in-
person and hybrid class options. The course takes
approximately ten hours and costs less than $30. After
passing the course, a young adult may purchase a hunting
license for $54.
The class covers “firearm safety information” that is
“more extensive” than what is covered by the FSC test and
demonstration. The class also discusses other aspects of
hunting that are less relevant to non-hunting uses of long
guns (e.g., conservation). Cal. Fish & Game Code
§ 3051(a).
So, overall, California wants to “increase public safety
through sensible firearm control.” Jones, 498 F. Supp. 3d
at 1330. We agree with the district court that sensible
firearm control includes things like “proper training and
maintenance of firearms.” Id. California has pursued that
end by requiring young adults to take a class which teaches
them, among other things, “firearm safety information.”
Because the hunting classes include other, unrelated
information, the requirement is not a perfect fit. In other
words, this requirement likely is neither narrowly tailored
nor the least restrictive means for achieving California’s
goal. But it doesn’t have to be: it only has to be a reasonable
fit. And it likely is.
Before moving on to the semiautomatic rifle ban, we
pause to make one last point. In their complaint, Plaintiffs
have challenged the long gun regulation facially and as
applied. But they appeal the denial of the preliminary
injunction only on the basis that the law is facially invalid.
And in evaluating a facial challenge, we consider only the
text of the law—we judge the law on its face, not in its
application. See Calvary Chapel Bible Fellowship v. County
JONES V. BONTA 45
of Riverside, 948 F.3d 1172, 1176 (9th Cir. 2020). Nothing
we have said forecloses the possibility that the regulation
might still be unconstitutional as applied. For example, if
the hunter education courses were prohibitively expensive or
were only offered on a limited basis, then California might
be applying the regulation unconstitutionally. Still, as to the
facial challenge at issue, the district court did not abuse its
discretion in finding that the regulation would survive
intermediate scrutiny.
3
As to the semiautomatic rifle ban, because we have held
that strict scrutiny applies, we reverse on that basis. Even
so, we also hold in the alternative that, even if intermediate
scrutiny were to apply, the district court still abused its
discretion in finding that the ban was likely to survive, and
reverse on this alternative basis as well. (Because we hold
that the ban is unlikely to survive intermediate scrutiny, we
also by implication hold that it is even less likely to survive
strict scrutiny.) We first clarify the nature of the
intermediate scrutiny test, and then discuss its application
here.
i
“[A]ll forms of the [intermediate scrutiny] standard
require (1) the government’s stated objective to be
significant, substantial, or important; and (2) a reasonable fit
between the challenged regulation and the asserted
objective.” Jackson, 746 F.3d at 965 (citing Chovan,
735 F.3d at 1139). Unfortunately, despite regularly
acknowledging that a reasonable fit is required, we have
increasingly dispensed with the fit requirement, relying
instead on a cherry-picked formulation of the rule that
requires only that the regulation “promote a substantial
46 JONES V. BONTA
government interest that would be achieved less effectively
absent the regulation.” See, e.g., Mai, 952 F.3d at 1116.
Still, we have not silently transformed the test: intermediate
scrutiny continues to require an analysis of whether the
regulation is a reasonable fit for the government’s objective,
not just an assessment of whether it does anything at all.
We transported intermediate scrutiny into the Second
Amendment context from First Amendment cases. See
Fyock, 779 F.3d at 1000 (citing Colacurcio v. City of Kent,
163 F.3d 545, 553 (9th Cir. 1998)). To satisfy intermediate
scrutiny in the First Amendment context, the regulation must
first “promote[] a substantial government interest that would
be achieved less effectively absent the regulation.” United
States v. Albertini, 472 U.S. 675, 689 (1985). In other words,
the regulation must accomplish something. But that’s not
all: “[t]o be sure, this standard does not mean that a time,
place, or manner regulation may burden substantially more
speech than is necessary to further the government’s
legitimate interests.” Ward v. Rock Against Racism,
491 U.S. 781, 799 (1989) (citing Frisby v. Schultz, 487 U.S.
481, 485 (1988)). The government still “may not regulate
expression in such a manner that a substantial portion of the
burden on speech does not serve to advance its goals.” Id.
This is the essence of the intermediate scrutiny test: the
regulation must be a reasonable fit for the government’s
stated objective, which means not just that it accomplishes
something, but also that it does not burden far more speech
than is necessary.
Unfortunately, in our Second Amendment cases, we
have sometimes omitted one-half of the inquiry. When we
transplanted intermediate scrutiny from the First
Amendment to the Second, we continued to say that
intermediate scrutiny requires “a reasonable fit between the
JONES V. BONTA 47
challenged regulation and the asserted objective,” but we did
not bring the does-not-burden-more-conduct-than-necessary
part. Fyock, 779 F.3d at 1000 (citing Colacurcio, 163 F.3d
at 553) (but leaving off the second half of the test); Peruta,
824 F.3d at 942 (en banc); id. at 946 (Graber, J., concurring)
(citing Fyock, 779 F.3d at 1000); Silvester, 843 F.3d at 829
(citing Fyock, 779 F.3d at 1000); Mahoney v. Sessions,
871 F.3d 873, 882 (9th Cir. 2017) (citing Fyock, 779 F.3d
at 1000); Torres, 911 F.3d at 1264 (citing Fyock, 779 F.3d
at 1000); Singh, 979 F.3d at 725 (citing Fyock, 779 F.3d
at 1000); Mai, 952 F.3d at 1116 (citing Torres, 911 F.3d
at 1263). And bringing only the first half of the test is
“incomplete” because “[i]ntermediate scrutiny also requires
that a law not burden substantially more protected activity
than is necessary to further the government’s interest.”
Silvester v. Becerra, 138 S. Ct. 945, 950 (2018) (Thomas, J.,
dissenting from denial of certiorari).
When we omit the second part of the inquiry, we neglect
to consider fit at all. Something fits with something else if
it is “well adapted or suited to the conditions or
circumstances of the case” or if it is “proper or appropriate.”
“Fit, adj.,” Oxford Dictionary of English (3d ed.) (2010). So
a law is a good fit for a goal if it regulates only when it helps
achieve that goal, and not in other instances. The more
innocent conduct that is regulated, the less good a fit the law
is. And conversely, sweeping in less innocent conduct
makes for a better fit.
Asking only if the regulation accomplishes something
does not address “fit” at all: A straw and a two-foot pipe both
transport fluids, but only one of them is a reasonable fit for
drinking a soda. Intermediate scrutiny requires us to ask
whether a regulation is a reasonable fit for the government’s
48 JONES V. BONTA
stated objective. And that means that we have to consider
fit.
The dissent offers a rationale for why intermediate
scrutiny should be different in the Second Amendment
context, relative to the First Amendment, and suggests that
our failure to bring over the second part of the test was
purposeful. Dissent at 90–91. But this is an after-the-fact
rationalization, because in the series of cases in which we
used a weaker version of the rule, we simply left off the
second part of the test without explaining why. See, e.g.,
Fyock, 779 F.3d at 1000 (citing Colacurcio, 163 F.3d at
553). And contrary to the dissent’s rationale, a majority of
judges in a recent en banc panel also recently reaffirmed that
there is “no merit to the suggestion that the Ninth Circuit’s
application of intermediate scrutiny in Second Amendment
cases is somehow less exacting than its application of the
standard in other kinds of cases.” Duncan, 19 F.4th at 1138
(Berzon, J., concurring). In any case, we have continued to
acknowledge that “all forms of the [intermediate scrutiny]
standard require . . . a reasonable fit between the challenged
regulation and the asserted objective.” Jackson, 746 F.3d
at 965 (citing Chovan, 735 F.3d at 1139). But the dissent’s
version of the rule does not contain an analysis of fit.
ii
California’s stated objective for the semiautomatic rifle
ban is the same as for the long gun regulation: to promote
public safety and reduce gun violence and crime. Jones,
498 F. Supp. 3d at 1330. The question is whether the ban—
prohibiting commerce in semiautomatic rifles for all young
adults except those in the police or military—is a reasonable
fit for that aim.
JONES V. BONTA 49
We agree with Defendants that the fit need only be
reasonable, not perfect. Jackson, 746 F.3d at 969. But the
fit here is likely not even reasonable. The district court
abused its discretion in finding that Defendants could likely
show a reasonable fit.
In Craig v. Boren, the Supreme Court considered a law
that was a much better fit than this law and still found the fit
unreasonable. 429 U.S. 190 (1976). The law in Craig v.
Boren banned the sale of some beer to men between 18 and
21, but not to women in the same age range. Id. at 191–92.
Intermediate scrutiny applied, and the objective of the law
was to enhance traffic safety. Id. at 199. The state argued
that its law was a reasonable fit for that objective because
young men were more than ten times more likely to be
arrested for driving under the influence than young women.
Id. at 199–201. But the plaintiff argued that the law was
overbroad: only 2% of young men were arrested for drunk
driving, but the law regulated all young men. In other words,
the law regulated fifty times more men than was ideal: it
regulated 100% of them, even though only 2% would drive
drunk.
The Supreme Court struck down the law. “While such a
disparity is not trivial in a statistical sense, it hardly can form
the basis for employment of a gender line as a classifying
device.” Id. at 201. In other words, a ten times increase in
risk cannot justify regulating fifty times more people than is
ideal: “if maleness is to serve as a proxy for drinking and
driving, a correlation of 2% must be considered an unduly
tenuous ‘fit.’” Id.
The fit here is far more tenuous than that. In adopting
the ban at issue, the California legislature considered various
statistics. In particular, it knew that young adults were less
than 5% of the population but accounted for more than 15%
50 JONES V. BONTA
of homicide and manslaughter arrests. In other words,
young adults are more than three times more likely to be
arrested for homicide and manslaughter than other adults.
But as Plaintiffs point out, only 0.25% of young adults are
arrested for violent crimes. In other words, California’s law
sweeps in 400 times (100% divided by 0.25%) more young
adults than would be ideal. 25 Because it regulates so much
more conduct than necessary to achieve its goal, the law is
unlikely to be a reasonable fit for California’s objectives.
On this point, the dissent argues that we have
transformed intermediate scrutiny into an impermissible
“rigid statistical framework.” Dissent at 93 (citing
Hirschfeld, 5 F.4th at 479 (Wynn, J., dissenting)). But we
do not hold that Craig v. Boren established a rigid, bright-
line, statistical rule for reasonable fit. Instead, we simply
note that Craig v. Boren is an example of a law that was not
a reasonable fit. We establish no rigid statistical framework;
we use a few numbers only to compare Craig v. Boren with
this case, and to illustrate that the fit here is substantially
more tenuous. The dissent also argues that we compare
“apples to oranges” because Craig v. Boren concerned
gender discrimination, for which intermediate scrutiny
applies, whereas this case is about age discrimination, for
which, under the Fourteenth Amendment, we only review
for rational basis. Dissent at 94; see Kimel v. Fla. Bd. of
Regents, 528 U.S. 62, 83 (2000). But the dissent agrees that
intermediate scrutiny applies here, not rational basis. It is
the Second Amendment we are applying after all.
25
The law actually sweeps even more broadly that, because the 400
times over regulation figure does not account for repeat offenders. And
the denominator is also inflated because it includes all violent crimes,
not just homicide and manslaughter.
JONES V. BONTA 51
We pause here for an observation. The Second
Amendment “does not demand ‘an individualized hearing’
to assess Plaintiff’s own personal level of risk.” Mai,
952 F.3d at 1119 (citing Tyler v. Hillsdale Cnty. Sheriff’s
Dep’t, 837 F.3d 678, 698 n.18 (6th Cir. 2016) (en banc)).
But still, one way that states can improve regulations’ fit is
by having exceptions or more individualized assessment.
See, e.g., Singh, 979 F.3d at 725 (reasonable fit because
statute “carves out exceptions”); Horsley v. Trame, 808 F.3d
1126, 1132 (7th Cir. 2015) (reasonable fit because “a person
for whom a parent’s signature is not available can appeal to
the Director of the Illinois State Police”). There are only
limited exceptions here, and no individualized assessment of
any sort.
This result tracks our prior applications of intermediate
scrutiny in the Second Amendment context. In Chovan, we
found a reasonable fit with a law that banned convicted
domestic criminals from having guns. 735 F.3d at 1139–42.
In finding a reasonable fit there, we relied on the fact that “a
high rate of domestic violence recidivism exists,” and cited
studies “estimating a rate of domestic violence recidivism
between 35% and 80%.” Id. What’s more, the law only
regulated convicted domestic criminals, not anyone else.
Similarly, in Mai, we relied on statistics showing that
persons who had been involuntarily confined were 39 times
more likely to commit suicide, as well as figures showing
that even years later, the risk remained much higher than
normal. 952 F.3d at 1118. And again, the law only regulated
people who had been involuntarily confined, not anyone
else. Both laws are a far cry from the situation here: only
three times increased risk and more than 400 times
overregulation.
52 JONES V. BONTA
This result also fits with the deference that we owe to the
California legislature. “[W]e must accord substantial
deference to [the California legislature’s] predictive
judgments.” Mai, 952 F.3d at 1118 (citing Turner Broad.
Sys., Inc. v. FCC, 512 U.S. 622, 665 (1994) (Turner I)). And
we have. We defer to California’s assessment of the harm,
to its statistics about young adults, and to its assessment that
banning the sale of semiautomatic rifles would promote
public safety. 26 But in Turner II, the Supreme Court did not
defer when assessing the fit itself. See Turner Broad. Sys.,
Inc. v. FCC, 520 U.S. 180, 213 (1997). We also defer to the
legislature’s judgment only on the effect of a law, and not on
the law’s fit. See, e.g., Mai, 952 F.3d at 1117–21.
Ultimately, in applying intermediate scrutiny, the district
court had to do two things: identify the proper legal test for
“reasonable fit,” and measure the semiautomatic rifle ban
against that test. Properly identifying the legal standard is a
question of law that we review de novo; applying it is a
mixed question that we review for abuse of discretion. The
district court used the wrong legal rule. Because the district
court misapprehended the intermediate scrutiny test, it
abused its discretion by getting the law wrong.
F
1
The district court also erred in its analysis of the
irreparable harm preliminary injunction factor. “[T]he
26
Here, the dissent argues that we do not adequately discuss the
evidence that the California legislature considered. Dissent at 94–95.
But we defer to the legislature’s predictive judgments, and we agree that
its ban would promote public safety. Because we accept the legislature’s
conclusion on this point, we need not discuss its evidence further.
JONES V. BONTA 53
deprivation of constitutional rights unquestionably
constitutes irreparable injury.” Melendres v. Arpaio,
695 F.3d 990, 1002 (9th Cir. 2012) (citing Elrod v. Burns,
427 U.S. 347, 373 (1976)) (internal quotation marks
omitted). The district court offered three rationales for why
Plaintiffs would not be irreparably injured. They were all
error.
First, the district court erred in holding that there was no
irreparable harm because young adults could still obtain
firearms under an exception. Jones, 498 F. Supp. 3d at 1331.
As we discussed above, the exceptions do not alleviate the
ban’s severe burden on Second Amendment rights. They do
not allow Plaintiffs to avoid irreparable harm for the same
reasons. The main exception—for young adults with
hunting licenses—only applies to the long gun regulation,
not the semiautomatic rifle ban. So as to the semiautomatic
rifle ban, this exception makes no difference. And as we
discussed above, the exception for law enforcement officers
and active-duty military members does not apply for most
young adults. That leaves the family transfer and loan
provisions. But the loan provisions are very limited, and it
is not clear that young adults really can get firearms through
family transfers, because gifts from family members are
allowed but strawman purchases are not. See Cal. Penal
Code §§ 27875 (family transfers), 27515 (strawman
purchases).
Second, the district court observed that young adults
could still get firearms by using them “at shooting ranges
under certain circumstances.” Jones, 498 F. Supp. 3d
at 1331. But using a firearm at a shooting range does not
allow young adults to exercise their core Second
Amendment right of self-defense in the home. See Heller,
54 JONES V. BONTA
554 U.S. at 630. Young adults’ ability to go to shooting
ranges does not affect whether the harm here is irreparable.
And third, the district court relied on the fact that
“[P]laintiffs may still access firearms . . . when they turn
21.” Jones, 498 F. Supp. 3d at 1331. But a constitutional
violation is not reparable just because it is definite in
duration: a harm need not last indefinitely to be irreparable.
In other words, we would not tell a plaintiff suing over
voting right restrictions on young adults that her harm was
not irreparable because she could still vote when she turned
21.
2
Moreover, even putting aside these errors on irreparable
harm, “the district court’s likelihood-of-success
determination [also] tainted its evaluation of the remaining
three Winter elements.” Pom Wonderful LLC v. Hubbard,
775 F.3d 1118, 1133 (9th Cir. 2014). Our determination that
Plaintiffs are likely to succeed on the merits “fundamentally
changes the district court’s calculus.” BOKF, NA v. Estes,
923 F.3d 558, 565 (9th Cir. 2019). Still, “a preliminary
injunction is an extraordinary remedy never awarded as of
right.” Benisek v. Lamone, 138 S. Ct. 1942, 1943 (citing
Winter, 555 U.S. at 24). And “the grant of a preliminary
injunction is a matter committed to the discretion of the trial
judge.” Epona v. County of Ventura, 876 F.3d 1214, 1227
(9th Cir. 2017) (citing Sierra On-Line, Inc. v. Phoenix
Software, Inc., 739 F.2d 1415, 1421 (9th Cir. 1984)). This
makes sense here because reconsidering the remaining
factors may be “at least in part, fact-dependent.” BOKF,
923 F.3d at 565. Thus, despite Plaintiffs’ “overwhelming
likelihood of success on the merits, we remand this case to
the district court to consider the remaining [three] Winter
factors consistent with this opinion.” Goldman, Sachs & Co.
JONES V. BONTA 55
v. City of Reno, 747 F.3d 733, 747 (9th Cir. 2014) (citing
Evans v. Shoshone-Bannock Land Use Pol’y Comm’n,
736 F.3d 1298, 1307 (9th Cir. 2013)).
We note for the district court’s reconsideration that “the
government suffers no harm from an injunction that merely
ends unconstitutional practices.” Kelly, 878 F.3d at 718
(cleaned up).
V
In conclusion, the district court erred by holding that the
California laws did not burden Second Amendment rights.
It properly applied intermediate scrutiny to the long gun
regulation and did not abuse its discretion in finding it likely
to survive. But it erred in applying intermediate scrutiny to
the semiautomatic rifle ban. And even if intermediate
scrutiny applied, the district court abused its discretion in
finding the ban likely to survive. Finally, the district court
erred in its application of the irreparable harm factor. Thus,
as to the long gun regulation, the district court’s order is
AFFIRMED. And as to the semiautomatic centerfire rifle
ban, the district court’s order is REVERSED. We
REMAND the case to the district court for further
proceedings consistent with this opinion.
56 JONES V. BONTA
APPENDICES
57 JONES V. BONTA
Appendix 1: Pre-Ratification Militia Laws
Colony Age Citations
Connecticut 16 An Act for Forming, Regulating, and Conducting the
Military Force of this State (1786), in Acts and Laws of
the State of Connecticut, in America 144, 144, 150
(1786).
Delaware 18 An Act for Establishing a Militia Within this State §§ 2,
5 (1778); An Act for Establishing a Militia, in The
Ninth Year of the Independence of the Delaware State
at 11–13 (1785).
Georgia 16 Act of 1770, 19 Colonial Records of the State of
Georgia 137–39 (A. Candler ed. 1911 (pt. 1)); An Act
for Regulating the Militia of the State, and for
Repealing the Several Laws Heretofore Made for that
Purpose (1786).
Maryland 16 An Act to Regulate the Militia § 2 (1777).
Massachusetts 16 The General Court of Massachusetts, January Session
1784 (Laws and Resolves 1784, c. 55, pp. 140, 142);
An Act for Regulating and Governing the Militia of the
Commonwealth of Massachusetts, and for Repealing
All Laws Heretofore Made for that Purpose § 2 (1785),
in The Acts and Laws, Passed by the General Court of
Massachusetts 220, 221 (1785).
New 16 An Act for Forming and Regulating the Militia Within
Hampshire this State, and for Repealing All the Laws Heretofore
Made for that Purpose (1786), in The Laws of the State
of New Hampshire, Together with the Declaration of
Independence: The Definitive Treaty of Peace between
the United States of America and His Britannic
Majesty: The Constitution of New Hampshire, and the
Constitution of the United States, with Its Proposed
Amendments 356, 357 (1792).
New Jersey 16 An Act to Embody, for a Limited Time, One Thousand
of the Militia of this State, for the Defence of the
Frontiers Thereof §§ 1–3 (1778), in Acts of the General
Assembly of the State of New Jersey; An Act for the
Regulating, Training, and Arraying of the Militia, and
for Providing More Effectually for the Defence and
Security of the State § 10 (1781), in Acts of the Fifth
JONES V. BONTA 58
General Assembly of the State of New Jersey, at a
Session Begun at Trenton on the 24th Day of October,
1780, and Continued by Adjournments 39, 42 (1781);
An Act for the Better Regulating the Militia § 1 (1777),
in Acts of the General Assembly of the State of New
Jersey, at a Session Begun at Princeton on the 27th Day
of August 1776, and Continued by Adjournments 26,
26 (1777).
New York 16 Act of April 4, 1786 (Laws 1786, c. 25); An Act to
Regulate the Militia (1786), in 1 Laws of the State of
New York, Comprising the Constitution, and the Acts
of the Legislature, Since the Revolution, from the First
to the Fifteenth Session, Inclusive 227, 227 (1792).
North 16 An Act to Establish a Militia in this State § 2, (1777), in
Carolina Acts of Assembly of the State of North Carolina 1, 1
(1777).
Pennsylvania 18 An Act to Regulate the Militia of the Commonwealth
of Pennsylvania §§ 2, 4 (1777), in 9 The Statutes at
Large of Pennsylvania from 1682 to 1801, at 75, 77–80
(1903); An Act for the Regulation of the Militia of the
Commonwealth of Pennsylvania § 3 (1780), in 10 The
Statutes at Large of Pennsylvania from 1682 To 1801,
at 144, 146 (1904).
Rhode Island 16 The Act for Better Forming, Regulating and
Conducting the Military Force of this State (1779), in
At the General Assembly of the Governor and
Company of the State of Rhode Island, and Providence
Plantations, Begun and Holden at South Kingstown,
Within and for the State aforesaid, on the Last Monday
in October, in the Year of Our Lord One Thousand
Seven Hundred and Seventy-Nine, and in the Fourth
Year of Independence 29, 29, 31–32.
South 16 An Act for the Regulation of the Militia of this State
Carolina (1782), in Acts Passed at a General Assembly, Begun
And Holden at Jacksonsburgh, in the State of South-
Carolina 20, 20–24.
Vermont 16 An Act Regulating the Militia of the State of Vermont
(1787), in Statutes of the State of Vermont, Passed by
the Legislature in February and March 1787, at 94, 94
59 JONES V. BONTA
(1787); An Act, for Regulating and Governing the
Militia of this State §§ 1, 14 (1797), in 2 The Laws of
the State of Vermont, Digested and Compiled Including
the Declaration of Independence, the Constitution of
the United States, and of this State 122, 122, 131
(1808).
Virginia 16 An Ordinance for Raising and Embodying a Sufficient
(1775); Force, for the Defence and Protection of this Colony
18 (1775), in 9 William Waller Hening, The Statutes at
(1785) Large; Being a Collection of All the Laws of Virginia,
from the First Session of the Legislature, in the Year
1619, at 9, 16–17 (1821); An Act to Amend and
Reduce into One Act, the Several Laws for Regulating
and Disciplining the Militia, and Guarding Against
Invasions and Insurrections § 3 (1785), in 12 William
Waller Hening, The Statutes at Large; Being a
Collection of All the Laws of Virginia, from the First
Session of the Legislature, in the Year 1619, at 9, 10–
12 (1823).
JONES V. BONTA 60
Appendix 2: Post-Ratification Militia Laws
State Age Citations
Connecticut 18 An Act for Forming and Conducting the Military Force of
this State, Conformable to the Act of Congress, Passed the
Eighth Day of May, A.D. 1792, Which Is as Follows:—
“An Act More Effectually to Provide for the National
Defence, by Establishing an Uniform Militia Throughout
the United States” § 1 (1792), in Acts and Laws of the
State of Connecticut in America 298, 298–99 (1796).
Delaware 18 An Act for Establishing the Militia in this State § 1 (1793),
in 2 Laws of the State of Delaware from the Fourteenth
Day of October, One Thousand Seven Hundred, to the
Eighteenth Day of August, One Thousand Seven Hundred
and Ninety-Seven 1134, 1134 (1797).
Georgia 18 An Act to Revise and Amend the Militia Law of this State,
and to Adapt the Same to the Act of the Congress of the
United States, Passed the Eighth Day of May, One
Thousand Seven Hundred and Ninety–Two, Entitled “An
Act More Effectually to Provide for the National Defence,
by Establishing and Uniform Militia Throughout the
United States” § 9 (1792), in Digest of the Laws of the
State of Georgia 348, 350 (1802).
Maryland 18 An Act to Regulate and Discipline the Militia of this State
pmbl. (1793), in Laws of Maryland, November Session
1793 (1793).
Massachusetts 18 An Act for Regulating and Governing the Militia of the
Commonwealth of Massachusetts, and for Repealing All
Laws Heretofore Made for that Purpose; Excepting an Act
Intitled “An Act for Establishing Rules and Articles for
Governing the Troops Stationed in Forts and Garrisons,
Within this Commonwealth, and also the Militia, When
Called into Actual Service” § 2 (1793), in Acts and Laws,
Passed by the General Court of Massachusetts, Begun and
Held at Boston, in the County of Suffolk, on Wednesday
the Twenty-Ninth Day of May, Anno Domini, 1793, at
289, 290 (1793).
New 18 An Act for Forming and Regulating the Militia Within
Hampshire This State, and for Repealing All the Laws Heretofore
Made for that Purpose (1792), in The Laws of the State of
61 JONES V. BONTA
New Hampshire, Passed at a Session of the Honorable
General-Court, Begun and Holden at Exeter, November
1972, at 441, 441 (1793).
New Jersey 18 An Act for Organizing and Training the Militia of this
State § 4 (1792), in Acts of the Seventeenth General
Assembly of the State of New Jersey 824, 825 (1792).
New York 18 An Act to Organize the Militia of this State (1793), in
Laws of the State of New York, Passed at the Sixteenth
Session of the Legislature 440, 440.
North 18 An Act for Establishing a Militia in this State § 1 (1786),
Carolina in The Laws of North-Carolina 18, 18 (amended by An
Act to Carry into Effect an Act of Congress, Entitled, “An
Act More Effectually to Provide for the National Defence,
by Establishing an Uniform Militia Throughout the United
States,” Also to Amend an Act, Passed at Fayetteville, in
the Year One Thousand Seven Hundred and Eighty Six,
Entitled, “An Act for Establishing the Militia in this State”
(1793)).
Pennsylvania 18 An Act for the Regulation of the Militia of the
Commonwealth of Pennsylvania § 1 (1793), in The
Statutes at Large of Pennsylvania from 1682 to 1801, at
454, 455–57 (1909).
Rhode Island 18 *
South 18 An Act to Organize the Militia Throughout the State of
Carolina South Carolina, in Conformity with the Act of Congress
(1794), in Acts and Resolutions of the General Assembly,
of the State of South Carolina, Passed in April, 1794, at 1,
2 (1794).
Vermont 18 An Act, for Regulating and Governing the Militia of this
State §§ 1, 15 (1797), in 2 The Laws of the State of
Vermont, Digested and Compiled Including the
Declaration of Independence, the Constitution of the
United States, and of this State 122, 122, 131–32 (1808).
Virginia 18 **
JONES V. BONTA 62
* The most relevant founding-era law we could find from Rhode Island set the
militia age at 18 in 1794. An Act to Organize the Militia of this State (1794), in At
the General Assembly of the Governor and Company of the State of Rhode Island
And Providence Plantations, Begun and Holden by Adjournment at East
Greenwich, Within and For the State Aforesaid, on the Last Monday in March, in
the Year of Our Lord One Thousand Seven Hundred and Ninety-Four, and of
Independence the Eighteenth 14, 14–15 (1794) (reprinting the federal Militia Act
and organizing the militia in line with federal law setting the age at 18). Prior laws
had set the militia age at 16. The Act for Better Forming, Regulating and
Conducting the Military Force of this State (1779), in At the General Assembly of
the Governor and Company of the State of Rhode Island, and Providence
Plantations, Begun and Holden at South Kingstown, Within and For the State
Aforesaid, on the Last Monday in October, in the Year of Our Lord One Thousand
Seven Hundred and Seventy-Nine, and in the Fourth Year of Independence 29, 29;
An Act, Regulating the Militia in this Colony, In the Charter, Granted by His
Majesty, King Charles II. To the Governor and Company of the English Colony of
Rhode Island and Providence Plantations, in New England, in America 179, 179
(1767).
** Preceding ratification, Virginia required 18-year-olds to join the militia and
bring their own arms. An Act to Amend and Reduce into One Act, the Several
Laws for Regulating and Disciplining the Militia, and Guarding Against Invasions
and Insurrections § 3 (1785), in 12 William Waller Hening, The Statutes at Large;
Being a Collection of all the Laws of Virginia, from the First Session of the
Legislature, in the Year 1619, at 9, 10, 12 (1823). This law also created a separate
company for 18- to 25-year-olds that trained more often than the rest of the
militia. Id. § 1, in Hening, supra, at 14–15. Following ratification, Virginia’s
militia law did not mention age or equipment, focusing more on the organization
by county. An Act for Regulating the Militia of this Commonwealth (1792), in A
Collection of all Such Acts of the General Assembly of Virginia, of a Public and
Permanent Nature, as are Now in Force 282, 282–90 (1803). But the act did not
alter the age requirements set in 1785 and kept the light company of 18- to 25-
year-olds. Like many other statutes at the time, however, Virginia’s law said that it
was helping to “carry the [federal Militia Act] into effect.” Id. § 1, in A Collection
of all Such Acts, supra, at 282. And the federal Militia Act required 18-year-olds
to enlist and bring their own arms.
63 JONES V. BONTA
Appendix 3: Reconstruction Era Laws
State Citation Statutory text
Alabama 1856 Ala. “That anyone who shall sell or give or lend, to any
Acts 17 male minor, a bowie knife, or knife or instrument of
the like kind or description, by whatever name
called, or air gun or pistol, shall, on conviction be
fined not less than three hundred, nor more than one
thousand dollars.”
Alabama Ala. Code “Any person who sells, gives, or lends, to any boy
§ 4230 under eighteen years of age, any pistol, or bowie
(1887) knife, or other knife of like kind or description, must
on conviction, be fined not less than fifty, nor more
than five hundred dollars.”
Delaware 16 Del. “That if any person shall carry concealed a deadly
Laws 716 weapon upon or about his person other than an
(1881) ordinary pocket knife, or shall knowingly sell a
deadly weapon to a minor other than an ordinary
pocket knife, such person shall, upon conviction
thereof, be fined not less than twenty-five nor more
than two hundred dollars or imprisoned in the
county jail for not less than ten nor more than thirty
days, or both at the discretion of the court: Provided,
that the provisions of this section shall not apply to
the carrying of the usual weapons by policemen and
peace officers.”
Florida 1881 Fla. “[I]t shall be unlawful for any person or persons to
Laws 87 sell, hire, barter, lend or give to any minor under
sixteen years of age any pistol, dirk or other arm or
weapon, other than an ordinary pocket-knife, or a
gun or rifle used for hunting, without the permission
of the parent of such minor, or the person having
charge to such minor, and it shall be unlawful for
any person or persons to sell, hire, barter, lend or
give to any person or persons of unsound mind any
dangerous weapon, other than an ordinary pocket-
knife. § 2. Any person or persons so offending
shall be deemed guilty of a misdemeanor, and upon
conviction thereof shall be fined not less than
JONES V. BONTA 64
twenty nor more than fifty dollars, or imprisoned in
the county jail not more than three months.”
Georgia 1876 Ga. “[F]rom and after the passage of this Act it shall not
Laws 112 be lawful for any person, or persons, knowingly to
sell, give, lend or furnish any minor or minors any
pistol, dirk, bowie, knife, or sword cane . . . .”
Illinois 1881 Ill. “Whoever, not being the father, guardian, or
Laws 73 employer or the minor herein named, by himself or
agent, shall sell, give, loan, hire or barter, or shall
offer to sell, give, loan, hire or barter to any minor
within this state, any pistol, revolver, derringer,
bowie knife, dirk or other deadly weapon of like
character, capable of being secreted upon the
person, shall be guilty of a misdemeanor, and shall
be fined in any sum not less than twenty-five dollars
($25), nor more than two hundred ($200).”
Indiana 1875 Ind. “Be it enacted by the General Assembly of the State
Acts 86 of Indiana, That it shall be unlawful for any person
to sell, barter, or give to any other person, under the
age of twenty-one years, any pistol, dirk, or bowie-
knife, slung-shot, knucks, or other deadly weapon
that can be worn, or carried, concealed upon or
about the person, or to sell, barter, or give to any
person, under the age of twenty-one years, any
cartridges manufactured and designed for use in a
pistol. § 2. Be it further enacted, That any person
who shall violate any of the provisions of the
foregoing section shall be deemed guilty of a
misdemeanor, and upon conviction thereof, shall be
fined in any sum not less than five dollars, nor more
than fifty dollars.”
Iowa 1884 Iowa “Section 1. That it shall be unlawful for any person
Acts 86 to knowingly sell, present or give any pistol,
revolver or toy pistol to any minor. Sec. 2. Any
violation of this act shall be punishable by a fine of
not less than twenty-five nor more than one hundred
dollars or by imprisonment in the county jail of not
less than ten nor more than thirty days. Sec. 3. This
act being deemed of immediate importance shall be
65 JONES V. BONTA
in full force and take effect from and after its
publication in the Iowa State Leader and Iowa State
Register, newspapers published at Des Moines,
Iowa.”
Kansas 1883 Kan. Ҥ 1. Any person who shall sell, trade, give, loan or
Sess. Laws otherwise furnish any pistol, revolver or toy pistol,
159 by which cartridges or caps may be exploded, or
any dirk, bowie-knife, brass knuckles, slung shot, or
other dangerous weapons to any minor, or to any
person of notoriously unsound mind, shall be
deemed guilty of a misdemeanor, and shall, upon
conviction before any court of competent
jurisdiction, be fined not less than five nor more
than one hundred dollars. § 2. Any minor who
shall have in his possession any pistol, revolver or
toy pistol, by which cartridges may be exploded, or
any dirk, bowie-knife, brass knuckles, slung shot or
other dangerous weapon, shall be deemed guilty of a
misdemeanor, and upon conviction before any court
of competent jurisdiction shall be fined not less than
one more than ten dollars.”
Kentucky 1873 Ky. “If any person shall carry concealed a deadly
Acts 359 weapon upon or about his person other than an
ordinary pocket knife, or shall sell a deadly weapon
to a minor other than an ordinary pocket knife, such
person shall, upon indictment and conviction, be
fined not less than twenty-five nor more than one
hundred dollars, and imprisoned in the county jail
for not less than ten nor more than thirty days, in the
discretion of the court or jury trying the case.”
Louisiana 1890 La. “[I]t shall be unlawful, for any person to sell, or
Acts 39 lease or give through himself or any other person,
any pistol, dirk, bowie-knife or any other dangerous
weapon which may be carried concealed to any
person under the age of twenty-one years.”
Maryland 1882 Md. “Section 1. Be it enacted by the General Assembly
Laws 656 of Maryland, That it shall be unlawful for any
person or persons within the State of Maryland to
manufacture or sell, barter or give away the
JONES V. BONTA 66
cartridge toy pistol to any one whomsoever. Sec. 2.
Be it enacted, That it shall be unlawful for any
person, be he or she licensed dealer or not, to sell,
barter or give away any firearm whatsoever or other
deadly weapons, except shotgun, fowling pieces and
rifles, to any person who is a minor under the age of
twenty-one years. Any person or persons violating
any of the provisions of this act shall, on conviction
thereof, pay a fine of not less than fifty nor more
than two hundred dollars, together with the cost of
prosecution, and upon failure to pay said fine and
cost, be committed to jail and confined therein until
such fine and costs are paid, or for the period of
sixty days, whichever shall first occur.”
Michigan 1883 Mich. “That no person shall sell, give, or furnish to any
Pub. Acts child under the age of thirteen years, any cartridge
144 of any form or material, or any pistol, gun, or other
mechanical contrivance, specially arranged or
designated for the explosion of the same.”
Mississippi 1878 Miss. Ҥ 2. It shall not be lawful for any person to sell to
Laws 175– any minor or person intoxicated, knowing him to be
76 a minor or in a state of intoxication, any weapon of
the kind or description in the first section of this Act
described [pistols, various knives etc.], or any pistol
cartridge, and on conviction shall be punished by a
fine not exceeding two hundred dollars, and if the
fine and costs are not paid, be condemned to hard
labor under the direction of the board of supervisors
or of the court, not exceeding six months. § 3. Any
father, who shall knowingly suffer or permit any
minor son under the age of sixteen years to carry
concealed, in whole or in part, any weapon of the
kind or description in the first section of this act
described [pistols, knives, etc.], shall be deemed
guilty of a misdemeanor, and on conviction, shall be
fined not less than twenty dollars, nor more than
two hundred dollars, and if the fine and costs are not
paid, shall be condemned to hard labor under the
67 JONES V. BONTA
direction of the board of supervisors or of the
court.”
Missouri Mo. Rev. “If any person shall . . . directly or indirectly, sell or
Stat. § 1274 deliver, loan, or barter to any minor, any such
(1879) weapon [‘any kind of fire-arms, bowie-knife, dirk,
dagger, slungshot or other deadly weapon’], without
the consent of the parent or guardian of such minor,
he shall, upon conviction, be punished by a fine of
not less than five nor more than one hundred
dollars, or by imprisonment in the county jail not
exceeding three months, or by both such fine and
imprisonment.”
Nevada 1885 Nev. “ Every person under the age of twenty-one (21)
Stat. 51 years who shall wear or carry any dirk, pistol, sword
in case, slung shot, or other dangerous or deadly
weapon concealed upon his person, shall be deemed
guilty of a misdemeanor, and shall, upon conviction
thereof, be fined not less than twenty nor more than
two hundred ($200) dollars, or by imprisonment in
the county jail not less than thirty days nor more
than six months or by both such fine and
imprisonment.”
New Jersey 1885 N.J. “That it shall not be lawful to sell, hire or loan to
Laws 52, any person under the age of fifteen years any gun,
ch. 44 § 2 pistol, toy pistol, or other fire-arms; or for any
(1885) person under the age of fifteen years to purchase,
barter or exchange any gun, pistol, toy pistol or
other fire-arms; nor for any person under the age of
fifteen years to carry, fire or use any gun, pistol, toy
pistol or other fire-arms, except in the presence of
his father or guardian, or for the purpose of military
drill in accordance with the rules of a school.”
New York N.Y. Penal “No person under the age of eighteen years shall
Code ch. have, carry or have in his possession in any public
375 § 1 street, highway or place in any of the cities of this
(1883) state, any pistol or other firearms of any kind, and
no person shall in such cities sell or give any pistol
JONES V. BONTA 68
or other fire-arms to any person under such age.
§ 2. Any person violating any of the provisions of
this act shall be guilty of a misdemeanor, and in all
trials or examinations for said offense the
appearance of the person so alleged or claimed to be
under the age of eighteen years shall be evidence to
the magistrate or jury as to the age of such person.”
New York N.Y. Penal “A person who manufactures, or causes to be
Code § 409 manufactured, or sells or keeps for sale, or offers, or
(1885) gives, or disposes of, any instrument or weapon of
the kind usually known as slung-shot, billy, sand
club or metal knuckles, or who, in any city in this
state, without the written consent of a police
magistrate, sells or gives any pistol or other fire-arm
to any person under the age of eighteen years is
guilty of a misdemeanor.”
North 1893 N.C. “Section 1. That it shall be unlawful for any person,
Carolina Sess. Laws corporation or firm knowingly to sell or offer for
468–69 sale, give or in any way dispose of to a minor any
pistol or pistol cartridge, brass knucks, bowie-knife,
dirk, loaded cane, or sling shot. Sec. 2. That any
person, corporation or firm violating this act shall be
guilty of a misdemeanor, and upon conviction for
each and every offense shall be fined or imprisoned,
one or both, in the discretion of the court.”
Pennsylvania 1881 Pa. “Any person who shall knowingly and willfully sell
Laws 423 or cause to be sold to any person under sixteen years
of age, any cannon, revolver, pistol or other such
deadly weapon, or who shall knowingly and
willfully sell, or cause to be sold, to any such minor,
any imitation or toy cannon, revolver or pistol so
made, constructed or arranged as to be capable of
being loaded with gunpowder or other explosive
substance, cartridges, shot, slugs or balls and being
exploded, fired off and discharged, and thereby
become a dangerous or deadly weapon, or who shall
knowingly and willfully sell, or cause to be sold to
any such minor, any cartridge, gunpowder or other
dangerous and explosive substance, shall in every
69 JONES V. BONTA
such case, be guilty of a misdemeanor, and upon
conviction thereof shall be sentenced to pay a fine
not exceeding three hundred dollars.”
Rhode Island 1883 R.I. “No person shall sell to any child under the age of
Pub. Laws fifteen years, without the written consent of a parent
157 or guardian of such child, any cartridge or fixed
ammunition of which any fulminate is a component
part, or any gun, pistol or other mechanical
contrivance arranged for the explosion of such
cartridge or of any fulminate.”
Tennessee 1856 Tenn. “Any person who sells, loans, or gives, to any minor
Pub. Acts a pistol, bowie-knife, dirk, Arkansas tooth-pick,
92 hunter’s knife, or like dangerous weapon, except a
gun for hunting or weapon for defense in traveling,
is guilty of a misdemeanor, and shall be fined not
less than twenty-five dollars, and be imprisoned in
the county jail at the discretion of the court.”
Texas 1897 Tex. “That if any person in this State shall knowingly
Gen. Laws sell, give or barter, or cause to be sold, given or
221–22 bartered to any minor, any pistol, dirk, dagger, slung
shot, sword-cane, spear or knuckles made of any
metal or hard substance, bowie knife or any other
knife manufactured or sold for the purpose of
offense or defense, without the written consent of
the parent or guardian of such minor, or of someone
standing in lieu thereof, he shall be punished by fine
of not less than twenty-five nor more than two
hundred dollars, or by imprisonment in the county
jail not less than ten nor more than thirty days, or by
both such fine and imprisonment. And during the
time of such imprisonment such offender may be
put to work upon any public work in the county in
which such offense is comitted [sic].”
Washington, 27 Stat. “Any person or persons who shall, within the
D.C. 116–17 District of Columbia, sell, barter, hire, lend, or give
(1892), later to any minor under the age of twenty-one years any
codified in such [‘deadly or dangerous’] weapon as
hereinbefore described shall, upon conviction
JONES V. BONTA 70
D.C. Code thereof, be fined not more than one hundred dollars
§§ 855–57 or be imprisoned nor more than three months, or
both.”
West 1882 W. “[I]f any person shall sell or furnish any such
Virginia Va. Acts weapon as hereinbefore mentioned [‘revolver or
421–22 other pistol, dirk, bowie knife, razor, slung shot,
billy, metallic or other false knuckles, or any other
dangerous or deadly weapon of like kind or
character’] to a person whom he knows, or has
reason from his appearance or otherwise, to believe
to be under the age of twenty-one years, he shall be
punished as hereinbefore provided . . . .”
Wisconsin 1883 Wis. “It shall be unlawful for any minor, within this state,
Sess. Laws to go armed with any pistol or revolver, and it shall
290 be the duty of all sheriffs, constables, or other public
police officers, to take from any minor, any pistol or
revolver, found in his possession. Section 2. It
shall be unlawful for any dealer in pistols or
revolvers, or any other person, to sell, loan, or give
any pistol or revolver to any minor in this state.”
Wyoming 1890 Wyo. “It shall be unlawful for any person to sell, barter or
Sess. Laws give to any other person under the age of twenty-
1253 one years any pistol, dirk or bowie knife, slung-shot,
knucks or other deadly weapon that can be worn or
carried concealed upon or about the person, or to
sell, barter or give to any person under the age of
sixteen years any cartridges manufactured and
designed for use in a pistol; and any person who
shall violate any of the provisions of this section
shall be fined in any sum not more than fifty
dollars.”
JONES V. BONTA 71
LEE, Circuit Judge, concurring:
As explained in Judge Nelson’s excellent opinion,
California’s law effectively banning the sale or transfer of
semiautomatic firearms to young adults conflicts with the
text, tradition, and history of the Second Amendment. I join
the opinion in full but write separately to highlight how
California’s legal position has no logical stopping point and
would ultimately erode fundamental rights enumerated in
our Constitution. Simply put, we cannot jettison our
constitutional rights, even if the goal behind a law is
laudable.
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 1, 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 adult population. That is not a
“reasonable fit.”
1
We should apply strict scrutiny under our court’s two-step inquiry
test, as explained in Judge Nelson’s opinion. But see Rogers v. Grewal,
140 S. Ct. 1865,1867 (2020) (Thomas, J., dissenting from denial of
certiorari) (stating that our two-step test “appears to be entirely made up”
and that “its application has yielded analyses that are entirely
inconsistent with Heller”).
72 JONES V. BONTA
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.
But as tempting as that solution may sound to some, such
a law almost certainly would not pass constitutional muster.
And the reason is obvious: its scope would not be remotely,
2
The Violence Project Database, https://www.theviolenceproject.o
rg/mass-shooter-database/ (last visited December 15, 2021). Of the 172
mass shootings since 1966, only four of them involved women. But of
the four, two of them were assisting their male counterparts in the mass
shooting. The organization used Congressional Research Service’s
definition of a mass shooting, i.e., “a multiple homicide incident in which
four or more victims are murdered with firearms . . . within one event,
and at least some of the murders occurred in a public location or locations
in close geographical proximity . . . and the murders are not attributable
to any other underlying criminal activity or commonplace
circumstance.”
JONES V. BONTA 73
let alone reasonably, tailored to the praiseworthy goal of
curbing gun violence. 3 Cf. Bd. of Trustees of State Univ. of
New York v. Fox, 492 U.S. 469, 480 (1989) (requiring the
“governmental goal to be substantial, and the cost to be
carefully calculated” under intermediate scrutiny). While
men constitute almost all mass shooters, 99.999999% 4 of
men are not mass shooters. In other words, such a
hypothetical law would strip all men of their Second
Amendment rights based on the actions of 0.000001% of the
male population.
The Supreme Court rejected such tenuous logic in Craig
v. Boren when it struck down a state law banning the sale of
some beer to young men, who overwhelmingly are much
likelier than young women to drive under the influence and
cause car accident deaths. 429 U.S. 190 (1976). Applying
intermediate scrutiny for gender-based classifications, the
3
California has argued that intermediate scrutiny should apply to its
gun-control laws, which is the same standard used for gender-based
classifications. See, e.g., Craig v. Boren, 429 U.S. 190 (1976) (applying
traditional intermediate scrutiny test). During oral argument, counsel for
the state was non-committal on whether such a hypothetical law would
survive intermediate scrutiny. If United States v. Virginia established a
more heightened version of intermediate scrutiny, 518 U.S. 515 (1996)
(applying an “exceedingly persuasive” burden requirement), then—at
the very least—that version should apply to an enumerated constitutional
right “deeply rooted in this Nation’s history and tradition.” McDonald
v. City of Chicago, 561 U.S. 742, 778 (2010).
4
Since 1966, there have been 170 mass shootings involving men.
According to the U.S. Census estimate, there were 163,073,046 males as
of 2020. See https://www.census.gov/quickfacts/fact/table/US/PST045
219#PST045219 (last visited Dec. 15, 2021). That means that only
0.000001% of the male population committed a mass shooting. And
even that miniscule percentage is still inflated because it assumes a static
denominator based on the male population as of 2020 instead of all males
alive since 1966.
74 JONES V. BONTA
Court acknowledged the statistical disparity but held that the
state cannot use “a gender line as a classifying device.” Id.
at 201. Even though that state law would have likely saved
thousands of lives—almost certainly more so than
California’s law—the Court invalidated it because good
intentions alone cannot salvage a law.
So, too, here. To accept the state’s argument would
mean allowing the government to restrict individuals’
enumerated constitutional rights based solely on their group
membership. Unlike other gun-control laws that target a
person’s specific and individual characteristics or actions
(e.g., commission of felony, mental illness), California’s law
strips individuals of their fundamental constitutional rights
based solely on what other people in their group may have
committed in the past. That is antithetical to the very nature
of individual rights and leads us down a dark path. Cf.
Stanley v. Illinois, 405 U.S. 645, 656 (1972) (the Bill of
Rights protects the “citizenry from overbearing concern for
efficiency and efficacy that may characterize praiseworthy
governmental officials no less, and perhaps more, than
mediocre ones.”).
We also do not typically limit constitutional rights based
on the age of adults. Young adults have the same
constitutional rights as the middle-aged or the elderly—even
if some of them may not necessarily have the wisdom or
judgment that age and experience can bring—for the same
reason that we do not limit fundamental rights based on
supposed intelligence, maturity, or other characteristics. We
thus allow 18-year-olds to join the military and lay down
their lives in defense of our freedoms. We even allow
minors to take actions that their parents may strongly
oppose: the Supreme Court has held that parents and the
government must yield to the wishes of, say, a 14 or 15-year-
JONES V. BONTA 75
old who wants an abortion. Bellotti v. Baird, 428 U.S. 132
(1976).
None of this is to downplay the tragedy of gun violence.
Although we must remain impartial as judges, we are
citizens, too. And whenever we hear of gun violence, our
stomachs sink and our hearts break for those who have lost
families or friends in these terrible and tragic events. But
only a tiny number of people abuse their rights and wield
guns for unlawful violence. Such cold numbers admittedly
offer little solace to those who have lost loved ones because
of gun violence, but it does provide a perspective on whether
we should restrict a constitutional right for the larger
population based on a minuscule percentage of the populace
who abuses that right.
Our Constitution provides a guarantee of our rights and
freedoms. For the most part, people exercise their rights in
responsible and productive ways. A tiny percentage,
however, does not. But we should not sanction restricting a
constitutional right by solely focusing on the few who abuse
it.
As judges and lawyers, we revere the First Amendment
as a core fundamental right. And rightfully so: It has allowed
Americans to protest unjust wars abroad as well as racism
and other injustices on our soil, changing this country for the
better. But in our paeans to the First Amendment, we
sometimes forget that the right also allows the people to do
horrendous things. The First Amendment thus empowers
Nazis to march down Main Street in the predominantly
Jewish suburb of Skokie. See National Socialist Party v.
Village of Skokie, 432 U.S. 43, 43–44, (1977). It also allows
amoral and perhaps immoral businesspeople to invoke the
majesty of our Constitution to market despicable
videogames to minors, even though they depict people being
76 JONES V. BONTA
“dismembered, decapitated, disemboweled, set on fire, and
chopped into little pieces,” and encourage players to engage
in “‘ethnic cleansing’ [of] . . . African-Americans, Latinos,
or Jews” and to “rape a mother and her daughters” in the
videogames. Brown v. Entertainment Merchants Ass’n,
564 U.S. 786, 789–804 (2011) (invalidating law restricting
violent videogames).
But we do not impinge on the First Amendment based on
the outlier actions of a few who may abuse that right. Nor
should we with the Second Amendment. Cf. Jackson v. City
and Cty. of San Francisco, 746 F.3d 953, 960 (9th Cir. 2014)
(the Second Amendment “inquiry bears strong analogies to
the Supreme Court’s free-speech caselaw”); Ezell v. City of
Chicago, 651 F.3d 684, 706–07 (7th Cir. 2011) (“Heller and
McDonald suggest that First Amendment analogues are
more appropriate, and . . . have already begun to adapt First
Amendment doctrine to the Second Amendment context”).
In sum, we cannot allow good intentions to trump an
enumerated and “fundamental right” deeply rooted in the
history and tradition of this country. See McDonald,
561 U.S. at 778.
JONES V. BONTA 77
STEIN, District Judge, dissenting in part:
While the majority was correct to apply intermediate
scrutiny to the long gun regulation enumerated in Senate Bill
1100 and to affirm the district court’s denial of the
preliminary injunction, it erred in applying strict scrutiny to
and reversing the district court with respect to Senate Bill
61’s semiautomatic centerfire rifle 1 regulation. On that
basis, I concur with the majority’s holding and reasoning
with respect to the long gun regulation and dissent from its
holding and reasoning with respect to the semiautomatic rifle
regulation. Accordingly, this dissent deals solely with the
majority’s treatment of the semiautomatic rifle regulation.
Although the question of “whether the challenged law
burdens conduct protected by the Second Amendment” – the
first step in the proper two-step framework – is debatable,
the most significant flaw in the majority’s analysis arises
under the second step, i.e., the appropriate tier of scrutiny.
See Fyock v. Sunnyvale, 779 F.3d 991, 996 (9th Cir. 2015).
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
1
I generally refer to semiautomatic centerfire rifles as
“semiautomatic rifles” for ease of reference, as do my colleagues in the
majority.
78 JONES V. BONTA
California’s public policy objectives. I shall attempt to
elucidate these conclusions.
I.
In 2018, California legislators amended California Penal
Code Section 27510, which regulates the sale of firearms to
persons aged 18 through 20. 2 The amendment, Senate Bill
1100 (“the long gun regulation”), introduced age limitations
on the sale or transfer of long guns. 2017 California Senate
Bill No. 1100, California 2017–2018 Regular Session.
Specifically, the long gun regulation prohibits federally
licensed firearms dealers (“FFLs”) from selling or
transferring long guns to young adults. However, the long
gun regulation contains exceptions, removing the
regulation’s applicability to young adults who have a
hunting license; are peace officers, active federal officers
and law enforcement officers; and are active or retired
members of the military. Id.
Then, on April 27, 2019, a 19-year-old opened fire with
a semiautomatic rifle, a subset of long gun, killing one and
injuring three others at a synagogue in Poway, California.
John Wilkens, Kristina Davis, and Teri Figueroa, One
Dead, Three Injured in Poway Synagogue Shooting, SAN
DIEGO UNION-TRIB. (April 27, 2019), https://www.sandie
gouniontribune.com/news/public-safety/story/2019-04-27/
reports-of-several-people-shot-at-poway-synagogue; Cheri
Mossburg, Poway Synagogue Shooter Sentenced to
Second Life Sentence, CNN (Dec. 28, 2021), https://www.
cnn.com/2021/12/28/us/poway-synagogue-shooter-senten
I refer to individuals who are 18 or older but not yet 21 years old
2
as “young adults” for ease of reference, as do my colleagues in the
majority.
JONES V. BONTA 79
ced/index.html. In response, California’s legislature passed
Senate Bill 61 (“the semiautomatic rifle regulation”), which
amended Section 27510 further to remove the hunting
license exception for young adults to purchase
semiautomatic centerfire rifles. Senate Bill No. 61,
California 2019–2020 Regular Session.
Aside from the explicit exceptions contained in section
27510, California has preserved several avenues for young
adults to possess and use long guns, including semiautomatic
rifles. Contrary to plaintiffs’ contentions, section 27510 does
not regulate possession or use; rather, it merely regulates the
purchase of firearms through FFLs. California emphasizes
that, as long as young adults follow otherwise applicable
California laws, they may use long guns, including
semiautomatic rifles for self-defense in the home or
elsewhere and for a number of other lawful purposes.
Indeed, the challenged regulations permit acquisition
and loan of long guns, including semiautomatic rifles, in
several ways. For instance, young adults may receive long
guns from immediate family “by gift, bequest, intestate
succession, or other means from one individual to
another[.]” Cal. Penal Code §§ 16720, 27505, 27585. Young
adults may also be loaned firearms, including handguns,
from a wide range of people for varying periods of time, see
Cal. Penal Code §§ 27880, 27885, or for the entirety of a
hunting season if they are licensed hunters. Cal. Penal Code
§ 27950. California provides examples of other forms of
acquisition that are untouched by the challenged regulations
in its briefings. In sum, neither of the regulations we consider
here are categorical bans on young adults’ possession or
acquisition of long guns, including semiautomatic rifles.
80 JONES V. BONTA
II.
“[I]ndividual self-defense is ‘the central component’ of
the Second Amendment right,” and the need for self-defense
“‘is most acute’ in the home.” McDonald v. City of Chicago,
561 U.S. 742, 767 (2010) (quoting District of Columbia v.
Heller, 554 U.S. 570, 599 (2008)). However, the Second
Amendment does not grant the right to “carry any weapon
whatsoever in any manner whatsoever and for whatever
purpose.” Heller, 554 U.S. at 626. In the same vein, it is clear
that “the right secured by the Second Amendment is not
unlimited.” Id. In Heller, the Supreme Court struck down
Washington, D.C.’s complete ban on the possession or use
of handguns, holding that a categorical prohibition of use in
the home of the most-favored type of firearm, the handgun,
was inconsistent with the Second Amendment. Id. at 635.
However, the Supreme Court made clear that “nothing . . .
should be taken to cast doubt on” a variety of laws affecting
the right to bear arms, including “laws imposing conditions
and qualifications on the commercial sale of arms.” Id.
at 626–27. The Court also clarified that its list of
“presumptively lawful regulatory measures . . . does not
purport to be exhaustive.” Id. at 627 n. 26.
To discern the finite limits on the Second Amendment
right, this Circuit has developed a two-step framework.
Young v. Hawaii, 992 F.3d 765, 783 (9th Cir. 2021). First,
we must ask “whether the challenged law burdens conduct
protected by the Second Amendment.” Fyock, 779 F.3d
at 996. To answer this question, we must assess “historical
understanding of the scope of the right.” Silvester v. Harris,
843 F.3d 816, 821 (9th Cir. 2016). If the restriction “can be
traced to the founding era” or is the “subject of longstanding,
accepted regulation,” it may be upheld without proceeding
JONES V. BONTA 81
to the second step of the framework. Id.; Fyock, 779 F.3d
at 997.
If this question is answered affirmatively, the analysis
proceeds to the second step, which entails selecting the
appropriate tier of scrutiny. To so determine, we must assess
“how close the law comes to the core of the Second
Amendment right,” and “the severity of the law’s burden on
that right.” Mai v. United States, 952 F.3d 1106, 1115 (9th
Cir. 2020). If a law “implicates the core of the Second
Amendment right and severely burdens that right,” we must
apply strict scrutiny; otherwise, we apply intermediate
scrutiny. Silvester, 843 F.3d at 821. The test for intermediate
scrutiny is as follows: 1) the government must have a
“significant, substantial, or important” objective, and
2) there must be “a reasonable fit between the challenged
regulation and the asserted objective.” United States v.
Chovan, 735 F.3d 1127, 1139 (9th Cir. 2013).
A.
First, we must “determine whether the right [of young
adults to purchase or receive transfer of semiautomatic rifles
from FFLs] is protected by the Second Amendment.” Young,
992 F.3d at 784. As the majority recognizes, “California
regulates young adults’ commerce in firearms, not their
possession.” Majority at 19. It is from this baseline that the
majority conducts its historical analysis, considering “the
history of young adults’ right to keep and bear arms
generally.” Id. And, from there, its review of the historical
record produces the conclusion that “the Second
Amendment protects young adults’ right to keep and bear
arms.” Id. at 29.
The majority contends that, by restricting young adults’
commerce through the semiautomatic rifle regulation’s
82 JONES V. BONTA
prohibition on sales to young adults by FFLs, young adults
cannot “obtain arms,” and thus, their “right to keep and bear
arms [is] meaningless.” Majority at 20. However, by 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 from selling or
transferring semiautomatic rifles to young adults. 3 As the
district court reasoned, “[t]he only complete ban is for any
FFL to sell, deliver, or supply a handgun to a [y]oung
[a]dult.” Jones v. Becerra, 498 F. Supp. 3d 1317, 1328 (S.D.
Cal. 2020). 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. See id. It
also allows “individuals between the ages of 18 and 20 . . .
[to] possess semi-automatic rifles if they are members of law
3
The majority insists that the Second Amendment right includes the
ability to purchase firearms. In doing so, it cites to only two precedents,
this Court’s decisions in Bauer v. Becerra, 858 F.3d 1216 (9th Cir.
2017), and Teixeira v. County of Alameda, 873 F.3d 670 (9th Cir. 2017).
To be clear, neither of these precedents stands for the conclusion that the
right to bear arms includes the right to purchase them. In Bauer, in
response to the plaintiff’s argument that the core Second Amendment
right included a right to purchase firearms, this Court set aside the
argument by stating, “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.” 858 F.3d at 1222. Moreover, the
semiautomatic rifle regulation we consider here is a prohibition on the
sale by FFLs to young adults. This Court in Teixeira held that “the
Second Amendment does not independently protect a proprietor’s right
to sell firearms.” 873 F.3d at 690. I do not contest that the prohibition on
FFLs selling semiautomatic rifles to young adults is directly tied to
young adults’ ability to purchase semiautomatic rifles. However, while
the Second Amendment right surely protects the right to possess and use
firearms, the majority’s inferential leap to the assumption that it protects
the right to purchase firearms goes too far.
JONES V. BONTA 83
enforcement, active duty members of the Armed Forces . . .
or active reserve components of the United States.” Id. To
be sure, the semiautomatic rifle regulation does indeed
restrict the ability of young adults to purchase semiautomatic
rifles from FFLs. But to classify it as a ban without
qualification is a patent misreading of the statutory text.
Given the statute’s several qualifications and
exemptions, I disagree with the majority’s conclusion that
the semiautomatic rifle regulation constitutes a ban on
commerce and conclude instead that the regulation is
“consistent with a longstanding tradition of targeting select
groups’ ability to access and to use arms for the sake of
public safety.” Nat’l Rifle Ass’n of Am., Inc. v. Bureau of
Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185,
203 (5th Cir. 2012) (“NRA”), cert. denied, 571 U.S. 1196
(2014). California highlights the Fifth Circuit’s review of
founding-era attitudes in NRA, pointing out that the age of
majority at common law was 21 years old. Id. at 201; see
also Infancy, BLACK’S LAW DICTIONARY (10th ed. 2014)
(“Every person is, at the common law, considered an infant,
or minor, until he has reached the age of twenty-one years
. . . .”) (quoting Lewis Hochheimer, A Treatise on Law
Relating to the Custody of Infants 1 (2d ed. 1891)).
Moreover, the historical record is replete with laws
restricting the possession by and sale of firearms to minors.
See Possession by, Use of, and Sales to Minors and Others
Deemed Irresponsible, Repository of Historical Gun Laws,
DUKE CTR. FOR FIREARMS LAW (last viewed May 4, 2022),
https://tinyurl.com/ycknv84y (describing 92 historical
restrictions on minor firearm possession and commerce in
45 states).
I also take issue with the majority’s repeated reference to
the historic age of militia service—around 16 years—to
84 JONES V. BONTA
support the notion that young adults have a Second
Amendment right to bear arms. Majority at 23. Despite its
insistence that “[t]he right is not conditioned on militia
service,” id. at 31 (emphasis removed), the majority makes
the following syllogism: “[t]he Second Amendment refers to
the militia, and young adults had to be in the militia and bring
their own firearms. This reference implies at least that young
adults needed to have their own firearms.” Id. at 30. In
drawing this conclusion, the majority makes the same
mistake as plaintiffs in confusing “the age for military
service with the separate question of the age at which society
can draw a line at the sale of firearms to minors.” Regardless,
the district court reminds us that even “[m]ilitias were well
regulated by each state in the Founding Era.” Jones, 498 F.
Supp. 3d at 1327. For example, “members of the militia were
required to meet regularly for weapons inspection and
registration, and members who did not show up with the
required equipment could be fined.” Id. The lower court was
correct to deduce that the regulations on militia duty
“demonstrate that as far back as the Founding Era, firearm
regulations were considered necessary and an individual’s
right to firearm possession came with obligations to ensure
public safety.” Id. If young adults were historically members
of the militia, then these regulations would have applied
equally to them.
Nevertheless, much of this back and forth is of limited
value. In reviewing historical sources, “we are likely to fall
short in some way.” Young, 992 F.3d at 785. Indeed, “the
courts of appeals have spilled considerable ink in trying to
navigate” the historical parameters of the Second
Amendment as set forth in Heller. Pena v. Lindley, 898 F.3d
969, 976 (9th Cir. 2018). One must acknowledge that
historical review in line with an originalist understanding of
constitutional rights tends to produce different
JONES V. BONTA 85
interpretations and conclusions depending on the level of
generality from which the analysis begins. See generally
Peter J. Smith, Originalism and Level of Generality, 51 GA.
L. REV. 485 (2017). Moreover, “the historical record [is]
mixed” and as jurists we must be careful not to “pick[] [our]
friends and come to a fore-ordained conclusion” on the
scope of the Second Amendment. See Young, 992 F.3d at
822–23. Therefore, I will “follow [the] well-trodden and
‘judicious course’” and “assume without deciding” that the
semiautomatic rifle regulation burdens conduct protected by
the Second Amendment. See Pena, 898 F.3d at 976. I now
turn to the majority opinion’s flawed determination of the
appropriate tier of scrutiny to be applied to the
semiautomatic rifle regulation.
B.
It bears repeating that “we are guided by a longstanding
distinction between laws that regulate the manner in which
individuals may exercise their Second Amendment right,
and laws that amount to a total prohibition of that right.”
Pena, 898 F.3d at 977. On one hand, “[s]trict scrutiny applies
only to laws that both implicate a core Second Amendment
right and place a substantial burden on that right.” Duncan
v. Bonta, 19 F.4th 1087, 1103 (9th Cir. 2021) (quoting Mai,
952 F.3d at 1115). For instance, a “total prohibition” or a law
that “bar[s] firearm possession completely” would likely
merit strict scrutiny. Pena, 898 F.3d at 977; Silvester, 843
F.3d at 827. On the other hand, “[i]ntermediate scrutiny is
appropriate if the regulation at issue does not implicate the
core Second Amendment right or does not place a
substantial burden on that right.” Fyock, 779 F.3d at 998–99.
Indeed, there is “near unanimity in the post-Heller case law
that when considering regulations that fall within the scope
86 JONES V. BONTA
of the Second Amendment, intermediate scrutiny is
appropriate.” Silvester, 843 F.3d at 823.
The first question is whether the challenged law impacts
the “core” Second Amendment right to defend oneself in the
home. See Heller, 554 U.S. at 629; Fyock, 779 F.3d at 999.
The majority urges that the semiautomatic rifle regulation
does indeed implicate that “core” Second Amendment right.
Neither plaintiffs nor the majority cite to any sources
regarding the utility, practicality, or effectiveness of
semiautomatic rifles for home self-defense. Nevertheless,
regardless of whether the regulation does or does not
implicate the “core of the Second Amendment,” strict
scrutiny is inapposite because the regulation does not impose
a “substantial burden.” See Fyock, 779 F.3d at 999.
The majority disagrees on this point, contending that
strict scrutiny applies to the semiautomatic rifle regulation
because it lacks the hunting license exception encompassed
by the long gun regulation. Majority at 37. In the majority’s
view, the law here amounts to a near-total prohibition on
young adults’ ability to obtain semiautomatic rifles, and
given that this Court has “never applied intermediate
scrutiny to a ban like this,” strict scrutiny must apply.
Majority at 39.
However, as previously limned, the semiautomatic rifle
regulation is far afield from being a total or even near-total
prohibition on the right to defend oneself in the home. See
infra Part II.A. The district court and California have
repeatedly highlighted the numerous exemptions for FFL
transfers and non-FFL avenues still available to young adults
to acquire firearms, including semiautomatic rifles. See
Jones, 498 F. Supp. 3d at 1328. Furthermore, the regulation
“leaves open alternative channels for self-defense in the
home,” primarily by allowing young adults with hunting
JONES V. BONTA 87
licenses to purchase other types of long gun from FFLS.
Jackson v. City and County of San Francisco, 746 F.3d 953,
964 (9th Cir. 2014).
The majority counters that allowing intrafamily transfers
while prohibiting purchases “makes young adults’ Second
Amendment rights conditional on the rights of others.”
Majority at 41. While the regulation certainly places
conditions on the rights of young adults to own
semiautomatic centerfire rifles, laws that place conditions on
or regulate the manner in which persons may possess
firearms are commonly upheld. See, e.g., Silvester, 843 F.3d
at 827–29; Pena, 898 F.3d at 978, 986. We have no reason
to doubt that the vast majority of young adults aged 18 to 21
can secure semiautomatic centerfire rifles through
intrafamily transfer. Indeed, the challenge here is a facial
one, and the likely widespread availability of intrafamily
transfers to California’s young adults suggests that the
burden here is not a “severe” one for the purposes of
selecting a tier of scrutiny.
And, importantly, “unlike regulations that amount to
functional prohibitions on the sale of arms, this [regulation]
is of a temporary duration as to potential purchasers—it
evaporates once the would-be purchaser turns 21.”
Hirschfeld v. Bureau of Alcohol, Firearms, Tobacco &
Explosives, 5 F.4th 407, 462 (4th Cir. 2021) (Wynn, J.,
dissenting), vacated as moot, 14 F.4th 322 (4th Cir. 2021).
“The narrow ambit” of a regulation such as the one we are
considering “militates against strict scrutiny.” NRA,
700 F.3d at 205.
Finally, plaintiffs’ classification of the semiautomatic
rifle regulation as a complete prohibition on a class of
firearm also suffers from logical frailties. In Worman v.
Healey, which also concerned a regulation restricting the
88 JONES V. BONTA
sale and transfer of “semiautomatic assault weapons,”
plaintiffs made the same argument. 922 F.3d 26, 32 n.2 (1st
Cir. 2019). The First Circuit rejected this argument,
reasoning thus: “the plaintiff’s ‘absolute prohibition’
argument is circular: essentially, it amounts to a suggestion
that whatever group of weapons a regulation prohibits may
be deemed a ‘class.’ By this logic . . . virtually any regulation
could be considered an ‘absolute prohibition’ of a class of
weapons.” Id.
Although Heller rejected the notion “that it is
permissible to ban the possession of handguns so long as the
possession of other firearms (i.e., long guns) is allowed,”
Heller, 554 U.S. at 629, Worman points out that the
significance of the handgun as a category of guns is critical
because it is “the quintessential self-defense weapon” and
“the most popular weapon chosen by Americans for self-
defense in the home.” Id.; see Worman, 922 F.3d at 36. This
rationale cannot extend to semiautomatic rifles, for they are
not handguns and therefore neither the quintessential nor the
most popular self-defense weapons; nor is the regulation
here anywhere near as sweeping as the handgun ban in
Heller. 4 The majority nevertheless contends that strict
4
The particular difference in scope between the District of
Columbia’s categorical firearm ban in Heller and the semiautomatic rifle
regulation here is worth subjecting to explicit comparison. D.C. made it
illegal to carry an unregistered handgun and simultaneously prohibited
the registration of handguns; it also required residents who owned
handguns lawfully to keep them unloaded and dissembled or secured by
a trigger lock in the home, essentially rendering them inoperable in the
event of an unforeseen emergency. See Heller, 554 U.S. at 574–76. Here,
by contrast, the semiautomatic rifle regulation prohibits FFLs from
selling or transferring semiautomatic rifles to young adults who do not
fall within one of its exceptions for law enforcement or military
members. The law in Heller “totally ban[ned] handgun possession in the
home.” Id. at 628. The challenged law here does no such thing. As the
JONES V. BONTA 89
scrutiny is appropriate because, in its view, only three
classes of gun are suitable for self-defense in the home:
handguns, semiautomatic centerfire rifles, and shotguns.
Majority at 39–40. Because the sale of handguns to young
adults is banned by another law, Cal. Penal Code § 27505,
18 U.S.C. § 922(b)(1), and the law here places significant
restrictions on the sale of semiautomatic centerfire rifles to
young adults, the only suitable category of firearms for self-
defense available to young adults is the shotgun. According
to the majority, “this law takes away one of the two [other
than the handgun] remaining practical options for self-
defense in the home,” and that it is thus “a severe burden.”
Majority at 40–41.
While I do not dispute that the semiautomatic rifle
regulation places burdens on young adults who wish to
purchase or otherwise receive semiautomatic centerfire
rifles from FFLs, I do not find that it is a “severe burden” on
young adults’ Second Amendment rights. Even if the
regulation means most young adults are “unable to purchase
a subset of semiautomatic weapons” from FFLs, this “does
not significantly burden the right to self-defense in the
home.” Pena, 898 F.3d at 978. As 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. Because the regulation
does not remove young adults’ ability to acquire other forms
Fifth Circuit noted, “unlike the D.C. ban in Heller, this ban does not
disarm an entire community, but instead prohibits commercial
[semiautomatic rifle] sales to 18-to-20-year-olds—a discrete category.”
NRA, 700 F.3d at 205.
90 JONES V. BONTA
of long gun, and simultaneously maintains several methods
for acquisition and use of semiautomatic rifles, the
application of strict scrutiny is inappropriate. The more
appropriate tier of scrutiny to be applied here is intermediate
scrutiny.
C.
Now, I shall assess whether the semiautomatic rifle
regulation survives intermediate scrutiny by analyzing the
majority’s determination that the regulation does not. Then,
I shall apply intermediate scrutiny in a manner that, I believe,
comports more properly with this Circuit’s precedents.
Intermediate scrutiny has two requirements: first, that
“the government’s stated objective . . . be significant,
substantial, or important”; and second, “a reasonable fit
between the challenged regulation and the asserted
objective.” Chovan, 735 F.3d at 1139. California is “not
required to show that [the regulation] is the least restrictive
means of achieving its interest,” but rather, that the
regulation “promotes a ‘substantial government interest that
would be achieved less effectively absent regulation.’”
Fyock, 779 F.3d at 1000 (quoting Colacurcio v. City of Kent,
163 F.3d 545, 553 (9th Cir. 1998)).
1.
California’s objective of promoting public safety and
reducing gun violence is a significant, important one. I
disagree with the majority’s conclusion that the law is not a
“reasonable fit” with this objective.
The majority refers to the origins of the Second
Amendment intermediate scrutiny test within the First
Amendment and chides the judges of this Circuit for
JONES V. BONTA 91
neglecting “one-half of the inquiry.” Majority at 46. In the
First Amendment context, intermediate scrutiny “does not
mean that a time, place, or manner regulation may burden
substantially more speech than is necessary to further the
government’s legitimate interests.” Ward v. Rock Against
Racism, 491 U.S. 781, 789 (1989). According to the
majority, “[t]his is the essence of the intermediate scrutiny
test: the regulation must . . . accomplish[] something . . .
[and] not burden far more speech than is necessary.”
Majority at 46. And, in my colleagues’ view, “[w]hen we
transplanted intermediate scrutiny from the First
Amendment to the Second, . . . we did not bring the does-
not-burden-conduct-more-than-necessary part.” Id. at 46–
47. In so doing, the majority contends, “we neglect to
consider fit at all.” Id. at 47.
Although Second Amendment intermediate scrutiny is
no doubt drawn from the First Amendment context, the
majority’s analysis makes no distinction between the cluster
of rights protected by the First Amendment and those
protected by the Second. It goes without saying that the First
Amendment, in protecting some of our most cherished civil
and political rights, demands exacting scrutiny of
government regulations placing limits on free speech. The
right to bear arms, by contrast, is a core right whose direct
exercise can lead to bodily injury or death. Although
intermediate scrutiny in the Second Amendment context is
no less exacting than that of the First, the distinction between
the rights protected by the First Amendment and the Second
is stark. It is not an “after-the-fact rationalization”, Majority
at 48, to conclude that the reasonableness inquiries under the
First and Second Amendments are distinctive due to the
different rights each protects, and that Second Amendment
reasonableness must more often account for public safety
concerns. And even despite these substantive differences in
92 JONES V. BONTA
the rights protected under the First and Second
Amendments, speech “directed to inciting or producing
imminent lawless action” is one of the very few categories
of expression not protected by the First Amendment. See
Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). Perhaps
this Court’s precedents were purposeful, rather than
neglectful, in tailoring a “reasonable fit” analysis that allows
more room for consideration of the heightened physical
public safety considerations in the Second Amendment
context. “No one really knows what the right answer is with
respect to the regulation of firearms,” so courts should not
“[d]isenfranchis[e] the American people on this life and
death subject.” Kolbe v. Hogan, 849 F.3d 114, 150 (4th Cir.
2017) (Wilkinson, J., concurring).
The majority’s conflation of First Amendment
intermediate scrutiny with Second Amendment intermediate
scrutiny is not the only instance in which the majority makes
inapt comparisons with other forms of constitutional
intermediate scrutiny. Like the two judges forming the
majority in Hirschfeld’s divided panel, the majority here
draws a curious comparison between the semiautomatic rifle
regulation and the challenged law in Craig v. Boren,
429 U.S. 190 (1976). Relying on statistical comparisons, the
majority concludes that the law banning the sale of low-
alcohol beer to men considered in Craig failed to pass
intermediate scrutiny even though it was “a much better fit”
than the law we consider here. Majority at 49. The majority’s
argument is as follows: because only 2% of young men were
arrested for drunk driving, a law regulating 100% of them
was not a “reasonable fit” for the government objective of
reducing traffic fatalities in Craig. Id. at 49. Compared with
the law here, where “only 0.25% of young adults are arrested
for violent crimes,” a law regulating 100% of young adults
JONES V. BONTA 93
who don’t qualify for any exemptions is also “unlikely to be
a reasonable fit for California’s objectives.” Id. at 50.
There are multiple problems with comparing the law in
Craig with the law at issue here. First, the majority here
attempts to “calcify the flexible world of intermediate
scrutiny into a rigid statistical framework.” Hirschfeld,
5 F.4th at 479 (Wynn, J., dissenting) (internal quotation
marks omitted). Our precedents counsel against such an
approach: “[w]hen considering California's justifications for
the statute, we do not impose an ‘unnecessarily rigid burden
of proof,’ and we allow California to rely on any material
‘reasonably believed to be relevant’ to substantiate its
interests in gun safety and crime prevention.” Pena, 898 F.3d
at 979 (quoting Mahoney v. Sessions, 871 F.3d 873, 881 (9th
Cir. 2017)). Just as we are not colonial historians, we are not
statisticians, and California “must be allowed a reasonable
opportunity to experiment with solutions to admittedly
serious problems.” Id. at 980 (quoting City of Renton v.
Playtime Theatres, Inc., 475 U.S. 41, 52 (1986)).
A second major problem with the comparison to Craig
is, again, inherent to the majority’s conflation of Second
Amendment intermediate scrutiny with Fourteenth
Amendment intermediate scrutiny. Under the Fourteenth
Amendment, classifications based on gender are subjected
to heightened, intermediate scrutiny requiring an
“exceedingly persuasive justification” because “our Nation
has had a long and unfortunate history of sex
discrimination.” United States v. Virginia, 518 U.S. 515, 531
(1996) (quoting Frontiero v. Richardson, 411 U.S. 677, 684
(1973)). In contrast, a state “may discriminate on the basis
of age without offending the Fourteenth Amendment if the
age classification in question is rationally related to a
legitimate state interest.” Kimel v. Florida Bd. of Regents,
94 JONES V. BONTA
528 U.S. 62, 83 (2000). Indeed, it is well-established under
the Fourteenth Amendment that “age classification is
presumptively rational.” Id. at 84. Therefore, the majority’s
comparison of the gender classification in Craig with the
age-restrictive semiautomatic rifle regulation here is the
proverbial comparison of apples to oranges.
Beyond its inappropriate reliance on Craig, the majority
claims that the semiautomatic rifle regulation is not a
“reasonable fit” because it contains “only limited
exceptions” and “no individualized assessment,” i.e. appeals
or hearing process for young adults deemed ineligible to
purchase semiautomatic rifles from FFLs. Majority at 51.
Ultimately, these factors convince the majority that it need
not defer to the California legislature’s enactment of the
regulation. This Court has made clear, however, that “[w]e
ask only whether the evidence ‘fairly supports’ [the
California legislature’s] ‘reasonable’ conclusions.” Mai,
952 F.3d at 1118 (quoting Pena, 898 F.3d at 979–80).
“When empirical evidence is incomplete, we ‘must accord
substantial deference to [California’s] predictive
judgments.’” Id. (quoting Turner Broad Sys. v. FCC,
512 U.S. 662, 665 (1994)). 5 Although the majority faults the
5
The majority highlights the fact that in Turner, the Supreme Court
did not defer to the Government’s arguments that its statutes regulating
aspects of broadcast television were a “reasonable fit” for its objectives
under First Amendment intermediate scrutiny. Majority at 52; see
Turner, 512 U.S. at 666–68. Like many of the majority’s comparisons
with Ninth Circuit precedent and Supreme Court caselaw, the
comparison with Turner is faulty. Turner concerned the district court’s
grant of summary judgment in favor of the Government, and the
Supreme Court remanded because genuine issues of material fact
remained. Id. at 668. The Supreme Court pointed out that the record was
devoid of a great deal of evidence that could establish that no genuine
issue of material fact existed, and therefore, remand was appropriate.
Here, by contrast, California points to numerous statistics to substantiate
JONES V. BONTA 95
courts of this Circuit for failing to do a proper “reasonable
fit” analysis in past decisions, it is clear that the majority is
holding California to an evidentiary standard that is not
required under Second Amendment intermediate scrutiny.
2.
Having concluded that the majority misapplies
intermediate scrutiny to the semiautomatic rifle regulation, I
will now apply that test in a manner that, I believe, hews
more closely to this Court’s jurisprudence. Having already
determined that California’s objectives of enhancing public
safety and reducing gun violence are important, the
remaining question is whether the law is a “reasonable fit”
for those objectives. In answering this question, I intend to
focus on evidence California provides and that the majority
makes little to no mention of at all. The facts surrounding
young adults’ disproportionate commission of violent gun
crime; the increasing understanding of the relative
immaturity of young adults; and the exemptions and
numerous channels to possess and use semiautomatic rifles
open to young adults are sufficient to demonstrate that the
regulation is indeed a “reasonable fit.”
To start, California highlights the fact that young adults
are disproportionately more likely to commit violent crimes
in general and gun violence specifically than older adults.
While 18 to 20-year-olds comprise less than 5% of the U.S.
population, they account for more than 15% of reported
its important objective specifically surrounding the fact that young adults
disproportionately commit violent crime and are still developmentally
maturing. Unlike in Turner, where the Supreme Court highlighted the
lack of evidence supporting Congress’s enactments, the majority gives
here short shrift to the ample evidence California provides in support of
its objectives.
96 JONES V. BONTA
homicide and manslaughter arrests. In California alone,
18 to 19-year-olds account for roughly 12% of the state’s
homicide arrests. Id. According to the gun violence
prevention non-profit organization, Everytown for Gun
Safety, 18 to 20-year-olds commit gun homicides at a rate
three times higher than adults above the age of 21.
Everytown Research & Policy, EVERYTOWN FOR GUN
SAFETY, https://everytownresearch.org/stat/eighteen-to-20-
year-olds-commit-gun-homicides-at-a-rate-triple-the-rate-
of-those-21-and-years-older/ (2018). Additional studies
show that at least one in eight victims of mass shootings
from 1992 to 2018 were killed by an 18 to 20-year-old;
additionally, assault rifles, including semiautomatic rifles,
were responsible for approximately 45% of fatalities and
62% of overall victims of mass shootings. Joshua D. Brown
and Amie J. Goodin, Mass Casualty Shooting Venues, Types
of Firearms, and Age of Perpetrators in the United States,
1982–2018, 108 AM. J. PUB. HEALTH 1385, 1386 (2018).
Indeed, California had heightened motivation to enact
the semiautomatic rifle regulation after a 19-year-old
committed a mass shooting at a synagogue in Poway, a
suburb of San Diego. By the end of July 2019, there had been
32 shootings that year in California in which four or more
people were injured or killed. California also provides
evidence that the vast majority of firearms used in mass
shootings are purchased legally from FFLs. The state
legislature manifestly was entitled to have considered the
disproportionate commission of violent gun crimes by young
adults, the fact that most mass shooters purchase weapons
legally, and the fact that semiautomatic weapons “have been
the weapons of choice in many of the deadliest shootings in
recent history,” as eminently reasonable bases to curtail the
ability of young adults to purchase or receive transfer of
semiautomatic rifles from FFLs. Worman, 922 F.3d at 39;
JONES V. BONTA 97
see also Elzerie de Jager, Eric Goralnick, Justin C. McCarty,
et al., Lethality of Civilian Active Shooter Incidents With and
Without Semiautomatic Rifles in the United States, 320 J.
AM. MED. ASS’N 1034 (2018) (“Semiautomatic rifles are
designed for easy use, can accept large magazines, and fire
high-velocity bullets, enabling active shooters to wound and
kill more people per incident.”).
Beyond these significant safety concerns, contemporary
scientific research increasingly sheds light on the relative
immaturity and incomplete cognitive development of young
adults. California cites to evidence that young adults are less
mature than older adults, which leads them to take more risks
and behave more reactively than their elders. Young adults
are thus quicker to anger than older adults and more
vulnerable to intense mood swings and to making
instinctive, rather than considered, decisions. This cognitive
immaturity makes young adults more likely to use firearms
in situations of significant emotional arousal or perceived
threat, or other situations that require rapid, complex
information processing. Other Circuits have credited similar
evidence to uphold regulations on firearms affecting 18 to
20-year-olds. NRA, 700 F.3d at 208; Horsley v. Trame,
808 F.3d. 1126, 1133 (7th Cir. 2015). The semiautomatic
rifle regulation helps to “ensure that access to these weapons
is restricted to mature individuals who have successfully
completed safety training,” such as members of law
enforcement and the military, “furthering the public safety
objectives and ensuring that the Founding Era balancing of
Second Amendment rights with safety concerns continues
today.” Jones, 498 F. Supp. 3d at 1328.
The regulation also leaves open multiple avenues for
young adults to possess and use firearms for self-defense. As
discussed previously, see infra Part II.A, the semiautomatic
98 JONES V. BONTA
regulation leaves open exemptions for young adults with
military and law enforcement training. California highlights
the fact that, while semiautomatic rifles were popular
purchases among young adults in the past, young adults have
also purchased or received transfer of numerous other types
of long guns during the same period.
Ultimately, California provides substantial and
substantiated justifications for its enactment of the
semiautomatic rifle regulation. The evidence is sufficient to
show that the regulation “promotes a ‘substantial
government interest that would be achieved less effectively
absent regulation.’” Fyock, 779 F.3d at 1000 (quoting
Colacurcio, 163 F.3d at 553). I am quite comfortable
concluding that the semiautomatic rifle regulation satisfies
constitutional muster under intermediate scrutiny.
III.
Finally, because I find that the semiautomatic rifle
regulation withstands intermediate scrutiny, I disagree with
the majority’s conclusions that the district court erred in
finding no irreparable harm to plaintiffs, and that the district
court erred in finding that a preliminary injunction would not
be in the public interest. Finding no issue with the district
court’s legal conclusions, I review the district court’s factual
findings for clear error. Washington v. United States Dep’t
of State, 996 F.3d 552, 560 (9th Cir. 2021).
First, the majority is simply incorrect to say that the
district court conflated its analysis of the two regulations
challenged here when it ruled that young adults could still
obtain firearms under exceptions. See Jones, 498 F. Supp. 3d
at 1331. The district court was, in fact, correct that both
regulations contain the following exceptions: “[y]oung
[a]dults are not banned from acquiring all firearms, but may
JONES V. BONTA 99
qualify under an exception, or may receive transfers from
parents, grandparents, and spouses.” Id. The district court’s
finding of fact here is based on a clear, obvious reading of
the statute before us. There is no clear error here, and I would
uphold the denial of the motion for a preliminary injunction
for lack of irreparable harm.
Second, the majority errs in saying that the district court
conflated its analysis of the two regulations in finding that
the balance of interests weighed against an injunction. The
district court was, again, correct in finding that both
regulations serve to “advance public safety by limiting the
possession and use of deadly weapons to mature individuals
who have demonstrated discipline through proper training to
ensure public safety while honoring the Second Amendment
rights of these individuals.” Id. at 1332. The majority
contends that the “training” aspect only applies to the long
gun regulation because it contains an exception for young
adults with hunting licenses. However, by restricting the
purchase of semiautomatic rifles to persons with military and
law enforcement training, the semiautomatic rifle regulation
creates an exception for persons with a higher level of safety
education and training. The latter regulation’s more
restrictive ambit accords with the heightened dangerousness
of semiautomatic rifles as compared with other types of long
gun. Therefore, the district court made no conflation, and it
was not clear error for it to determine that “[t]he potential
harm of enjoining a duly-enacted law designed to protect
public safety outweighs [y]oung [a]dults’ inability to secure
the firearm of their choice without proper training.” Id.
Accordingly, I would not disturb the district court’s
decision to deny plaintiffs’ motion for a preliminary
injunction, and would affirm that court’s determination.
100 JONES V. BONTA
IV.
In sum, the district court was correct to hold that both the
long gun regulation and the semiautomatic rifle regulation
do not impermissibly burden Second Amendment rights. It
correctly applied intermediate scrutiny to both laws and
properly denied plaintiffs’ request for a preliminary
injunction. Therefore, I would affirm the district court’s
ruling in full and respectfully, but decidedly, dissent from
the majority’s holding with respect to the semiautomatic rifle
regulation.