$19 Gun-Sale Fee Is Constitutional | Courthouse News Service
Wednesday, November 29, 2023
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Wednesday, November 29, 2023 | Back issues
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$19 Gun-Sale Fee Is Constitutional

SACRAMENTO (CN) - A $19 fee on every gun sale in California to fund a firearm enforcement program run by the state Department of Justice is constitutional, a federal judge ruled.

U.S. District Judge Lawrence O'Neill ruled Monday that the fee falls outside of the scope of the Second Amendment.

Anyone who buys a gun from a federally licensed firearm vendor in California must pay the Dealer's Record of Sale (DROS) fee before they can receive the firearm.

The fees are the primary funding source for the Armed Prohibited Persons System (APPS), which cross-references five databases to find people who legally purchased handguns and assault weapons since 1996 and those prohibited from owning or possessing firearms.

The system is designed to keep criminals who are not allowed to own guns from buying handguns or registering assault weapons.

Lead plaintiff Barry Bauer, the National Rifle Association et al. claimed that the fee is a violation of their Second Amendment rights to keep and bear arms.

"According to plaintiffs, this case presents the issue of 'whether the state can mandate that all law-abiding individuals who seek to exercise their right to acquire firearms bear the full cost of a law enforcement scheme designed to ferret out and confiscate firearms from those who unlawfully possess them,'" O'Neill wrote.

The plaintiffs called use of the fee revenue to fund law enforcement "unconstitutional, because the criminal misuse of firearms is not sufficiently related to the fee payers' activities, i.e., lawful firearm transactions."

But the state said "that there is nothing unconstitutional about imposing a fee on the exercise of a constitutional right when the fee is designed to defray the broad administrative costs of regulating the protected activity."

Although the gun owners operated on the assumption that regulations on firearms commerce fall within the scope of the Second Amendment, they did not provide any binding authority to back their assertion, O'Neill found, noting that courts in the 9th Circuit and elsewhere are split on the issue.

"As plaintiffs strenuously argue, the DROS fee is a condition on the sale of firearms: unless and until an individual pays the DROS fee, he/she may not purchase and possess the firearm. The DROS fee, therefore, is a presumptively lawful regulatory measure. Accordingly, the DROS fee is constitutional because it 'falls outside the historical scope of the Second Amendment," O'Neill wrote.

"In any event, the DROS fee imposes only a $19.00 fee on firearm transactions. Under any level of scrutiny, the DROS fee is constitutional because it places only a marginal burden on 'the core of the Second Amendment,' which is 'the right of law-abiding, responsible citizens to use arms in defense of hearth and home.'"

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