California defends one-gun-a-month law at Ninth Circuit

SAN DIEGO (CN) — The state of California told a Ninth Circuit panel on Wednesday that a ban on buying more than one gun in a 30-day period doesn’t violate people’s Second Amendment rights, it just controls the pace they can acquire them to try to prevent criminals from buying guns in bulk. 

“Do arms traffickers buy two at a time? It seems like no,” said U.S. Circuit Judge Danielle J. Forrest, a Donald Trump appointee. 

The state’s law is a commercial regulation on when you can own a gun, not if you can own a gun, argued Jerry Yen, an attorney with the state’s Attorney General’s office.

The law, Yen continued, is about whether the government can regulate measures to stop straw purchasers — those who buy guns for someone who can’t or won’t buy themself —and gun runners from selling guns to criminals and to protect the public within the scope of the Second Amendment.

“It would be absurd to think that a government could say you can only buy one book a month because we want to make sure that you really understand the books you read, or you could only attend one protest a month because, you know, there’s some societal drawbacks from having protests so we want to kind of space those out. People would say that’s absurd,” Forrest said. 

U.S. Circuit Judge John B. Owens, a Barack Obama nominee, presented Yen with a scenario involving the owner of a small liquor store being threatened by a gang at both his store and his house. If the owner didn’t already own a gun and now wanted two guns, one for their home and one for their business for self-defense, under the state’s law, the owner would have to buy one and have to wait 30 days to buy the other one, which seems to prevent them from being able to defend themselves under the Second Amendment, Owens said. 

Yen agreed, but the plaintiffs in this case — a group of gun owners, gun sellers, and gun rights organizations filed suit against the state in 2020, claiming the law violated their Second Amendment rights — already own firearms, he said.

The law isn’t a meaningful constraint, since 30 days is a short waiting period, and in the time between when the case was filed in 2020 and now, the plaintiffs could have purchased dozens of guns, he added.

“What this law is doing is targeting law-abiding individuals,” said Raymond Mark DiGuiseppe, an attorney for the gun rights group. 

It would be absurd, DiGuiseppe said, to pass a similar law banning people from using their First Amendment rights more than once a month, like prohibiting people from buying a printing press more than once a month, or accessing Facebook, based on a theory that it’s necessary to control what they might do.  

There are also no historical analogues law regulating how often people could buy guns, DiGusieppe said. Colonial era gun laws were enacted to protect law-abiding citizens from “the dangerous people out there,” akin to contemporary laws, prohibiting selling guns to felons or mentally ill people, he said.    

Under the U.S. Supreme Court's ruling in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, any restrictions or regulations involving firearms has to be justified through a "historical analogue" — meaning, a state has to find a similar burden imposed or in existence in the past, namely when the Second Amendment was written in the late 18th century. 

In federal court in San Diego, California had presented a number of historical arguments, like that a majority of people either didn’t own a gun, or owned a single gun in the 18th century, and that a majority of people who owned multiple guns were southern plantation owners who used them to “control their source of wealth.”  

California also presented colonial era laws they argued were similar to their contemporary law, like one Virginia law regulating how much gunpowder and guns a colonist could take to any Native American town to try to prevent them from selling weapons to Native Americans.

A federal judge ultimately decided in March that the state couldn’t find a well-established historical analogue to the law, and was therefore unconstitutional. The state then appealed the ruling.  

On Wednesday, U.S. Circuit Judge Bridget Bade, a Donald Trump appointee, said if people who straw purchase weapons, which is illegal, are the target of California's law, as the state says it is, then law-abiding citizens aren’t the target of the law, they’re just affected by it as ancillaries.

DiGusieppe agreed, but said the historical analogues presented specifically targeted “bad actors,” he said.  

“Well, there’s troubling analogues based on race and restraints trying to keep people from selling firearms to Native Americans. Are those designed to target ‘bad guys’ as you put it?” Bade asked. 

The attorney argued that those laws were to restrain Native Americans and people “of concern” and perceived as being dangerous from having guns.

“It wasn’t to do anything to law abiding people,” DiGuiseppe said. 

Laws restricting Native Americans and foreigners from having guns were intended to restrict people not a part of the “political populace” from owning guns, Forrest said. 

“Here we’re talking about a law that is squarely governing the political populace of ‘we the people,’” she said about California’s law. “There’s a lot of problems with some of this history.”

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