California gun owners take privacy fight over purchase data to Ninth Circuit

SAN DIEGO (CN) — A group of California gun owners told a Ninth Circuit panel on Friday that a law allowing the state to share personal information about people who buy guns with firearms violence researchers violates their Second Amendment rights and their privacy.  

“The dissemination of confidential firearm information to third parties violates the constitutional rights of millions of Californians,” said Cameron Schlagel, the attorney for the gun owners.

Signed by Governor Gavin Newsom in 2021, AB 173 allows the state to share gun owners’ personal information with research institutions in the state — including gun owners' names, address and ages — collected with every firearms sale in California. The information goes into the “Automated Firearms System” which, with authorization from the state attorney general, can be used by the California Firearm Violence Research Center at UC Davis, Stanford University, and any other “bona fide research institution” to study gun violence prevention, shooting accidents, and suicides.

Five anonymous California gun owners sued the state, claiming the law irreparably harmed gun owners' Second Amendment rights.

In January 2023, U.S. District Judge Larry Burns rejected their argument and found the gun owners failed to state a claim, granting state Attorney General Rob Bonta's request to dismiss the lawsuit. The anonymous gun owners then appealed Burns' decision to the Ninth Circuit. 

When someone goes to a store to buy beer, the store collects your birthdate, “so what makes it particularly sensitive, the name, date of birth, address here?,” asked U.S. Circuit Judge Salvador Mendoza Jr., a Joe Biden appointee.  

Schlagel argued that it’s not necessarily what information the government has, since most of it is publicly available information, but the fact that the state government compiled it into one database and then shared it with researchers, and that it’s a database of people just exercising their Second Amendment rights. 

“I express my 21st Amendment right when I go to buy alcohol at the liquor store. If that is disseminated, am I being injured in some way?” Mendoza asked. 

Schlagel answered "Perhaps," adding the 21st Amendment is not an enumerated right and as far as he knows, the government isn’t doing that. 

“I don’t see how the compiling is a violation of any rights,” said Senior U.S. Circuit Judge Mary M. Schroeder, a Jimmy Carter appointee.  

Schlagel answered, “The court has been very clear. It does not tolerate indirect attacks on fundamental rights to efforts to chill them,” he said. 

Sebastian Brady, an attorney for the California Department of Justice argued that the information the state collects is basic biographical information that doesn’t stop people from exercising their rights.  

“Calfironia has a serious gun violence problem, and part of the problem, as the Legislature has recognized, is because too little is known about its causes,” Brady said.

When asked by U.S. Circuit Judge Patrick Bumatay, a Donald Trump appointee, if Second Amendment rights can be chilled and if the court should apply the same logic in this case as they do to cases involving First Amendment rights or pre-Dobbs abortion rights cases, Brady argued that courts have recognized that the First Amendment “is a kind of special right, and it needs breathing room.” 

After a lengthy back and forth with Bumatay, Schroeder stepped in. 

“I thought the chilling here is their subjective reaction to what’s happening. And haven’t we said that’s not really what is happening? Whereas the First Amendment, you have something that is objectively going to affect everyone,” she said. 

“That’s right. Yes your honor, I’ll adopt that answer,” Brady said. 

On rebuttal, Schlagel said: “To Judge Schroeder’s point about how the First Amendment applies to everybody, so does this. It applies to everybody that exercises their Second Amendment rights."

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