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California’s under-21 semiautomatic gun law tossed back to lower court for review

The Ninth Circuit panel, heavy with Trump appointees, may be looking for a lower court slapdown, according to one legal expert.

SAN FRANCISCO (CN) — The Ninth Circuit has sent a lawsuit challenging California’s regulation of types of firearms that can be sold to young adults back to the lower court for review in light of the U.S. Supreme Court's recent bolstering of gun rights.

In a 4-page order Wednesday, the Ninth Circuit panel vacated its opinion reversing a lower court judge’s refusal to preliminarily block a California law barring young adults from buying semiautomatic rifles, which it also vacated. 

The panel remanded the case in light of the recent U.S. Supreme Court decision in New York State Rifle & Pistol Association, Inc. v. Bruen, which upheld the right to bear arms as protected under the U.S. Constitution.

This past May, the panel had split on the issue of whether California’s prohibition on semiautomatic rifle sales to young people unduly burdens the Second Amendment, based on U.S. District Judge M. James Lorenz’s ruling.

U.S. Circuit Judges Ryan Nelson and Kenneth Lee, both Donald Trump appointees, had ruled Lorenz should have blocked California’s ban on the sale of semiautomatic rifles to those between the ages of 18 and 21 except for some law enforcement officers and active-duty members of the military.

Nelson and Lee found Lorenz should have applied the most rigorous level of constitutional scrutiny. Nelson said the semiautomatic rifle rule’s slight exceptions amount to a blanket ban for most young people, finding it is unfair for young adults to have to be police or military officers to obtain certain firearms. 

Nelson found the law unfairly lumps all young people together, and relied on statistics that show they are disproportionately more likely to commit violent crimes, especially gun crimes. His opinion touted colonial militias and English law and custom in determining the extent of the Second Amendment’s reach, as at the time of the Second Amendment’s ratification Congress had passed the Militia Act of 1792 mandating militia duty and firearm possession for young adults. 

But the panel also found California’s separate ban on the sale of long guns to anyone under 21 without a hunting license was a reasonable fit for public safety purposes.

Dissent came from U.S. District Judge Sidney Stein, a Bill Clinton appointee, who said neither of the laws are categorical bans and both are consistent with the custom of restricting certain groups from accessing firearms for public safety reasons. 

Lawyers for the plaintiffs and California Attorney General Rob Bonta did not respond to requests for comment by press time.

Gregory Magarian, a professor of law at Washington University in St. Louis School of Law, said in an interview that he thinks the Ninth Circuit may have made this turnaround decision because the new Supreme Court ruling offered "a chance to wipe the slate clean.” 

“Now the district judge will be compelled to come out the other way, because of what the Supreme Court has said,” Magarian said. Still, he said it's possible the point is to reassert the force of the majority’s opinion. 

“It’s a way of saying, ‘We dare you to come out the way you did the first time, and if you come out the way you did the first time, we’ll slap you down again — but this time we'll slap you down harder,’” Magarian said. 

State lawmakers have been bracing for the effects of the Supreme Court’s ruling in Bruen for months. At a press conference after the ruling came down earlier this summer, Bonta — flanked by several Assembly members and state senators — said he supported Senate Bill 918, which addresses issues flagged in Bruen.

“Your right to live without fear of gun violence should not be trumped by a person’s right to carry a gun,” Bonta said.

To comply with the Supreme Court’s Bruen decision, Bonta said California would ax its own “good cause” requirement for applicants for concealed-carry weapons permits. But he pointed out the Supreme Court did affirm states’ rights to use “nonsubjective” criteria for issuing concealed weapons permits — prior arrests, convictions, restraining orders, background checks, fingerprinting, firearms training and mental health evaluations.

However, SB 918 and other gun control bills have either been heavily amended or killed outright in the recent legislative session. The former faced opposition from Assembly and Senate Republicans and failed to pass despite reconsideration.

Magarian said because both California and New York tend to have liberal state governments with a strong preference for more gun regulation compared to other states, they could try to test different regulations through the courts.

“There’s a pretty strong potential for tension here,” Magarian said. As was the case with more conservative states passing restrictive abortion regulations before Roe v. Wade was struck down, he added, “I think it’s possible California especially, and maybe New York as well, will sort of cast themselves as the activist states trying to push back on where the Supreme Court is going on gun rights.”

However, Magarian said this remand will depend on how much energy pro-gun regulation lawmakers and judges want to use on defending regulations on firearm sales to people under 21.

“The Ninth Circuit historically has been willing to put itself on the line, even if it thinks the Supreme Court might be coming down,” he said. But he also said there is a possibility that the courts and lawmakers will decide “in the cosmic scheme of things, maybe this isn't the hill we want to die on.”

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