NRA Challenge to Transfer Fee Fails in 9th Circuit

By Kimberly Strawbridge Robinson

Allocating $5 of a $19 firearms transfer fee to combat efforts against illegal firearm purchases doesn’t run afoul of the Second Amendment, the U.S. Court of Appeals for the Ninth Circuit said June 1 ( Bauer v. Becerra , 2017 BL 183907, 9th Cir., No. 15-15428, 6/1/17 ).

The court side-stepped deciding whether the “DROS fee” actually implicated Second Amendment protections. Even assuming that it does, the DROS fee would “survive heightened scrutiny,” Chief Judge Sidney R. Thomas wrote for the court.

That heightened level of scrutiny was only intermediate—not strict—scrutiny, the court said, because the burden on Second Amendment rights was “exceedingly minimal.” The plaintiffs, including the National Rifle Assocation, have “neither alleged nor argued that the $19 DROS fee—let alone the smaller, $5 challenged portion of the fee—has any impact on the plaintiffs’ actual ability to obtain and possess a firearm,” the court said.

The challenged law, California Penal Code §28225, satisfies that intermediate scrutiny, the court said.

California’s objective—targeting illegal possession of firearms, which is a “substantial danger to public safety”—is a sufficiently “important government interest,” the court said. It noted that there were an estimated “18,000 armed prohibited persons in California at the time the law was passed.”

Moreover, there is a “reasonable fit” between the regulation and that asserted objective,” the court said. It emphasized that intermediate scrutiny doesn’t require that the regulation be the “least restrictive means” of achieving the state’s goals.

Judges Ferdinand F. Fernandez and Mary H. Murguia joined the opinion.

Bancroft PLLC, Washington, and Michel & Associates P.C., Long Beach, Calif. represented the plaintiffs challenging the fee. The Office of the California Attorney General, Sacramento, Calif., represented the state.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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