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America’s Future Files Brief Supporting Second Amendment Rights

Courtroom Gavel with Scales of Justice

On June 4, 2024, America’s Future submitted an Amicus brief to the United States Court of Appeals for the Ninth Circuit in Nguyen, et al. v Bonta, Dkt. No. 24-2036.  In this Second Amendment case, our brief urges the Ninth Circuit to affirm the judgment of the federal district trial court striking down California Penal Code sections 27535 and 27540(f) as constitutionally impermissible and void for violating the right to keep and bear arms, as protected by the Second Amendment.

In this case, in October 2019, California Governor Gavin Newsom signed SB 61, extending the 1999 one handgun per person limit to one firearm per month. Thus, SB 61 amended California Penal Code § 27535(a) to read: “A person shall not make an application to purchase more than one firearm within any 30-day period.”  Often referred to as California’s “one gun a month” law (OGM law), the law not only regulates gun access and possession by citizens, but it also criminalizes conduct closely tethered to Second Amendment protections.

Plaintiffs-appellees filed suit seeking injunctive relief to prevent enforcement of the law, arguing that the law is constitutionally impermissible when tested against Second Amendment rights.

At the district court, the plaintiffs-appellees prevailed, and a permanent injunction against California was granted, prohibiting enforcement of the law.  Aggrieved by the injunction, California applied for an emergency stay of the injunction until the appeal process played out. The Ninth Circuit granted the stay and accepted jurisdiction of the case.

The legal framework for resolving Second Amendment challenges to state gun statutes was settled two years ago by the Supreme Court (SCOTUS) in the landmark ruling, New York State Rifle & Pistol Association v. Bruen, 597 U.S 1 (2022).

In Bruen, the SCOTUS considered the “two-step” approach that appellate courts have applied to this type of case. The first step determined whether the challenged statute regulates conduct protected by the Second Amendment, as originally understood, by analyzing the text and history of the Second Amendment. Then, step two determined whether a challenged statute that fell within the scope of Second Amendment protections was, nonetheless, justified. After explaining how lower courts apply this two-step approach, Justice Thomas, writing for the majority in Bruen, rebuked the second step, stating, 

The Courts of Appeals have developed a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny. The Court rejects that two-part approach as having one step too many.

The holding in Bruen mandates all lower courts to decide these cases with strict adherence to the intent of our Framers and the text of our Constitution, explaining,

When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command’

In this case, the district court correctly determined that the text of the Second Amendment protects the conduct criminalized by California OGM law.  The Framers would agree. Our brief includes a deep-dive examination into our Framers intent and purpose for enshrining the Second Amendment, stating,

The Framers of the Second Amendment reflected the concerns of the People that the day would come when those in government would be tempted to abuse the People they were supposed to serve, through the exercise of powers with which they were never entrusted.

When a government exercises “arbitrary” power over the People, it begins to fear that it could provoke the People to withdraw their consent — to resist.   Rather than seeking to respect and serve the People, it looks to find ways to weaken their ability to resist arbitrary exercises of governmental power. To protect the People against such a day when governments would be tempted to deny arms to the People, our Framers expressly wrote into our Constitution a recognition of a God-given right to self defense only two years after the Constitution was ratified.

America’s Future urges the Ninth Circuit to affirm the district court judgement and permanent injunction consistent with Bruen. Oral argument in this case is scheduled for August 14, 2024.

Editor’s Note: To read all of our Amicus briefs, please visit our Law & Policy page.

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