The big news in American human/civil rights today is JONES vs. BONTA, overturning the California ban on long guns for 10-20 year-olds.
To hear from a lot of “news” outlets this morning, the Ninth Circuit ruled against the ban. Most headlines read that way, and many even continue that into the reports themselves. A few correctly point out that the ruling came from a three judge panel of the Ninth, rather than the whole circuit. That’s pretty important, for reasons beyond the obvious option for appeal.
The good news is that the panel correctly applied strict scrutiny.
- It must be justified by a compelling governmental interest.
- The law or policy must be narrowly tailored to achieve that goal or interest.
- The law or policy must be the least restrictive means for achieving that interest: there must not be a less restrictive way to effectively achieve the compelling government interest.
The law in question broke down into two parts. One forbade any long guns to those 18-20yo unless they have a hunting license. Because the court found that it was not unnecessarily broad — allowing the hunting license exception — it used intermediate scrutiny on that part, and allowed it to stand.
The second part in question banned 18-20yos possessing semiautomatic centerfire rifles, hunting license or not. While the first part would allow those with hunting licenses to possess pump shotguns, single shot rifles, or bolt-actions, semiautomatics were right out; essentially with no exceptions (other than for police or military). Coupled with the existing prohibition on sales of any handgun to those under 21, this amounted to a near total revocation of Second Amendment rights for young adults. The panel found that to be overly broad under strict scrutiny.
Third, the district court erred by applying intermediate scrutiny, rather than strict scrutiny, to the semiautomatic centerfire rifle ban. Strict scrutiny applied because the law on its face banned almost all young adults from having semiautomatic rifles. The main difference between this ban and the long gun regulation was the exceptions. The long gun regulation has a readily available exception, at least on its face—young adults can get hunting licenses. The semiautomatic rifle ban has no such exception: the only young adults who can buy semiautomatic rifles are some law enforcement officers and active-duty military servicemembers. The panel held that California’s ban was a severe burden on the core Second Amendment right of selfdefense in the home. Even applying intermediate scrutiny, the ban, prohibiting commerce in semiautomatic rifles for all young adults except those in the police or military, regulated more conduct than was necessary to achieve its goal and therefore failed the reasonable fit test.
As a matter of routine, when California loses a case at the panel level, it appeals to the Ninth en banc; the whole circuit. That is where things could get very interesting, thanks to Judge Stein’s dissent in this case.
Dissenting in part, Judge Stein stated that while the majority was correct to apply intermediate scrutiny to the long gun regulation to affirm the district court’s denial of the preliminary injunction, it erred in applying strict scrutiny to and reversing the district court with respect to the semiautomatic centerfire rifle regulation. On that basis, Judge Stein concurred with the majority’s holding and reasoning with respect to the long gun regulation and dissented from its holding and reasoning with respect to the semiautomatic rifle regulation. Judge Stein stated that by neglecting consideration of either the disproportionate perpetration of violent crime by, or the relatively immature and variable cognitive development among, adults under age 21, the majority opinion failed to conduct a legal analysis that comported with the corpus of precedent within this Circuit and elsewhere.
Oh. My. How will the en banc Ninth deal with Stein’s assertion that 18-20yos are too criminal and/or too mentally defective to enjoy enumerated rights, while struggling to reject the panel’s decision that they do have some rights?
If, as I expect, the Ninth takes up this case en banc the weasel-worded side-stepping around Stein’s dissent will be amazing. If they roll with Stein’s position, they open up several cans of worms.
Too immature to have a rifle? Too immature to vote.
Too immature to have a rifle? Too immature for free speech. (OK, they’ll probably like that one.)
Too immature to have a rifle? Too immature for an abortion.
Too immature to have a rifle? Too immature for a car.
Work your way throught the Bill of Rights and consider what else young adults might be to immature to enjoy.
If the Ninth decides intermediate scrutiny should be applied, and accepts Stein’s assertion that young adults are du jure criminals and mentally deficient, California’s red flag law could also come into play.
As bad as no-due process confiscations based on — even anonymous — accusations of potential future crime are, imagine red flag hearings based on Stein’s bizarre idea.
NOW: “Judge, Mr. Smith has been angry and acting erratically. Hid did this and this and this. He has guns. Please take them.”
STEIN’s FUTURE: “Judge, Mr. Smith is 18 and has a bolt-action hunting rifle. Please take it. No, he has not been angry or erratic, but under JONES v. BONTA, he’s a criminal and mentally deficient by default, by reason of age.”
That’ll go over well with younger voters. If they can still vote.
Previous age limits for firearms have survived intermediate scrutiny in the past because they’ve been somewhat narrowly tailored. Young adults were prohibited from purchasing handguns because those tend to be used more often in crimes than long guns. (That’s still a bit wide for my taste, and courts are beginning to agree with me.)
Outright bans for individuals — as opposed to entire demographic classes — were narrowly tailored because they required convictions of those specific individuals for serious crimes, or judicial findings of mental incompetence specific to those individuals.
Will the Ninth — like Stein — be willing to chuck that in favor of wholesale bans for entire demographic classes?
…disproportionate perpetration of violent crime by…
Huh. What other demographics are disproportionately committing crimes?
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Wait a minute. Didn’t CA rule kids (actual kids) can take covid shots without their parents permission? Can change their sex and not tell their parents? How do they square that?
They don’t have to: “A foolish consistency is the hobgoblin of little minds.”
Based on past experience attempting to discuss this with victim-disarming loons, their argument will be that firearms ownership is magically different from the genital mutilation, etc.