In Bauer v. Becerra, the Ninth Circuit Court of Appeals upheld a $5.00 fee on all firearms transfers intended to fund a program that disarms prohibited persons who possess firearms.  

California requires every transfer of a firearm to go through a licensed dealer. California further requires every transferee to pay a fee of $19.00. This fee pays for the $14.00 it costs to run a background check on the transferee—which is directly related to the transfer of the firearm to the transferee—and the fee pays $5.00 towards a program preventing persons who have become prohibited persons from continuing to possess firearms—which is not directly related to the transfer of the firearm to the transferee.

The plaintiffs challenged the $5.00 portion of the fee, arguing that it violates their right to keep and bear arms because the state’s objective of disarming prohibited persons who already possess firearms is not sufficiently related to the burden imposed on the legal transfer of firearms.   

The court assumed, without deciding, that the fees burdened the Second Amendment. This required assumptions that the fee is not a longstanding condition or qualification on the commercial sale of arms (in which case the law could be considered “presumptively lawful” under Supreme Court precedent), and that the right to keep and bear arms includes a corresponding right to acquire a firearm. The court apparently made these assumptions because the state did not carry its burden of proving otherwise.

The court then proceeded to apply intermediate scrutiny. Since the Supreme Court has made clear that heightened scrutiny, at a minimum, is required for any law that burdens the right to keep and bear arms, intermediate scrutiny was the lowest form of scrutiny available to the court. Intermediate scrutiny was selected because the court determined that the $5.00 fee did not seriously impact anyone’s ability to possess a firearm, so the burden was “exceedingly minimal.”

Under intermediate scrutiny, Ninth Circuit Second Amendment precedent requires that “(1) the government’s stated objective . . . be significant, substantial, or important; and (2) there . . . be a ‘reasonable fit’ between the challenged regulation and the asserted objective.” The first prong was easy for the government to satisfy, as it typically is in Second Amendment challenges, because public safety is self-evidently important. The “reasonable fit” was less obvious. The court determined that there was a sufficiently reasonable fit between the important objective of promoting public safety by disarming prohibited persons and the challenged fee because the fee applies to persons acquiring a firearm, and the prohibited persons at some point must have acquired a firearm themselves. The court explained, “despite Bauer’s emphasis on the fact that only a small subset of [] fee payers will later become illegal possessors targeted by [the program], we note that essentially everyone targeted by the [] program was a [] fee payer at the time he or she acquired a firearm.”  

At that point, the court concluded its Second Amendment analysis, and upheld the law. But if it had proceeded to consider less burdensome alternatives, as it should have, the outcome may have been different. Intermediate scrutiny does not require that the law be the least restrictive alternative, like strict scrutiny does, but it does require that the law not be substantially more burdensome than equally effective alternatives.

The Supreme Court most recently elucidated that intermediate scrutiny requires the consideration of substantially less burdensome alternatives in McCullen v. Coakley. Notably, in the Second Amendment context, in his D.C. v. Heller dissent, Justice Breyer proposed an intermediate scrutiny-like balancing test which included consideration of “the existence of any clearly superior less restrictive alternative.”

In the Circuit Courts, the Seventh Circuit, Tenth Circuit, D.C. Circuit, and even the Ninth Circuit itself, have recognized the need to consider less burdensome alternatives in an intermediate scrutiny analysis. However, the Bauer court neglected to do so.

Had it done so, the court would have considered whether capping the fee at the amount actually used by the state for its intended purpose, as asserted by the plaintiffs, represented a substantially less burdensome alternative. Perhaps more significantly, the court would have considered whether a burden on only those connected to the law, rather than all gun owners, was substantially less burdensome—for instance, a law that included the fee in the punishment for those prohibited persons who were disarmed through the program. After all, the court acknowledged that “only a small subset of [] fee payers will later become illegal possessors targeted by [the program],” meaning that the vast majority of those who pay the fee will forever be entirely unconnected to the program. It follows that a fee affecting only those connected to the program would be substantially less burdensome.    

While a $5.00 fee may be inconsequential for most gun purchasers, Bauer sets a harmful precedent: both by requiring persons exercising a constitutionally protected right to fund an unrelated program, and through the abdication of the court’s duty to consider substantially less burdensome alternatives under intermediate scrutiny.