What if you were only allowed to make one purchase of printers, signs, or gear for podcasts per month? Would you consider that fully respectful of your free speech rights? Or would you view it as an attempt to muffle people’s natural right to speak out—and perhaps a hint of more restrictions to come? California has something similar in the form of a law that limits people to buy one gun per month. If you rightfully believe that rationing the ability to express oneself violates First Amendment protections for speech, you’ll be glad to know the courts have found California’s law in violation of the Second Amendment’s protections for self-defense rights and barred its enforcement.
California’s Gun Rationing
According to California Penal Code section 27535, “A person shall not make an application to purchase more than one firearm within any 30-day period. This subdivision does not authorize a person to make an application to purchase a combination of firearms, completed frames or receivers, or firearm precursor parts within the same 30-day period.”
A list of exceptions follows, unsurprisingly heavy on government enforcers and those licensed by the state, including cops, corrections officers, and private security companies. But most Californians were limited to one (legal) firearm purchase every month. The law has been in place since 1999 but expanded over the decades from concealable firearms to all guns.
The courts have not been kind to this law. Through years of rulings, the U.S. Supreme Court has acknowledged that the Second Amendment protects the natural individual right to keep and bear arms, and that it precludes many restrictions imposed at the state and local level. In particular, New York State Rifle & Pistol Association v. Bruen (2022) requires that gun laws be “consistent with this Nation’s historical tradition of firearm regulation.”
California’s one-gun-a-month law was challenged by a coalition of individuals and groups including Michelle Nguyen, the Firearms Policy Coalition, and the Second Amendment Foundation in Nguyen v. Bonta. A U.S. district judge found the law unconstitutional last year, though the decision was stayed by the Ninth Circuit Court of Appeals pending appeal. A three-judge panel of the same court reversed the stay last August, leaving the law unenforceable. Then, in June of this year, three judges of the Ninth Circuit Court of Appeals ruled on the appeal that the law in fact violates the Second Amendment.
That was followed on August 14 by a court mandate putting the decision into effect and making the one-gun-a-month law so much wasted ink in the state’s list of statutes.
No Real Historical Precedent
For the court in the June decision, Judge Danielle J. Forrest points out that California “contends that the one-gun-a-month law is consistent with the strong tradition of restricting dangerous individuals from acquiring firearms.” She notes later that “California acknowledges, as it must, that not all Californians are dangerous” but that “California’s law primarily impedes nearly all individuals from acquiring multiple firearms.”
The historical laws that the state cites as precedent for its one-gun-a-month restriction are all more limited in scope than the California law, Forrest emphasized. “Some of the historical regulations prohibited only a specific group considered to be dangerous from acquiring or possessing firearms—laws targeting Indians, foreigners, and the intoxicated.”
The historical law that came closest to the California law, according to the court, was a Virginia restriction on the “carrying of more than one gun and ten charges of powder when traveling near any Native town or more than three miles away from an English plantation.” But that law restricted only the number of guns that could be carried, not acquired. It was also in effect for just a few years, over a century before the founding of the United States. “By the founding era, the historical record suggests that it was common for Americans to ‘carry two, four, or even six single shot pistols on their belt’ and that ‘pistols were often sold . . . in pairs.'”
You Can’t Ration Rights
Importantly, the court was unimpressed by efforts to ration the use of constitutionally protected rights:
We are not aware of any circumstance where government may temporally meter the exercise of constitutional rights in this manner. And we doubt anyone would think government could limit citizens’ free-speech right to one protest a month, their free-exercise right to one worship service per month, or their right to be free from unreasonable searches and seizures to apply only to one search or arrest per month.
The court concluded that “the Second Amendment expressly protects the right to possess multiple arms. It also protects against meaningful constraints on the right to acquire arms because otherwise the right to ‘keep and bear’ would be hollow.” The law runs afoul of such considerations.
The June decision made it clear California’s law couldn’t pass constitutional muster. Last week’s mandate put the ruling into effect with the end of appeals and hearings, sealing the law’s fate. The law’s prospects in further litigation certainly looked dim given Supreme Court precedent.
More Battles To Come
“The decision in Nguyen v. Bonta is both an unusual example of the Ninth Circuit unanimously striking down a gun restriction under the Second Amendment and, potentially, a sign of greater receptiveness to Supreme Court cues at the appellate level,” commented Andrew Willinger of the Duke University School of Law and executive director of the Duke Center for Firearms Law. He pointed out, though, that the ruling allowed openings for less restrictive rules, including licensing of purchasers and possibly even a “higher limit than one gun per month.”
One battle at a time.
“California has managed to do what many thought impossible: violate the Second Amendment so blatantly that even the Ninth Circuit won’t uphold it,” observed Cody J. Wisniewski, president of the FPC Action Foundation, which participated in the case, referring to the Ninth Circuit’s reputation for unfriendliness to self-defense rights. “We are proud to have secured the rights of peaceable people and look forward to many more wins against California’s unconstitutional laws.”
The ruling in Nguyen is an encouraging development for those of us who believe that individual rights and their protection by the Constitution should be taken seriously.
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