Surprisingly, the 9th Circuit Court of Appeals holds that the Second Amendment applies to Second Amendment Challenges

United States v. Perez Garcia No. 22-50314 consolidated with US v. Fencl No. 22-50316

The most important thing to take away from this decision in US v. Perez-Garcia is that this three-judge panel held, in a published opinion, that the 1987 US Supreme Court opinion (means-end testing) in US v. Salerno does not apply to Second Amendment challenges. Instead, the Court held that the Second Amendment applies to Second Amendment challenges.

As a published opinion, it is binding on all subsequent three-judge panels, and all district courts in the 9th Circuit. I have distilled the 47-page slip opinion in this case by copying and pasting particularly relevant excerpts.

This was quite the surprise given that two of the 9th Circuit Court of Appeals judges on the panel (Wardlaw and Clifton) are not what one would characterize as "friendly" toward the Second Amendment. The judge who authored the opinion is Gabriel P. Sanchez. He was nominated by President Biden and narrowly confirmed by the U.S. Senate in a 52-47 vote. California Senators Feinstein and Padilla voted to confirm his nomination as did three RINOs: Collins (R-ME), Graham (R-SC), and Murkowski (R-AK). Although Judge Sanchez's three-part analysis of the government's burden to prove that the law at issue does not violate the Second Amendment is pretty weak, and in my view wrong in many respects, his prelude to addressing the government's burden is surprisingly strong.

In the Baird v. Bonta California handgun Open Carry lawsuit now on appeal before the 9th Circuit Court of Appeals, District Judge Kimberly Mueller cited the Salerno opinion, twice, in upholding California's bans on openly carrying loaded and unloaded handguns outside of the home.

Moreover, Judge Mueller held that the plaintiffs could not challenge the bans as they apply to the plaintiffs. The three-judge panel in this case (Perez-Garcia) held that the two persons could challenge their pre-trial disarmament as the laws apply to them.

Judge Mueller in Baird v. Bonta held that the Baird plaintiffs (now just Mr. Baird on appeal) could only challenge the bans as they apply facially (to everybody) citing Salerno's "no set of circumstances" language in holding that the bans are not facially invalid. By the way, the Supreme Court in its Salerno decision did not apply the "no set of circumstances" test in deciding the case.

Judge Mueller, in her order granting summary judgment for the State of California, opined that although the Open Carry of unloaded, antique, single-shot flintlock pistols might be constitutional under the Second Amendment, the Open Carry of firearms capable of firing two or more shots without reloading is not protected by the Second Amendment because they are "murder weapons." I will provide a link down below where you can read the filings in the Baird v. Bonta case for yourself, and for free. I forwarded the Perez-Garcia decision to Mark Baird and asked him to forward it on to his attorney. One could assume that his attorney is keeping current with Second Amendment jurisprudence in the 9th Circuit Court of Appeals but you know the old saying about making assumptions.

The US Supreme Court has published three opinions on the Second Amendment. In each case, the justices facially invalidated the challenged laws even though the laws in all three cases had applications that were Constitutional insofar as the Supreme Court had defined the right. If a law is facially Constitutional under the Second Amendment unless it is unconstitutional in all applications then the justices would have decided the cases the other way. The three cases are District of Columbia v. Heller, McDonald v. City of Chicago, and NYSRPA v. Bruen.

The remainder of this article is copied and pasted from the slip opinion in US v. Perez-Garcia which was consolidated on appeal with US v. Fencl. My brief comments below appear enclosed within parentheses.

As the Government sees it, Bruen did not alter the balance Salerno already struck nor require that courts accord Second Amendment rights special consideration. The Government invites us to “uphold the challenged condition without proceeding further” under a Bruen analysis. 

The Government reads too much from Salerno. 

For example, when a criminal defendant in Scott challenged their pretrial release condition authorizing suspicionless searches or drug testing, we applied traditional Fourth Amendment analysis to assess whether these conditions were unreasonable searches or seizures. 

In Bell, the Supreme Court also applied First Amendment analysis to a different claim involving a pretrial detention condition prohibiting detainees from receiving hardback books. 

And Bruen makes clear that text, history, and tradition are the “[o]nly” ways the Government can justify a regulation that implicates Second Amendment rights. We therefore analyze Appellants’ Second Amendment challenges under the Bruen framework. Doing so does not elevate the Second Amendment above other constitutional rights. Rather, our approach “accords with how we protect other constitutional rights.”

At the same time, Bruen clarified that text, history, and tradition are the “[o]nly” avenues to justify a firearm regulation. Id. at 17.  The Supreme Court did so after we and other circuit courts— following Heller and McDonald—coalesced around a two step framework for analyzing Second Amendment challenges that combined historical analysis with means-end scrutiny. See, e.g., Young v. Hawaii, 992 F.3d 765, 783-84 (9th Cir. 2021) (en banc), vacated, 142 S. Ct. 2895 (2022).

Bruen rejected this two-step approach and adopted a two-step approach of its own. Rejecting the use of means end scrutiny, the Bruen court instead instructed us to apply the following framework to Second Amendment claims: We first consider whether the Second Amendment’s plain text covers an individual’s proposed course of conduct. If so, the Second Amendment presumptively protects that conduct.  The Government then bears the burden of justifying the challenged regulation by showing that it is consistent with our nation’s “historical tradition of firearm regulation.”  Only then may we conclude that the regulation is constitutional.

The threshold question in a Second Amendment claim is whether the Amendment presumptively protects the individual’s conduct. Id. In Bruen, the Supreme Court approached this question by asking whether the petitioners were among “the people” within the plain meaning of the Second Amendment and then asking whether the plain text of the Amendment encompasses the individuals’ “proposed course of conduct.”

(The Court then concluded that Fencl and Perez-Garcia are among the people who have Second Amendment rights.)

John Thomas Fencl was arrested after police officers found more than 110 guns in his house, including 10 unregistered and untraceable “ghost guns,” 4 silencers, and 3 short-barreled rifles. Officers also uncovered thousands of rounds of ammunition, including armor-piercing and incendiary rounds and a tear-gas grenade. Jesus PerezGarcia was arrested following a customs inspection at the United States-Mexico border. He was the passenger in a car in which officers found approximately eleven kilograms of methamphetamine and half a kilogram of fentanyl.

Although Appellants are pretrial releasees, they remain members of the national community—that is, they fall within the plain meaning of “the people”—and they are therefore not without the ability to invoke their constitutional right.

In our view, to allow the government to exclude an entire group of individuals from “the people” through mere accusation would be, at minimum, inconsistent with the presumption of innocence. 

As to Fencl, specifically, we cannot conclude that his prior misdemeanor conviction or arrests should operate to categorically exclude him from the national community...We have already held that at least one group of misdemeanants—specifically, domestic violence misdemeanants—is “entitled to some measure of Second Amendment protection.” 

We next ask whether the Second Amendment presumptively protects Appellants’ proposed course of conduct. It does. Fencl wanted to carry guns to protect his home and for self-defense when he traveled out of state for work. Perez-Garcia wanted to carry guns so that he could pursue employment as an armed security officer and protect his family. Their requests track the core constitutional right to possess a handgun for self-defense inside and outside the home, as defined by Heller and Bruen, respectively...Accordingly, we conclude that the Second Amendment presumptively protects Appellants’ proposed course of conduct. 

Because we conclude that the Second Amendment presumptively protects Appellants’ proposed course of conduct while awaiting trial for their criminal charges, the Government bears the burden of proving that application of the Bail Reform Act’s firearm condition to them is consistent with our nation’s “historical tradition of firearm regulation.”

At the second prong of the Bruen framework, the central question is whether the modern regulation is “relevantly similar” to historical laws and traditions, id. at 29 (citation omitted), so as to “evince[] a comparable tradition of regulation,” id. at 27. Bruen emphasized that we must uphold a modern regulation if the government identifies a “well-established and representative historical analogue.”  The government does not have to identify “a historical twin.” Id. (emphasis omitted). “So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.”

The “central” consideration in this analysis is whether, when compared to a modern regulation, the historical precedent imposed a “comparable burden” on the right of armed self-defense and was “comparably justified.” Id. at 29 (emphasis omitted and citation omitted). In other words, both the modern regulation and the historical precedent must align as to “how and why [they] burden a law-abiding citizen’s right to armed self-defense.”

As we explain below, the combination of separate but related founding era practices supports this conclusion: (1) most serious crimes were eligible for capital charges; (2) the government had the power to detain, and usually did detain, defendants indicted on capital charges; and (3) once detained, criminal defendants were completely disarmed.  The Bail Reform Act’s firearm condition as applied to Fencl and Perez-Garcia fits within this historical tradition of firearm regulation. 

(The Court implicitly held that history prior to the enactment of the 14th Amendment was the relevant time frame.  NYSRPA v. Bruen said that when it came to bearing of arms in public, the right was the same in 1791 and 1868.  Other circuits have considered laws and court opinions from the post 14th Amendment Reconstruction Era that are clearly irreconcilable with the Supreme Court opinions in Heller, McDonald and Bruen.)

The goal of Bruen’s analogical exercise is to use history to “delimit[] the outer bounds of the right to keep and bear arms.”  For that purpose, Bruen explained, “not all history is created equal.”  Emphasizing that the right codified in the Second Amendment was a “preexisting right,” the Court saw particular relevance in “English history dating from the late 1600s, along with American colonial views leading up to the founding.” The Bruen court also found post-ratification practices from the late 18th and early 19th centuries as bearing on this question.  We focus on sources from those same historical time periods.

(The Court then held that the temporary, pre-trial disarming of person charged with serious crimes does not violate the Second Amendment.)

In sum, the historical record evinces a historical tradition of complete disarmament of criminal defendants facing serious or felony charges pending trial.

Appellants undoubtedly were charged with serious crimes. Fencl was charged with seven felony counts, each punishable by up to ten years’ imprisonment. See 26 U.S.C. § 5871. Perez-Garcia was charged with two felony counts of importing approximately eleven kilograms of methamphetamine and half a kilogram of fentanyl in violation of 21 U.S.C. §§ 952, 960. Each of those counts is punishable by up to ten years’ imprisonment. See 21 U.S.C. § 960(b)(1). Felonies in the founding era “were—and remain—the most serious category of crime deemed by the legislature.” Medina, 913 F.3d at 158. Because Appellants faced serious felony charges, the premise that they would have been released in the founding era is belied by the historical record. See Tennessee v. Garner, 471 U.S. 1, 13 (1985) (explaining that in the founding era “virtually all felonies were punishable by death”).

That Appellants are eligible for pretrial release today, however, does not undermine the historical evidence that similarly situated criminal defendants in the founding era would not have been released and would have instead been disarmed. As an initial matter, then, Appellants’ reasoning fails on its own terms.

The historical tradition of pretrial disarmament allows legislatures to disarm people who are facing serious charges today, regardless of whether laws disarming those same exact persons happened to exist in the founding era. The Government has proven that Fencl’s and Perez-Garcia’s temporary disarmament is justified by that historical tradition. That is all that the Second Amendment requires. 

(The three part analysis by this three-judge panel was weak. Part III being the weakest of the three.  For example, it incorrectly cited the Surety Laws from Bruen in support of disarming people but the Surety Laws did not disarm people.  A person who had threatened another person would be required to post a bond and/or obtain assurances from other people in his community that he would behave himself.  Having done so, he was free to bear arms during the duration of the surety so long as he behaved himself).

Surety statutes also empowered local officials to temporarily disarm specific individuals who “threaten[ed] to do harm” or were “reasonably accused of intending to injure another or breach the peace.” 

In short, regulations that authorize disarmament only after individualized findings of dangerousness by public officials are within the heartland of legislative power to disarm those who are not law-abiding, responsible citizens.

The record amply supports the judicial officers’ decisions to temporarily disarm Appellants. As to Fencl, officers found more than 100 firearms in his house, including “ghost guns,” thousands of rounds of ammunition, armor piercing bullets, incendiary rounds, and even a tear-gas grenade. Fencl had previously been convicted for unlawful possession of a concealed gun without a license and arrested for possession of a privately made ghost gun. The district court appropriately reviewed Fencl’s stockpile and his propensity to violate gun laws and deemed him dangerous enough to temporarily bar him from possessing firearms pending his trial. As for Perez-Garcia, the district court found that the “nature of the charges and weight of the evidence supports a conclusion that Defendant is a danger to others” because he was apprehended in a vehicle containing approximately eleven kilograms of methamphetamine and half a kilogram of fentanyl when it arrived at the port of entry. The district court’s “equation of [wide-scale] drug trafficking with dangerousness to the community” in this particular case has “a reasonable basis in common experience.” By disarming both Fencl and Perez-Garcia after individualized findings of dangerousness, the Government acted consistent with its traditional regulatory authority. 

US v. Perez-Garcia Slip Opinion.

Baird v. Bonta CourtListener link.