9th Circuit shoots down California's gun limit law

Last week, a unanimous three-judge 9th Circuit panel ruled California's gun-rationing law unconstitutional in Nguyen v. Bonta. Under California Penal Code § 27535(a), it is a crime to acquire more than one firearm in a 30-day period, but that limit violates the Second Amendment, said the court.

If California Attorney General Rob Bonta petitions for the case to be reheard by an en banc panel, history suggests his chances of winning a reversal are excellent. As Judge Van Dyke pointed out in his 2022 dissent in Duncan v. Bonta, "whenever a three-judge panel actually finds a gun law unconstitutional, without fail, the case is reversed en banc."

On the other hand, an en banc petition could carry risks. A 9th Circuit en banc panel consists of the Chief Judge, plus 10 more judges drawn at random from the other 28 active duty judges. An unlucky draw, from the attorney general's viewpoint, could create a panel that could reverse much of the prior anti-rights en banc precedents.

The risk is underscored by Judge John Owens' decision to "fully concur" in the three-judge panel's majority opinion. Appointed by President Obama in 2013, Judge Owens has not participated in previous 9th Circuit gun control cases, and his vote on gun rationing may bode ill for the views of other swing judges on the Circuit.

Second, the public safety rationale for the law is very weak. Supposedly, the gun-rationing law prevents gun trafficking so that a legal buyer cannot purchase multiple guns at once to resell them to prohibited persons.

But every firearms transaction in California is registered with the California Department of Justice at the time of sale. A would-be trafficker who bought three guns in June with the intent to sell them to criminals in July would be amazingly foolish.

Perhaps most importantly, the California general assembly is currently working to moot the case, with a bill to raise the gun rationing from one gun per month to three.

Should Nguyen v. Bonta go en banc, the controlling U.S. Supreme Court precedent is New York State Rifle and Pistol Association v. Bruen (2023), which mandates the Second Amendment cases be decided based on the text and original meaning of the Second Amendment, which can be elucidated by analogy to historic gun control laws. For the historical analogies, the closer to the 1791 ratification of the Second Amendment, the better; anything after 1900 is useless for construing original meaning, according to Bruen.

For gun rationing, there's only one analogy helpful to Bonta. From 1624 to 1664, the Dutch West India Company autocratically ruled the colony of New Netherland, which at its peak stretched from the Delaware Bay up to what is now Albany, New York.

Due to the problem of colonists selling arms to potentially hostile Indians, in 1656, the New Netherland Director General and his Council forbade colonists from importing more than one "firelock." A firelock, which today we call a "flintlock," was, in 1656, an expensive state-of-the-art modern firearm. When the trigger is pressed, jaws holding a piece of sharpened flint fall forward, striking a steel plate and casting a shower of sparks in the gunpowder held in the firing pan.

Even the New Netherland law didn't cover all guns, just the best ones. Untouched by the new law were matchlocks, which at the time were the most common firearm. A matchlock is ignited when pressing the trigger lowers a slow-burning hemp cord to touch the gunpowder in the firing pan.

Once the English took New Netherland in 1664, the firelock rationing law vanished. Our American right to arms tradition traces its roots not from the big business edicts of the Dutch West India Company, but rather from the English colonies in North America, all of which had elected legislatures.

Our American right to arms begins with the first English settlements pursuant to the 1606 Virginia Charter and the 1620 New England Charter. Together, the charters covered all 13 of the original colonies that became the United States of America. The first written guarantees of arms rights in the English-speaking world, the charters guaranteed the colonists the perpetual, unlimited right to import arms and ammunition. Just the opposite of the policies of the Dutch West India Company and the California legislature. The arms acquisition rights were always respected until 1774, when King George III imposed a complete arms embargo on America, a major step in precipitating the American Revolution.

According to the Supreme Court's Bruen decision, a more "nuanced approach" (i.e., looser) to historical analogies can be used for novel problems that were unanticipated in 1791. Gun trafficking, however, was a well-known problem in early America. The colonies and then the states enacted many laws to restrict gun sales to Indians. At the time, the "Indian nations" were treated the same as other foreign nations, and American relations with them were governed by treaties passed by two-thirds of the Senate, the same as treaties with European nations. These laws are good precedents for today's Arms Control Export Act, which restricts firearms sales to foreigners.

None of the laws attempting to constrict arms trafficking to Indians limited arms ownership by Americans who were recognized as having full civil rights. As Bruen states, "Likewise, if earlier generations addressed the societal problem, but did so through materially different means, that also could be evidence that..."