FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BARRY BAUER; NICOLE FERRY;

JEFFREY HACKER; NATIONAL RIFLE

ASSOCIATION OF AMERICA, INC.;

CALIFORNIA RIFLE AND PISTOL

ASSOCIATION FOUNDATION; HERB

BAUER SPORTING GOODS, INC.,

Plaintiffs-Appellants,

v.

XAVIER BECERRA, in his official

capacity as Attorney General of the

State of California; STEPHEN

LINDLEY, in his official capacity as

Acting Chief of the California

Department of Justice; DOES, 1–10,

Defendants-Appellees.

No. 15-15428

D.C. No.

1:11-cv-01440-

LJO-MJS

OPINION

Appeal from the United States District Court

for the Eastern District of California

Lawrence J. O’Neill, Chief Judge, Presiding

Argued and Submitted April 19, 2017

San Francisco, California
2 BAUER V. BECERRA

Before: Sidney R. Thomas, Chief Judge, and Ferdinand F.

Fernandez and Mary H. Murguia, Circuit Judges.

Filed June 1, 2017

Opinion by Chief Judge Thomas

SUMMARY*

Civil Rights

The panel affirmed the district court’s summary

judgment in favor of the State of California in an action

challenging, on Second Amendment grounds, California

Penal Code § 28225, which requires the allocation of $5 of a

$19 fee on firearms transfers to fund enforcement efforts

against illegal firearm purchasers through California’s Armed

Prohibited Persons System.

The panel held that the use of the fee to fund enforcement

efforts survived intermediate scrutiny because the

government has demonstrated an important public safety

interest in this statutory scheme, and there was a reasonable

fit between the government’s interest and the means it has

chosen to achieve those ends. Accordingly, the district court

did not err in concluding that the use of the fee to fund the

California’s Armed Prohibited Persons System program,

through California Penal Code § 28225, did not violate the

Constitution.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
BAUER V. BECERRA 3

COUNSEL

Erin E. Murphy (argued), Paul D. Clement, and Edmund G.

LaCour Jr., Bancroft PLLC, Washington, D.C.; C.D. Michel,

Sean A. Brady, and Anna M. Barvir, Michel & Associates

P.C., Long Beach, California; for Plaintiffs-Appellants.

Anthony R. Hakl (argued), Deputy Attorney General; Stepan

A. Haytayan, Supervising Deputy Attorney General; Douglas

J. Woods, Senior Assistant Attorney General; Office of the

Attorney General, Sacramento, California; for DefendantsAppellees.

Sarah E. Tremont and Elliott Schulder, Covington & Burling

LLP, Washington, D.C.; Jonathan E. Lowry and Kelly

Sampson, Brady Center to Prevent Gun Violence,

Washington, D.C.; for Amicus Curiae Brady Center to

Prevent Gun Violence.

Efrain Staino, Ruth N. Borenstein, and Jordan Eth, Morrison

& Foerster LLP, San Francisco, California, for Amicus

Curiae Law Center to Prevent Gun Violence.
4 BAUER V. BECERRA

OPINION

THOMAS, Chief Judge:

In this appeal, we considerwhetherCalifornia’s allocation

of $5 of a $19 fee on firearms transfers to fund enforcement

efforts against illegal firearm purchasers violates the Second

Amendment. We conclude that, even if collection and use of

the fee falls within the scope of the Second Amendment, the

provision survives intermediate scrutiny and is therefore

constitutional. We affirm the judgment of the district court.

I

California regulates firearm sales and transfers through

the Dealer’s Record of Sale (“DROS”) system, which was

created a century ago and has been updated throughout the

intervening years. See 1917 Cal. Stat. 221, § 7. The DROS

system today requires that “any sale, loan, or transfer of a

firearm” be made through a licensed dealer, Cal. Penal Code

§§ 27545, 28050(a), and it requires dealers to keep

standardized records of all such transactions, id. at §§ 28100,

28160 et seq. This statutory framework also requires the

California Department of Justice (“the Department”) to run

background checks prior to purchase, and to notify the dealer

if a prospective firearm purchaser is prohibited from

possessing a gun under federal law or under certain

provisions of California law relating to prior convictions and

mental illness. Cal. Penal Code § 28220.

The DROS system allows the Department to charge a fee,

known as the DROS fee, to cover the cost of running these
BAUER V. BECERRA 5

background checks and other related expenses.1 Cal. Penal

Code § 28225. Although the use of the DROS fee was

originallylimited to background checks, 1982 Cal. Stat. 1472,

§ 129, this provision was later expanded to allow the fee to be

used for “the costs associated with funding Department of

Justice firearms-related regulatory and enforcement activities

related to the sale, purchase, loan, or transfer of firearms,” as

well as certain costs incurred by other agencies in compliance

with the record-keeping and notification requirements of the

background check provisions. Cal. Penal Code 12076(e)

(repealed 2010, replaced by Cal. Penal Code § 28225). In

1995 the legislature capped the DROS fee, with inflation

adjustment to be set by regulation. Cal. Penal Code

§ 28225(a). With inflation, the fee was most recently set at

$19 in 2004. Cal. Code Regs. Tit. 11, § 4001.

In 2011, the California Legislature further expanded the

permissible uses of the DROS fee by enacting the law that is

challenged in this case. This law, commonly referred to as

Senate Bill 819, changed the language of § 28225 to allow the

DROS fee to be used for “firearms-related regulatory and

enforcement activities related to the sale, purchase,

possession, loan, or transfer of firearms.” Cal. Penal Code

§ 28225(b)(11) (emphasis added). In effect, this change

allows the Department to use a portion of the DROS fee “for

the additional, limited purpose” of funding enforcement

efforts targeting illegal firearm possession after the point of

sale, through California’s Armed Prohibited Persons System

(“APPS”). 2011 Cal. Stat. 5735, § 1(g).

1 The statute permits the Department to “require the dealer to charge

each firearm purchaser a fee,” which is then remitted to the Department. 

Cal. Penal code § 28225.
6 BAUER V. BECERRA

The APPS program, established in 2001, enforces

California’s prohibitions on firearm possession byidentifying

“persons who have ownership or possession of a firearm” yet

who, subsequent to their legal acquisition of the firearm, have

later come to “fall within a class of persons who are

prohibited from owning or possessing a firearm” due to a

felony or violent misdemeanor conviction, domestic violence

restraining order, or mental health-related prohibition. Cal.

Penal Code §§ 30000, 30005. Essentially, these are people

who passed a background check at the time of purchase but

would no longer pass that check, yet still possess a firearm.

The system identifies such people by cross-referencing

the Consolidated Firearms Information System (“CFIS”)

database of people who possess a firearm, which is generated

primarily through DROS reporting, against criminal records,

domestic violence restraining order records, and mental

health records. Cal. Penal Code §§ 11106, 30005. This

process generates a list of “armed prohibited persons,” which

the Department uses for “investigating, disarming,

apprehending, and ensuring the prosecution” of persons who

have become prohibited from firearm possession.

Since the enactment of Senate Bill 819 in 2011, the APPS

program—including both the identification of armed

prohibited persons and the Department’s related enforcement

efforts confiscating firearms from those people—has been

partially funded by DROS fees.2 However, only a portion of

the DROS fee is used to fund APPS: the evidence in the

record before us suggests that the cost of running background

2 Most notably, in 2013, the legislature appropriated $24 million from

the DROS Account to the APPS program. 2013 Cal. Stat. 2, codified at

Cal. Penal Code § 30015.
BAUER V. BECERRA 7

checks and processing DROS records is approximately $14,

meaning that only the remaining $5 of each DROS fee is

available for APPS funding.

Barry Bauer and five other individuals and entities

(collectively, “Bauer”) challenge the use of this $5 portion of

the DROS fee3

to fund APPS, arguing that it violates the

Second Amendment because “the criminal misuse of

firearms” targeted by the APPS is not sufficiently related to

the legal acquisition of firearms on which the fee is imposed. 

On these grounds, Bauer filed suit against the Attorney

General of California and the Chief of the California

Department of Justice Bureau of Firearms (collectively, “the

State”) in August 2011, seeking declaratory and injunctive

relief under 42 U.S.C. § 1983. Bauer subsequently filed an

amended complaint adding allegations regarding the 2013

appropriation of funds from the DROS account to the APPS

program.

The district court granted summary judgment for the

State, concluding that the DROS fee does not violate the

Constitution because it falls outside the scope of the Second

Amendment as a “condition[ or] qualification[] on the

commercial sale of arms.” Dist. of Columbia v. Heller,

554 U.S. 570, 626–27 (2008). In the alternative, the district

court concluded that the DROS fee would survive heightened

scrutiny even if the Second Amendment were implicated,

because it places only a “marginal burden” on the of the core

Second Amendment right. Bauer timely appealed.

3 Bauer challenges only the approximately $5 portion of the DROS

fee that exceeds the Department’s actual costs for running background

checks and processing DROS records.
8 BAUER V. BECERRA

The district court had jurisdiction under 28 U.S.C. § 1331,

and we have jurisdiction to hear Bauer’s appeal under

28 U.S.C. § 1291. “We review a district court’s grant of

summary judgment de novo.” Peruta v. Cty. of San Diego,

824 F.3d 919, 925 (9th Cir. 2016) (en banc) (citing Sanchez

v. Cty. of San Diego, 464 F.3d 916, 920 (9th Cir. 2006)). 

Similarly, “[w]e review constitutional questions de novo.” 

Id. (citing Am. Acad. of Pain Mgmt. v. Joseph, 353 F.3d 1099,

1103 (9th Cir. 2004)).

II

The Second Amendment provides: “A well regulated

Militia, being necessary to the security of a free State, the

right of the people to keep and bear Arms, shall not be

infringed.” U.S. Const. amend. II. In the Supreme Court’s

seminal decision on Second Amendment rights, District of

Columbia v. Heller, the Court articulated an individual right

to bear arms but explained that this holding should not “be

taken to cast doubt on longstanding prohibitions on the

possession of firearms by felons and the mentally ill, or laws

forbidding the carrying of firearms in sensitive places such as

schools and government buildings, or laws imposing

conditions and qualifications on the commercial sale of

arms.” 554 U.S. at 626–27. The Court described these

categories of regulation as “presumptively lawful” and noted

that this list was not intended to be exhaustive. Id. at 627

n.26.

In accord with many of our sister circuits, “we have

discerned from Heller’s approach a two-step Second

Amendment inquiry.” Jackson v. City & Cty. of S.F.,

746 F.3d 953, 960 (9th Cir. 2014) (citing United States v.

Chovan, 735 F.3d 1127, 1136–37 (9th Cir. 2013)); see also,
BAUER V. BECERRA 9

e.g., United States v. Chester, 628 F.3d 673, 680 (4th Cir.

2010); United States v. Reese, 627 F.3d 792, 800 (10th Cir.

2010); United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir.

2010). This two-step inquiry “(1) asks whether the

challenged law burdens conduct protected by the Second

Amendment and (2) if so, directs courts to apply an

appropriate level of scrutiny.” Jackson, 746 F.3d at 960

(citing Chovan, 735 F.3d at 1136). In determining whether a

given regulation falls within the scope of the Second

Amendment under the first step of this inquiry, “we ask

whether the regulation is one of the ‘presumptively lawful

regulatory measures’ identified in Heller, or whether the

record includes persuasive historical evidence establishing

that the regulation at issue imposes prohibitions that fall

outside the historical scope of the Second Amendment.” Id.

(first quoting Heller, 554 U.S. at 627 n.26; then citing

Chovan, 735 F.3d at 1137).

Here, Bauer contends that the challenged portion of the

DROS fee burdens conduct protected by the Second

Amendment because it applies to all firearm transfers, not

just those that would be considered “commercial sale” in the

ordinary sense. Cal. Penal Code §§ 27545, 28050, 28055(b). 

Thus, Bauer argues that the DROS fee does not belong to the

category of “conditions and qualifications on the commercial

sale of arms” that Heller held to be presumptively lawful at

the first step of the inquiry. See 554 U.S. at 626–27 & n.26. 

The State counters that by regulating transactions conducted

through commercial firearm dealers, the DROS fee is

properly considered a condition on the commercial sale of

arms and thus falls outside the scope of the Second

Amendment under Heller’s first step.
10 BAUER V. BECERRA

We need not decide this question because the challenged

portion of the DROS fee would survive heightened scrutiny

even if it implicates Second Amendment protections. 

Therefore, for purposes of this analysis, we assume, without

deciding, that the challenged fee burdens conduct falling

within the scope of the Second Amendment. See Silvester v.

Harris, 843 F.3d 816, 826–27 (9th Cir. 2016) (assuming

without deciding that waiting period laws fall within the

scope of the Second Amendment at step one); Fyock v.

Sunnyvale, 779 F.3d 991, 997 (9th Cir. 2015) (bypassing step

one because firing-capacity regulations would survive

heightened scrutiny even if they fell within the scope of the

Second Amendment).

III

If a law burdens conduct protected by the Second

Amendment, as we assume, but do not decide that this one

does, Heller mandates some level of heightened scrutiny. 

554 U.S. at 628 & n.27. We conclude that intermediate

scrutiny is the appropriate standard for analyzing the fee

scheme challenged here, and we hold that the fee survives

under this standard.

A

Because Heller did not specify a particular level of

scrutiny for all Second Amendment challenges, courts

determine the appropriate level byconsidering “(1) how close

the challenged law comes to the core of the Second

Amendment right, and (2) the severity of the law’s burden on

that right.” Silvester, 843 F.3d at 821 (citing Jackson,

746 F.3d at 960–61). Helleridentified the core of the Second

Amendment as “the right of law-abiding, responsible citizens
BAUER V. BECERRA 11

to use arms in defense of hearth and home.” 554 U.S. at 635. 

Guided by this understanding, our test for the appropriate

level of scrutiny amounts to “a sliding scale.” Silvester,

843 F.3d at 821. “A law that imposes such a severe

restriction on the fundamental right of self defense of the

home that it amounts to a destruction of the Second

Amendment right is unconstitutional under any level of

scrutiny.” Id. (citing Chovan, 735 F.3d at 1138). Further

down the scale, a “law that implicates the core of the Second

Amendment right and severely burdens that right warrants

strict scrutiny. Otherwise, intermediate scrutiny is

appropriate.” Id.

Here, Bauer argues that the core right to possess and use

a firearm in the home includes a corresponding right to

purchase a firearm, and that the core right is therefore

burdened by the DROS fee. But even if we assume that the

right to possess a firearm includes the right to purchase one,

the burden on that right is exceedingly minimal here.

Bauer has neither alleged nor argued that the $19 DROS

fee—let alone the smaller, $5 challenged portion of the

fee—has any impact on the plaintiffs’ actual ability to obtain

and possess a firearm. Although Bauer suggests that a

hypothetical $1 million fee could effectively eliminate the

general public’s ability to acquire a firearm, that extreme

comparison underscores the minimal nature of the burden

here. Indeed, in considering a fee much larger than the one

here, the Second Circuit suggested in Kwong v. Bloomberg

that even a $340 licensing fee might not be a “substantial
12 BAUER V. BECERRA

burden” on Second Amendment rights.”4723 F.3d 160, 167

(2d Cir. 2013). On the facts before us, the challenged portion

of the DROS fee does not “severely burden[]” or even

meaningfully impact the core of the Second Amendment

right, and intermediate scrutiny is therefore appropriate. See

Silvester, 843 F.3d at 821 (citing Chovan, 735 F.3d at 1138).

This approach is consistent with our past cases analyzing

the appropriate level of scrutiny under the second step of

Heller, as we have repeatedly applied intermediate scrutiny

in cases where we have reached this step. Silvester, 843 F.3d

at 823 (applying intermediate scrutiny to a law mandating

ten-day waiting periods for the purchase of firearms); Fyock,

779 F.3d at 999 (applying intermediate scrutiny to a law

prohibiting the possession of large-capacity magazines);

Jackson, 746 F.3d at 965, 968 (applying intermediate scrutiny

to laws mandating certain handgun storage procedures in

homes and banning the sale of hollow-point ammunition in

San Francisco); Chovan, 735 F.3d at 1138 (applying

intermediate scrutiny to a law prohibiting domestic violence

misdemeanants from possessing firearms).

Similarly, our sister circuits have overwhelminglyapplied

intermediate scrutiny when analyzing Second Amendment

challenges under Heller’s second step. See, e.g., Kwong,

723 F.3d at 168 & n.16 (law imposing a $340 licensing fee on

all handguns); NRA v. McCraw, 719 F.3d 338, 348 (5th Cir.

2013) (law prohibiting 18-to-20-year-olds from carrying

handguns in public); Woollard v. Gallagher, 712 F.3d 865,

4 Although the DROS fee is not a licensing fee, it is analogous in the

sense that it applies to essentially all means of acquiring a firearm, just as

a licensing fee applies to all those who acquire and possess a firearm

under a licensing or registration scheme.
BAUER V. BECERRA 13

876 (4th Cir. 2013) (law requiring a “good and substantial

reason” for issuance of a handgun permit); Kachalsky v. Cty.

of Westchester, 701 F.3d 81, 96–97 (2d Cir. 2012) (law

requiring a showing of “proper cause” to obtain a concealed

carry permit); Heller v. Dist. of Columbia (Heller II),

670 F.3d 1244, 1256–58, 1261–62 (D.C. Cir. 2011) (laws

imposing registration requirements on all firearms and

banning assault weapons and large-capacity magazines);

Reese, 627 F.3d at 802 (law prohibiting possession of all

firearms while subject to a domestic protection order);

Marzzarella, 614 F.3d at 97 (law effectively prohibiting

possession of firearms with obliterated serial numbers);

United States v. Skoien, 614 F.3d 638, 641 (7th Cir. 2010)

(law prohibiting domestic violence misdemeanants from

possessing firearms); but see Ezell v. City of Chicago,

651 F.3d 684, 708 (7th Cir. 2011) (applying “a more rigorous

standard” than intermediate scrutiny, “if not quite ‘strict

scrutiny,’” to a law mandating firing-range training as a

prerequisite to gun ownership but banning all firing ranges

within the City of Chicago). In short, intermediate scrutiny

is the appropriate standard for the minimal burden posed by

the portion of the DROS fee challenged in this case.

B

Our intermediate scrutiny test under the Second

Amendment 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.” Silvester, 843 F.3d at

821–22 (quoting Chovan, 735 F.3d at 1139). The challenged

portion of the DROS fee survives this test.
14 BAUER V. BECERRA

The government’s stated objective for using a portion of

the DROS fee to fund APPS, as expressed in the legislative

findings in Senate Bill 819, is to target “[t]he illegal

possession of . . . firearms” because illegal possession

“presents a substantial danger to public safety.” 2011 Cal.

Stat. 5735, § 1(d). Thus, the State asserts that its goal is

“improving public safety by disarming individuals who are

prohibited from owning or possessing firearms.” The

legislative findings in Senate Bill 819 estimated that there

were more than 18,000 armed prohibited persons in

California at the time the law was passed, and the APPS

program aims to target these violations. 2011 Cal. Stat. 5735,

§ 1(d).

As we have previously stated, “‘[i]t is self-evident’ that

public safety is an important government interest,” and

reducing “gun-related injury and death” promotes public

safety. Jackson, 746 F.3d at 965 (quoting Chovan, 735 F.3d

at 1139). Moreover, in light of Heller’s specific approval of 

“prohibitions on possession of firearms by felons and the

mentally ill,” 554 U.S. at 626–27, we have recognized that

public safety is advanced by keeping guns out of the hands of

people who are most likely to misuse them for these reasons. 

See e.g., Chovan, 735 F.3d at 1139–40; accord, Fortson v.

L.A. City Attorney’s Office, 852 F.3d 1190, 1193 (9th Cir.

2017). We therefore conclude that the State has established

a “significant, substantial, or important interest” in the

challenged law. Silvester, 843 F.3d at 821–22. The use of

the DROS fee to fund APPS thus satisfies the first prong of

intermediate scrutiny.

Under the second prong of the intermediate scrutiny test,

we require a “reasonable fit” between the government’s stated

objective and its means of achieving that goal, and we “have
BAUER V. BECERRA 15

said that ‘intermediate scrutiny does not require the least

restrictive means of furthering a given end.’” Id. at 827

(quoting Jackson, 746 F.3d at 969).

Given the State’s important interest in promoting public

safety and disarming prohibited persons under the first prong

of the test, there is a “reasonable fit” between these important

objectives and the challenged portion of the DROS fee. As

we have noted, the statute provides that the DROS fee is

intended to fund “costs associated with funding Department

of Justice firearms-related regulatory and enforcement

activities related to the sale, purchase, possession, loan, or

transfer of firearms.” Cal. Penal Code § 28225(b)(11). 

Because the APPS program involves the investigation of

illegally armed individuals and enforcement of firearms laws,

there is certainly a fit between the legislative objective and

the use of the DROS fee. Indeed, the unlawful firearm

possession targeted by APPS is the direct result of certain

individuals’ prior acquisition of a firearm through a DROSgoverned transaction.

The legislative history supports this conclusion. The

California Senate Committee considering the legislation

stated in its report that it “would clarify that [the Department]

is permitted to use DROS funds to pay for its efforts to

retrieve unlawfully possessed firearms and prosecute

individuals who possess those firearms despite being

prohibited by law from doing so.” Sen. Comm. on Public

Safety, Analysis of S.B. 819, 2011–12 Reg. Sess., at 11 (April

26, 2011). In addition, the legislative history indicates that,

like the use of the DROS fee to fund a background check at

the time of purchase, the use of the DROS fee to fund APPS

simply allows ongoing enforcement when some of “those

same individuals” later become prohibited from possessing a
16 BAUER V. BECERRA

firearm. Assem. Comm. on Appropriations, Analysis of S.B.

819, 2011–2012 Reg. Sess., at 2 (July 6, 2011).

Moreover, we have emphasized that “‘intermediate

scrutiny does not require the least restrictive means of

furthering a given end.’” Silvester, 843 F.3d at 827 (quoting

Jackson, 746 F.3d at 969). Accordingly, the fact that not all

DROS fee payers will later be subject to an APPS

enforcement action does not signify that this use of the DROS

fee is unconstitutionally broad. Cf. Jackson, 746 F.3d at 967

(concluding that the fit was reasonable even though the

regulation could have been drawn more narrowly, because the

burden was minimal and intermediate scrutiny does not

require the least restrictive means). Thus, with the limited

burden and the close relationship between firearm acquisition

and monitoring of illegal possession, the State has established

the requisite “reasonable fit” to satisfy the second prong of

the intermediate scrutiny test.

C

Bauer argues that traditional Second Amendment

intermediate scrutiny should not apply because this case

involves a fee. He urges us to apply the line of “fee

jurisprudence” that was developed by the Supreme Court in

the First Amendment context to assess the constitutionality of

fees imposed on the exercise of constitutional rights. We

have recognized that there are other elements of Second

Amendment jurisprudence that have First Amendment

analogies. See Jackson, 746 F.3d at 960. However, we need

not—and do not—decide whether First Amendment fee
BAUER V. BECERRA 17

jurisprudence applies here because the fee easily survives that

inquiry.

5

Under First Amendment fee jurisprudence, the two

seminal cases on the constitutionality of fees are Cox v. New

Hampshire, 312 U.S. 569 (1941), in which permit and fee

requirements for parades and public rallies were upheld, and

Murdock v. Pennsylvania, 319 U.S. 105 (1943), in which

license and fee requirements for solicitors were struck down. 

In Cox, the Supreme Court explained that a fee imposed on

the exercise of a constitutional right must not be a general

“revenue tax,” but such a fee is lawful if it is instead designed

“to meet the expense incident to the administration of the act

and to the maintenance of public order in the matter

licensed.” 312 U.S. at 577. The Court reiterated this

principle in Murdock, striking down the licensing fee in that

case because it was “not a nominal fee imposed as a

regulatory measure to defray the expenses of policing the

activities in question.” 319 U.S. at 113–14. Following this

precedent, we have similarly held that a “state may . . .

impose a permit fee that is reasonably related to legitimate

content-neutral considerations, such as the cost of

administering the ordinance” in question, as long as the

ordinance or other underlying law is itself constitutional. S.

Oregon Barter Fair v. Jackson Cty., 372 F.3d 1128, 1139 (9th

Cir. 2004).

Attempting to apply this precedent in the Second

Amendment context, Bauer argues that the APPS program is

5 The fact that the State did not contest which form of intermediate

scrutiny applied before the district court, but only raised that question on

appeal, also cautions against us deciding an issue not fully developed in

the district court.
18 BAUER V. BECERRA

not sufficiently related to the DROS fee because targeting

illegal firearm possession via APPS is not closely related to

the legal acquisition of firearms governed by the DROS

requirements. Because he defines the regulated activity as

being limited to firearm acquisition, Bauer contends that the

cost of APPS cannot be considered an “expense[] of policing

the activities in question.” Murdock, 319 U.S. at 113–14. 

However, this argument is undermined by Bauer’s own

contention, under the first step of Heller, that the DROS fee

burdens the Second Amendment right of possession precisely

because it governs essentially all means of acquiring a

firearm in California. See Cal. Penal Code §§ 27545, 28050,

28055(b). In light of this reality, DROS-regulated firearm

transactions are in fact a close proxy for subsequent firearm

possession, and targeting illegal possession under APPS is

closely related to the DROS fee.

Moreover, despite Bauer’s emphasis on the fact that only

a small subset of DROS fee payers will later become illegal

possessors targeted by APPS, we note that essentially

everyone targeted by the APPS program was a DROS fee

payer at the time he or she acquired a firearm. Cf. Silvester,

843 F.3d at 827 (explaining that intermediate scrutiny does

not require least restrictive means). Indeed, each instance of

firearm possession targeted by APPS is a direct result of a

DROS-governed transaction. Along similar lines, Bauer

concedes that it is appropriate for the State to use the DROS

fee to fund a background check at the time of purchase. The

APPS program is, in essence, a temporal extension of the

background check program. The APPS program therefore,

can fairly be considered an “expense[] of policing the

activities in question,” Murdock, 319 U.S. at 113–14, or an
BAUER V. BECERRA 19

“expense incident to . . . the maintenance of public order in

the matter licensed,” Cox, 312 U.S. at 577.6

Because a tax on a constitutional right may not be used to

raise general revenue, Cox, 312 U.S. at 577, Bauer contends

that the DROS fee may not exceed the “actual costs” of

processing a license or similar direct administrative costs. 

But in fact, nothing in our case law requires that conclusion.7

While we have not previously decided whether ongoing

enforcement costs may be considered part of the “expense

incident to . . . the maintenance of public order in the matter

licensed,” Cox, 312 U.S. at 577, several of our sister circuits

have held that “it is permissible to include the costs of both

administering and enforcing [the relevant licensing or

permitting statute] in determining the constitutionality of [a]

registration fee.” Nat’l Awareness Found. v. Abrams, 50 F.3d

1159, 1166 (2d Cir. 1995) (upholding a registration fee on

charitable organizations, fundraisers, and solicitors); see also

Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville &

6 The other federal courts that have considered firearm licensing or

registration fees under the fee jurisprudence framework have similarly

upheld those fees, each of which was larger than the challenged portion of

the DROS fee here. Heller III, 801 F.3d at 301; Kwong, 723 F.3d at 166;

Second Amendment Arms v. City of Chicago, 135 F. Supp. 3d 743, 766

(N.D. Ill. 2015); Justice v. Town of Cicero, 287 F. Supp. 2d 835 (N.D. Ill.

2011). Again, although the DROS fee is not a licensing fee, it is

analogous in the sense that all those who possess a firearm must pay the

fee at the outset.

7

 The case Bauer cites in support of this argument, Kaplan v. Cty. of

Los Angeles, 894 F.2d 1076 (9th Cir. 1990), does not actually require that

fees be limited to the direct costs of processing licenses or permits; it

merely states that the statute in that case was clearly narrowly drawn

because it allowed local agencies to “recover actual costs alone,” id. at

1081.
20 BAUER V. BECERRA

Davidson Cty., 274 F.3d 377, 395–96 (6th Cir. 2001)

(accounting for ongoing enforcement costs in upholding a

licensing fee on nude dancing establishments).

Moreover, where the initial fee enables an activity that

has ongoing impacts, such as the purchase of firearms or the

licensing of an adult entertainment establishment as in Deja

Vu, there is an even stronger argument for including ongoing

enforcement as part of the costs of “policing the activities in

question.” Murdock, 319 U.S. at 113–14. To the extent that

fee jurisprudence applies in the Second Amendment context,

therefore, we conclude that enforcement costs are properly

considered part of the “expense[] of policing the activities in

question” permitted under Murdock and Cox. Murdock,

319 U.S. at 113–14. Accordingly, the enforcement activities

carried out through the APPS program are sufficiently related

to the DROS fee under this line of jurisprudence, and the

second prong of the intermediate scrutiny test is therefore

satisfied even considered through the lens of First

Amendment fee jurisprudence, which may or may not apply.

D

In sum, the use of the DROS fee to fund APPS survives

intermediate scrutiny because the government has

demonstrated an important public safety interest in this

statutory scheme, and there is a reasonable fit between the

government’s interest and the means it has chosen to achieve

those ends.8 Accordingly, the district court did not err in

8

In reaching our conclusion, we need not, and do not, decide what the

result would be if the DROS fee were used to enforce firearm possession

laws in general through the APPS program, or otherwise, rather than
BAUER V. BECERRA 21

concluding that the use of the DROS fee to fund APPS,

through California Penal Code § 28225, does not violate the

Constitution.

IV

Where a law poses a minimal burden on core Second

Amendment rights in furtherance of an important government

interest, the federal courts have universally upheld it. We do

the same here. In doing so, we need not—and do not—

decide whether the fee implicates the Second Amendment,

nor do we decide whether First Amendment fee jurisprudence

should be applied in analyzing whether the provision passes

the intermediate scrutiny test. Because, even assuming the

Second Amendment applies in this context, California’s use

of the DROS fee to fund the APPS program survives

intermediate scrutiny under either test, we affirm the district

court’s grant of summary judgment in favor of the State.

AFFIRMED.

firearm possession laws as they apply to those who legally acquired a

firearm by paying the fee.