F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

B A R R Y B A U E R ; N I C O L E F E R

R Y ; J E F F R E Y H A C K

E R ; N A T I O N

A L R I F L E A S S O C I A T I O N O F A M E R I C A , I N C .; C A L I F O R

N I A R I F L E A

N D P I S T O L A S S O C I A T I O N F O U

N D A T I O N ; H E R

B B A U E R S P O R

T I N G G O O D S , I

N C ., Plaintiffs-Appellants
,

v

.

X A V I E R B E C E R

R A , in his official capacity as Attorney

General of the State of California; S T E P H E N L I N D L E Y , in his official capacity as Acting Chief of the California Department of J ustice; D O E S , 1

– 10,

Defendants-Appellees. N o. 15-15428

D.C. No. 1:11-cv-01440- L J O-MJ S

OPI NI ON

A ppeal from the United States District Court for the Eastern District of California L awrence J . O’Neill, Chief J udg e, Presiding

Arg ued and Submitted April 19, 2017 San F rancisco, CaliforniaB A U E R V

. B E C E R

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B efore: Sidney

R. Thomas, Chief J udg e, and F erdinand F

. F ernandez a

nd Mary H. Murg u ia, Circuit J udg es.

F iled J une 1, 2017

Opinion by

Chief J udg e Thomas

SUMMARY *

Civil Rights

The panel affirmed the district court’s summary judg ment in favor of the State of California in a n ac t ion challeng ing
, on Second Amendment g rounds, Cal i fornia Penal Code § 2 8225, which requires the allocation of $5 of a $ 1 9 fee on firearms transfers to fund enforcement ef f o r t s ag ainst i l l e g a l f

irearm p u rchasers throug h California’s Armed Prohibited Persons Sy stem.

The panel held that the u se of the fee to fund enforcement

e f f orts surv i v e d i n t e r m e d i a t e s cr u t i n y b ec a u s e t h e g overnment h as demonstrated an important pu b l ic safety interest in this statutory scheme, and there was a reasonable fit between the g overnment’s interest and the m e a n s i t has chosen to achieve those e nds. According ly
, the district court did no t e r r i n concluding that the use of the fee to fund the C a l ifornia’s Armed Prohibited Persons Sy stem prog ram, throug h California Penal Code § 28225, did n o t v i o late the Constitution.

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.B A U E R V

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COUNSEL

Erin E. Murphy (arg

ued), Paul D. Clement, and Edmund G

. L aCour J r., B ancroft PL L C, W ashing ton, D.C.; C.D. Michel, Sea n A

. Brady
, and Anna M. B arvir, Michel & Associates P.C., L ong B e ach, California; for Plaintiffs-Appellants.

Anthony R. Hakl (arg

ued), Deputy Attorney General; Stepan A. Hay tay an, Supervising Deputy Attorney General; D oug las J

. Woods, Senior Assistant Attorney General; Off i c e of the Attorney General, Sacramento, California; for DefendantsAppellees.

Sarah E. Tremont and Elliott Schulder, Coving ton & B urling L L P, Washing ton, D.C.; J ona t h a n E. L owry a nd K elly S ampson, B rady Center to Prevent Gun V iolenc e, W a s hing ton, D.C.; f

or Amicus Curiae B rady Center t o Prevent Gun Violence.

Efrain Staino, Ruth N. B orenstein, and J ordan Eth, Morrison & F oerster L L P, San F rancisco, California, for Amicus Curiae L aw Center to Prevent Gun Violence.B A U E R V

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OP INION

THOMAS, Chief J udg e :

I n this appeal, we consid e r w h e t h e r C a lifornia’s allocation of $5 of a $ 19 fee on firearms transfers to f und enforcement efforts ag ainst illeg al firearm purchasers violates the Second Amendment. W e conclude that, even if c ollection and u se o f the fee f alls within the scope of the Second Amendment, the provision survives intermedia te scrutiny a nd is therefore constitutional. W e affirm the judg ment of the district court.

I

California reg ulates firear m s ales and transfers throug h the Dealer’s Record of Sal e ( “ D ROS”) sy stem, which was created a c entury ag o and has been u pdated throug h out the intervening y ears. See 1917 Cal. Stat. 221, § 7. T h e DROS
sy stem today r equires that “any sale, loan, or t r a n s f e r o f a firearm” be made throug h a licensed dealer, Cal. Penal Code § § 27545, 28050(a), and it requires dealers to ke e p standardiz ed records o f all such transactions, id. at §§ 28100, 28160 et seq. This statutory framework al s o r equires the California Department of J ustice (“the Department”) to run backg round checks prior to purchase, and to notify the dealer if a prospective firearm purchaser is prohibited from possessing a g un under federal law or under c ertain provisions of California law relating to prior convictions a nd mental illness. Cal. Penal Code § 28220.

The DROS sy stem allows the Department to charg e a fee, known as the DROS fee, to cover the cost o f running theseB A U E R V

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backg round checks a n d other related ex penses. 1 Cal. Penal Code § 28225. Althoug h the use of the DROS fee was orig inally limited to b a ckg round checks, 1982 Cal. Stat. 1472, § 129, this provision w as later e x panded to allow the fee to be used for “the c osts asso ci ated with funding Department o f J ustice firearms-related reg ulatory and enforcement activities related to the sale, purchase, loan, or transfer of firearms,” a s well as c ertain costs incurred by other a g encies in compliance with the record-keeping and notification requirements of the backg round check provisions. Cal. Pen a l C ode 12076(e) (repealed 2010, replaced by Ca l

. P e nal Code § 28225). I n 1995 the leg islatu re capped the DROS fee, with inflation

a d j ustment to be set b y reg ulation. Cal. Penal C o d e § 28225(a). With inflation, t h e fe e was most recently set at $19 in 2004. Cal. Code Reg s. Tit. 11, § 4001.

I n 2011, the California L eg islatu r e f u rther e x panded the permissible uses of the DROS fee by enacting the law that is challeng ed in this case. This law, c ommon l y referred to a s Senate B ill 819, chang ed the lang uag e of § 28225 to allow the DROS fee to be used for “firearms-related r egu l a t o r y a nd enforcement activities relat ed to the sale, purchase, possession
, loan, or transf e r of f irearms.” Cal. Penal Code § 2 8 2 25(b)(11) (emphasis added). I n effect, this chan ge allows the Department to use a portion o f the DROS fee “for the additional, limited p urpose” of funding enforcement efforts targ e ting illeg al firearm possession a fte r the point o f sale, throug h California’s A rmed Prohibited Persons Sy stem (“APPS”). 2011 Cal. Stat. 5735, § 1(g ).

1 T h e statu te p erm its th e Dep artm en t to “ req u ire th e d ealer to ch arg e each f irearm p u rch aser a f

ee,” w h ich is th en

rem itted to th e Dep artm en t. Cal. P en al co de § 2 8 2 2 5

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The A PPS prog ram, established in 2001, enf orces California’s prohibitions on f i r e a rm possession by identify ing “persons who have ownership or possession of a firearm” y et who, subsequent to their leg al a cquisition of the firearm, have later come to “fall within a c lass o f p e rsons who a re p r o h i b ited from owning or p ossessing a firearm” due to a felony or violent misdemeanor conviction, domestic violence restraining o rder, or mental h ealth-re l a t e d prohibition. Cal. Penal Code §§ 30000, 30005. E ssentially
, these a r e people who passed a b ackg round check a t t h e time of purchase but would no long er pass that check, y et still possess a firearm.

The s y stem identifies such people b y cross-referencing the Conso lidated F irearms I nformation Sy stem (“CF I S”) database of people who possess a firearm, which is g enerated primarily throug h DROS reporting
, ag ainst criminal records, domestic violence r estraining o r der records, and mental health records. Cal. Penal Code §§ 1 1 1 06, 30005. This
process g e nerates a list of “armed prohibited persons,” which th e D ep a r t m e nt uses for “investig ating
, disarming
, apprehending
, and ensuring the p rosecution” of persons w ho have become prohibited from firearm possession.

Since the enactment o f Senate B ill 819 in 2011, the APPS
prog r am—including both the identification of armed prohibited persons a

nd the D epartment’s related enforcement efforts confiscating firearms f rom those people—has been partially funded by DROS fees. 2 However, only a portion o f the DROS f

e e i s used to fund APPS: the e vidence in the record before us sug g ests that the cost of running backg r ound

2 Mo st n otab ly
, in 20 1 3
, th e leg islatu re ap p ro p riated $ 2 4 m illio n f ro m th e DROS A cco u n t to th e A P P S p ro g ram

. 2 0 1 3 Cal. Stat. 2
, co d ified a t Cal. P en al Co d e § 3 0 0 1 5

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checks a nd processing DROS records is approx imately $14, meaning that only the remaining $5 o f e a c h DROS fee is available for APPS funding

.

B a rry B auer and five other individuals and en t ities (collectively
, “B auer”) challeng e the use of this $5 portion o f the DROS fee 3 to fund APPS, arg u ing that it viola t es the Second A m e ndment because “the criminal misuse o f fi r e a r m s” targ e ted by the APPS is n o t sufficiently related to the leg al acquisition of firearms on which the fee is imposed. On t h e s e g r ounds, B auer filed suit ag ainst the Attorney General of California and the Chief of the C a l ifornia Department of J u stice B ureau of F irearms (collectively
, “the State”) in Aug ust 2011, seeking declaratory and injunctive relief under 42 U.S.C. § 1983. B a uer subsequently fil ed a n amended complaint adding al leg ations reg arding the 2013 appropriation of funds from the DROS account to the APPS
prog r am.

The district court g r anted summary j udg ment for the State, concluding that the DROS f e e does not v i o l a t e the Constitution because it falls outside the scope of the Second Amendment as a “condition[ or] q ualif i c a t ion[ ] on the commercial sale of arms.” Dist. o f Columbia v. Heller
, 554 U .S. 570, 626–27 (2008). I n the alternative, the district
court c oncluded that the D ROS fee would survive heig htened scrutiny even if the Second A mendment w ere implic a ted, because it places only a “marg inal burden” on the o f the core Second Amendment rig ht. B auer timely appealed.

3 B au er ch allen g es o n ly th e a p p r o x im ately $ 5 p o rtio n o f t h e DROS f ee th at ex ceed s th e Dep artm en t’ s actu al co s ts f o r ru n n in g b ack g ro u n d ch eck s an d p ro cessin g DROS reco rd s.B A U E R V

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The district court had jurisdiction under 28 U.S.C. § 1331, and we h a ve jurisdiction to hear B auer’s appeal under 28 U.S.C. § 1291. “W e r e v i e w a district court’s g rant o f

s u m mary judg ment de novo.” P eruta v

. Cty. of San D i eg o , 824 F .3d 919, 925 (9th Ci r

. 2 016) (en b a nc) (citing Sanchez

v. Cty. of San Diego
, 4 64 F.3d 916, 920 (9th Cir. 2006)). Similarly
, “[ w] e review constitutional q uestions de n o vo.” Id. (citing Am. Acad. o

f Pain Mgmt. v. Joseph
, 353 F .3d 1099, 1103 (9th Cir. 2004)).

I I

T h e Second Amendment provides: “A well reg ulated Militia, being necessary to t h e s ecurity of a f ree State, the rig ht of the people to k ee p and bear Arms, shall not be infring ed.” U.S. Const. amend. I I

. I n the Supreme C o urt’s seminal decision on Second Amendm ent rig hts, District of Columbia v. Heller , the Court articulated an individual rig ht
to bear arms but ex plained that this h o ldi n g s h o uld not “be taken to cast doubt o n long standing prohibition s on the possession of f

irearms by f

e lons and the mentally ill, or laws forbidding the carry

ing of firearms in sensitive places such a s schools and g overnment building s, or laws impos ing conditions and qualifications on the commercial sale o f arms.” 554 U .S. at 626–27. The Co u rt described these categ ories of r eg ulation as “presumptively lawful” a nd noted
t h at this list was not intended to be ex h austive. Id. a t 6 2 7 n.26.

I n accord with many of o ur s i s t e r c ircuits, “we have discerned from Heller ’s a pproach a two-step Second A m e n dment inquiry .” J ackson v

. City & Cty. of S.F

. , 746 F .3d 953, 960 (9th Ci r

. 2 0 1 4 ) (citing United States v

. Chovan
, 735 F .3d 1127, 1136–37 (9th Cir. 2013)); see also,B A U E R V

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e.g. , United States v. Chester
, 628 F. 3 d 6 73, 6 8 0 (4th Cir. 2010); United States v. Reese
, 627 F.3d 792, 800 (10th Cir. 2010); United States v

. Marzzarella
, 614 F .3d 8 5, 89 (3d Cir. 2010). This two-step inquiry “( 1 ) a s k s whether the cha lleng e d law burdens conduct protected by the Second Amendme n t and (2) if so, directs c ourts to apply an appropriate level of scrut i n y

. ” J ackson
, 746 F .3d at 960 (citing Chovan
, 735 F

. 3d at 1136). I n determining w hether a g iven reg ulation f

a lls within the scope of the Second A m e n dment under the first step of this inquiry
, “we a s k whether the reg ulation is one of the ‘ presumptively lawful
reg ulatory measures’ identified in Heller
, or whether the

r e c o rd includes persuasive historical evidence establishing
t h a t the reg u lation at issue imposes prohibitions that fa l l 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, B auer contends that the challeng ed p o r tion of the DROS fee burdens conduct protected by the S e c o n d Amendment b ecause it applies to all f i r e a rm transfers, not just those that would be c onsidered “commercial sale” in the ordinary sense. Cal. Penal Code §§ 27545, 28050, 28055(b). Thus, B auer arg ues that the DROS fee does not belong to the categ ory of “conditions a

nd qualifications on the commercial sale o f a rms ” t h at H

eller 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 reg ulating transactions conducted throug h c ommercial firearm dealers, the DROS fee is properly considered a condition on the commercial sale o f

arms and thus falls outsid e the scope of the Second Amendment under Heller ’s first step.B A U E R V

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W e need n ot decide this question because the challeng ed portion of the DROS f

ee would survive heig htened scrutiny

even if it implicat es Second Amendment protections. Therefore, for purposes of this analy sis, we assume, without deciding
, that the chall eng ed f ee burdens conduct falling within the scope of the Second Amendment. See Silvester v

. Harris
, 843 F .3d 8 16, 8 26–27 (9th Cir. 2016) (assuming without deciding that waiti ng period laws fall within the
scope o f t h e Second Amendment at step one); F y ock v

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

one because firing

- capacity r eg u lat ions would survive heig htened scrutiny even if they fell with i n the scope o f the Second Amendment).

I I I

I f a law burdens conduct p rotecte d by the Second Amendment, as we assume, but d o not d e c i d e that this o ne does, Heller mandates some level of hei gh t ened scrutiny

. 5 5 4 U.S. at 628 & n.27. W e conclude that intermediate scrutiny is the a

ppropriate standard f

o r analy z ing the f

ee scheme challeng ed here, and we hold that t h e fee survives under this standard.

A

B e cause Heller d id not specify a particular lev e l o f scruti n y for all Second Amendment challeng es, courts determine the appropriate level by considering “ (1) how close th e c halleng ed law comes to the core of the Second Amendment rig ht, and (2) the severity of the law’s b urden on t hat rig ht.” Silvester
, 843 F .3d at 821 (citing Ja ck s o n , 746 F .3d at 960–61). Heller identified the core of the Second Amendment as “the rig ht of law-abiding
, responsible citiz ensB A U E R V

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to use arms in defense of hearth and home.” 554 U.S. at 635. G u i d ed by this understanding
, our test for the appropria t e level of scrutiny amounts to “a s liding scale.” S ilvester
, 843 F .3d at 8 21. “A law that im p o s e s s u c h a severe restriction on the fundam e n t a l r ig ht of self defense of the home th at it amounts to a destruction of the Second Amendment r ig ht i s u nconstitutional under a ny level o f scrutiny .” Id. ( c i t ing Chovan
, 735 F .3d at 1138). F urther down the scale, a “law that implicates the core of the Second Amendment r i gh t and severely burdens that rig ht warrants strict scrutiny

. Otherwise, interm e diate scrutiny is appropriate.” Id.

Here, B auer arg

ues that the core rig

ht to possess and use

a firearm in the home i n c l udes a corresponding rig ht to purchase a firearm, a

nd that t h e core rig ht is therefore burdened by the DROS fee. B ut even i f w e a s s u me that the rig ht to possess a firearm includes the rig ht to purchase one, the burden on that rig ht is ex ceeding ly minimal here.

B a uer has neither alleg e d

nor arg ued that the $19 DROS fe e

— l e t alone the smaller, $5 challeng ed portion of the fee—has any impact o n the plaintiffs’ a c tual ability to obtain and possess a firearm. A lth o u g h Ba uer sug g ests that a hy pothetical $1 million fee could e ffectively eliminate the
g eneral public’s ability to a cquire a firearm, that e x treme comparison underscores the m i n i mal nature of the burden he re

. I ndeed, in considering a fee much larg er than the o ne here, the Sec o n d Circuit sug g ested in Kwong v. B loomberg that even a $340 licensing f e e m i g h t not b e a “substantialB A U E R V

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burden” o n Second Amendment rig hts.” 4 723 F .3d 160, 167 (2d Cir. 2013). On the facts before us, the challeng ed portion of the DROS fee does not “severely burden[ ] ” o r even

me a n i n g fully impact the core of the Second A mendment rig ht, and intermediate scrutiny is therefore appropriate. See Silvester
, 843 F .3d at 821 ( c iting Chovan
, 735 F .3d at 1138).

This approach is c onsistent with our past cases analy zing the appropriate level of scrutiny under the secon d s t e p o f Heller
, as w e h ave repeatedly applied intermediate scrutiny in cases where we h ave reached this step. Silvester
, 843 F .3d
at 823 (apply ing intermediate s c r u t i ny to a law mandating ten-day waiting periods for the purchase of firearms); Fyock
, 779 F .3d a t 999 (apply in g i n t e rmediate scrutiny to a law prohibiting the possession of larg e-capacity mag az ines); Jackson
, 746 F .3d at 965, 968 (apply ing intermediate scrutiny
to laws mandating certain handg u n storag e procedures in homes and banning the sale of hollow

- p oint ammunition in San F rancisco); Chovan
, 735 F .3d at 1 1 38 (apply ing intermediate scrutiny

to a law prohibiting domestic violence misdemeanants from possessingfirearms).

Similarly
, our sister circuits have o v e r w helming ly a

pplied intermediate scrutiny w hen analy z ing Second Am en dment challeng es under H

eller ’s second step. See, e.g. , Kwong
, 723 F

. 3d a t 168 & n.16 (law imposing a $340 licensing fee on all handg uns); NRA v. McCraw
, 719 F .3d 338, 348 (5th Cir. 2013) (law prohibiting 18-to-20- y e a r-olds from carry ing handg uns in public); W

oollard v. Gallagher
, 712 F. 3d 865,

4 A lth o u g h th e DROS f

ee is n o t a l icen sin g f

ee, it is an alo g o u s in th e

sen se th at it ap p lies to essen tially all m ean s o f acq u irin g a f irearm
, j u st as

a licen sin g f

ee a p p l i e s t o all th o se w h o acq u ire an d p o ssess a f irearm

u n d er a licen sin g o r reg istratio n sch em e.B A U E R V

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8 7 6 (4th Cir. 2013) ( law requiring a “g ood and substantia l reason” f or issuance of a handg un permit); Kachalsky v. Cty. of W estchester
, 701 F .3d 81, 96–97 ( 2d Cir. 2012) (law requiring a showing of “proper cause” to obtain a concealed
carry permit); Heller v. Di s t

. o f Columbia (

Heller II)
, 670 F .3d 1244, 1256–58, 1261–62 ( D.C. Cir. 2011) (laws imposing reg istra t i o n requirements on all firearms a nd banning assault weapons a nd larg e-capacity mag az ines); Reese
, 627 F .3d at 802 (law p r o h i b i ting possession of all f i rearms while subject to a domestic protection orde r ) ; Marzzarella
, 61 4 F.3d at 97 (law effectively p rohibiting possession of fire arms with obliterated serial numbers); United S tates v. Skoien
, 614 F .3d 638, 641 (7 t h C i r

. 2 010) (law prohibiting domestic violence misdemeanants from possessing f

irearms); b u t s e e Ezell v

. City of Chicago
, 651 F .3d 684, 7 08 (7th Cir. 2011) (apply ing “a more r ig orous standard” than intermediate scrutiny
, “if n ot q u ite ‘ strict scrutiny ,’” to a law mandating firing- r a n g e training as a prerequisite to g un ownership but b anning a ll firing rang e s within the City of Chicag o). I n short, interme d i ate scrutiny is the appropriate standard for the m i n i m al burden posed b y the portion of the DROS fee challeng ed in this case.

B

Our i ntermediate scrutiny test under the Second Amendment requires that “(1) the g overnment’s stated objective

. . . be sig n ificant, substantial, o r i m portant; a nd ( 2 ) t h e re

. . . be a ‘reasonable fit’ b etween the c hallen g e d
reg ulation and the asserted objective.” Silvester
, 843 F

. 3d at 821–22 ( quoting Chovan
, 7 35 F

. 3d at 1 139). The challeng ed portion of the DROS fee survives this test.B A U E R V

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The g o vernment’s stated objective for using a portion of
t h e D ROS f

ee to fund APPS, a s ex pressed in the leg islati v e finding s in Senate B ill 8 19, is to targ et “[ t] h e illeg al possession of

. . . firearms” because illeg al p oss e s s i o n “presents a substantial dang er to p ublic safety

. ” 2011 C a l

. Stat. 5735, § 1 (d). Th us, the State asserts that its g oal is “improving public safety b y d isarming individuals who a re prohibited from o wning or possessing firearms. ” The leg islative finding s in Senate B ill 8 1 9 e s t imated that there

were more than 18,000 armed prohibited p e rsons in Ca l i fo rnia at the time the law was passed, and the APPS
prog r am aims to targ et these v iolations. 2 011 Cal. Stat. 5735, § 1(d).

As we have p reviously stated, “‘[ i] t is sel f

- e vident’ that public safety is an importa n t g o vernment interest,” a nd reducing “g u n-related injury and d e ath” p romotes public safety

. Jackson
, 746 F .3d at 965 (quoting Chovan
, 735 F .3d
at 1139). Moreover, in lig h t of H eller ’s specific approval o f “prohibitions on possession of firearms by felons and the mentally ill,” 554 U.S. a t 626–27, we h a v e recog niz ed that public safety is advanced by k eeping g uns out o f the hands o f people who a

re most likely to misuse them for these reasons. See e .g. , Chovan
, 735 F

. 3d a t 1139–40; acco rd
, Fortson v

. L.A. City Attorney’s Office
, 852 F. 3 d 1 190, 1193 (9th Cir. 2017). W e t herefore conclude that the State has e stablished

a “ sig nificant, substantial, or i m portant interest” in the challeng ed law. Silvester
, 843 F

. 3d a t 821–22. The use o f the DROS fee t o fund APPS thus satisfies the first prong o f intermediate scrutiny

.

Under the second prong of the intermediate scrutiny test,

we require a “reasonable fit” between the g overnment’s stated objective and its means of achieving that g oal, and we “haveB A U E R V

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said that ‘ intermediate scrutiny does n o t require the least

r e strictive means of f

urthering a g iven end.’” Id. at 8 2 7 (quoting Jackson , 746 F

. 3d at 969).

Given the State’s important interest in promoting pub l i c safety and disarming prohibited persons under the first prong of the test, there is a “reasonable fit” between these important objectives and the challeng ed portion of the DROS fee. A s

we have n o t e d
, the statute provides that the DROS fee is intended to fund “costs associated with funding Department of J u stice firearms-related r eg u latory and enforcement

ac t i v ities related to the sale, purchase, possession, loan, o r transfer of f

irearms.” Cal. Penal Code § 2 8225(b)(11). B ecause the A PPS prog ram involves the investig ation o f illeg ally armed individuals and enforcement of firearms laws, there is certainly a fit bet w een the leg islative objective a nd the use of the DROS f

e e

. I ndeed, t he unlawful firearm possession targ eted by APPS is the d irect res u l t o f c ertain individuals’ prior acquisition o f a firear m t h r o ug h a DROSg overned transaction.

The leg islativ e h i story supports this conclusion. The Califor nia Senate Committee considering the leg islation stated in its report that it “would clarify that [ the Department] i s p e r m i t ted to use DROS funds to pay for its efforts to retrieve unlawfully possessed firear m s and prosecute individuals w ho possess those firearms despite b e i ng prohibited by law from doing so.” Sen. Comm. on Public Safety
, Analy sis of S.B

. 819, 2011–12 Reg

. Sess., at 11 (April 26, 2011 )

. I n addition, the leg islative history indicates that, like the use of the DROS fe e t o fu n d a backg round check at the time of purchase, the use of the DROS fee to fund APPS simply allows ong oing enforcement w hen some of “those

same individuals” later become prohibited from possessing aB A U E R V

. B E C E R

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firearm. Assem. Comm. on Appropriations, Analy sis of S.B

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

Moreover, w e have emphasiz ed that “‘intermediate

s c r utiny does not require the least restrictive means o f furthering a g iven end.’” Silvester
, 843 F .3d a t 827 (quoting Jackson , 746 F .3d at 969). According ly
, the f act that not all DROS f e e pay ers will later be subject to an APPS enforcement action does n ot sig nify that this use of the DROS fee is unconstitutionally broad. Cf. Jackson
, 746 F .3d at 967 (c o n cluding that the fit was r easonable even thoug h the
reg ulation c ould have been drawn more narrowly
, because the b u r den was minimal and intermediate scrutiny does not require the least restrictiv e m e a ns). Thus, with the limited burden and the close relationship between firearm acquisition and monitoring of illeg a l possession, the State has e stablished the req u isite “reasonable fit” to satisfy the second p rong o f the intermediate scrutiny test.

C

B a uer arg ues that traditional Second A mendment intermediate scrutiny should not apply because this case involves a fee. He urg es us t o a p p l y the line of “fee jurisprudence” that was developed by the Sup r eme Court in the F irst A mendment contex t to assess the constitutionality o f fees imposed on the ex e rcise of c onstitutional rig hts. W e have recog n iz ed that there are other e lements of Second Amendment jurisprudence tha t have F irst A mendment analog ies. See Jackson
, 746 F .3d at 960. However, we need not—and do n o t

— d ecide whether F irst Amendment f eeB A U E R V

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jurisprudence applies here because the f ee easily survives that inquiry

. 5

Under F irst Amendment fee j u risprudence, the two seminal cases on the constitutionality of fees are Cox v

. New Hampshire
, 312 U.S. 569 (1941), i n w h i c h permit and f ee requirements f

or parades and public rallies were upheld, a nd Murdock v. Pennsylvania
, 3 1 9 U.S. 105 (1943), in which license a nd fee requirements for solicitors were struck d own. I n Cox
, the Supreme Court ex p l a i n ed that a fee imposed on the ex ercise of a constitut i o n a l r ig ht must not b e a g eneral “revenue tax ,” but such a fee is lawful if it is instead desig n ed “to meet the ex pense incident to the administration of the act and to t h e m aintenance of public o rder in the matter licensed.” 312 U.S. a t 5 7 7. 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 reg ulatory measure to defray the ex pe n s e s of policing the activities in question.” 319 U.S. at 113–14. F ollowi n g this precedent, we have similarly held that a “ s t a t e may

. . . impose a permit fee that is reasonabl y related to leg itimate
content-neu t r a l considerations, such as the cost o f administering the ordinance” in question, as long a s the ordinance or other underly ing law is itself constitutional. S. Oregon Barter Fair v. J

ackson Cty.
, 372 F .3d 1128, 1139 (9th Cir. 2004).

At t e mpting to apply this precedent in the Second Amendment c ontex t, B auer arg ues that the APPS prog ram is

5 T h e f act th at th e State did n o t co n t est w h ich f o rm o f in term ed i ate

scru tin y ap p lied b ef

o re th e d istrict co u rt, bu t o n ly raised th at qu estio n on ap p eal, also cau tio n s a ga i n s t u s d ecid in g an issu e n o t f u lly d ev elo p ed in th e d istrict co u rt.B A U E R V

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n o t sufficiently related to the DROS fee because targ etin g illeg al firearm possession v ia APPS is not closely related to the leg al a cquisition of f irearms g overned by the DROS requirements. B ecause h e de f i n e s the reg ulated activity a s being limited to firearm acquisition, B auer contends that the
cost of APPS cannot be considered an “ex pense[ ] of policing the activities in question.” Murdock
, 3 19 U.S. at 1 1 3

– 1 4. However, this arg u ment is undermi n ed b y B auer’s o wn contention, under the first step of Heller
, that the DROS f ee burdens the Second Amendment rig ht of possession precisely be ca u s e it g overns essentially all means of acquiring a firearm in California. See Cal. Penal Code §§ 27545, 28050, 2 8 0 5 5 (b). I n lig ht of this reality
, DROS-reg u lated firearm transactions are in fact a c l o s e p r ox y for subsequent firearm possession, and targ e ting illeg al possessio n under APPS is closely related to the DROS fee.

Moreover, despite B auer’s emphasis on the fact that only

a small subset of DROS fee pay ers w ill lat e r b e co m e illeg al
possessors t a r g eted by APPS, we note that essentially
every one targ eted by the APPS pro gram was a DROS f ee pay er at the time he or she acquired a f irearm. Cf. S

ilvester
, 843 F .3d at 827 (ex plaining th a t intermediate scrutiny does
not require least restrictive means). I ndeed, each instance o f firearm p ossession targ e t ed by APPS is a direct result of a DROS-g overned transaction. Along similar lines, B auer concedes that it is appropriate for the State to use the DROS fee to fund a backg round check at the time of purchase. The APPS prog ram i s , in essence, a temporal ex tension of the backg round check p rog ram. The APPS prog ram therefore,

can f airly be considere d a n “ ex p ense[ ] o f policing the
act i v i t ies in question,” Murdock
, 3 19 U.S. at 113–14, or anB A U E R V

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“ ex pense incident to

. . . the maintenance of public order i n the matter licensed,” Cox , 312 U.S. at 577. 6

B e cause a tax on a constitutional rig ht may not be used to raise g eneral revenue, Cox
, 312 U.S. at 577, B auer contends that the D R O S fee may not ex c eed the “actual c osts” o f processing a license or similar direct administ r a tive costs. B ut in fact, nothing in our c ase law requires that conclusion. 7 W h ile w e have not p reviously decided whether ong oing enforcement costs may be c onsidered p art of the “ex pense incident to . . . the maintenance of public order in the matter licensed,” Cox
, 312 U.S. at 5 77, several of our sister c ircuits h a v e held that “it is permissible to include the costs o f b o t h administerin g a nd enforcing [ the relevant licensing o r permitting statute] in determining the constitutionality of [ a]
reg istration f

ee.” Nat’l Awareness Found. v. Abrams
, 50 F .3d 1159, 1166 (2d Cir. 1995) ( upholding a re gistration fee on charitable org aniz ations, fundraisers, and solicitors); see also Deja Vu of Nashville, Inc. v. Metro. G o v ’ t o f Nashville &

6 T h e o th er f

ed eral co u rts th at h av e co n si d e r e d firearm licen sin g or reg istratio n f

ees u n d er th e f

ee j u risp ru d en ce f

ram ew o rk h av e sim ilarly

u p h eld th o se f

ees, each o f w

h ich w as l arg er th an th e ch allen g ed p ortio n of th e DROS f

ee h ere. Heller III

, 80 1 F.3 d at 3 0 1 ; Kwo n g , 7 2 3 F.3 d at 1 66 ; S e c o n d Amen d

men t Arms v. City of Ch ica g o , 1 3 5 F. Su p p

. 3 d 7 4 3
, 7 6 6 (N.D. Ill. 2 0 1 5 ); Ju s tice v. To wn o f Cicero
, 2 8 7 F. Su

p p

. 2 d 8 3 5 (N.D. Ill. 2 0 1 1 )

. A g ain
, alth o u g h th e D ROS f ee is n o t a l icen sin g f

ee, i t i s

an alo g o u s in th e sen se th at all th o se w h o p ossess a f

irearm m u s t p a y th e f ee at th e o u

tset.

7 T h e case B au er cites i n su pp o rt o f t h is arg u m en t, Ka

p la n v. Cty. o

f Lo s An geles
, 8 9 4 F.2 d 1 0 7 6 (9 th Cir. 1 9 9 0 ), d o es n o t actu ally req u ire th at f ees b e l im i ted to th e d irect co sts o f pro cessin g l i c e n s e s o r perm its; i t

m erely states th at th e statu te in th a t ca s e w as clearly n arro w l y d r a w n b ecau se it allo w ed l o ca l a g e n c i es to “ reco v er actu al co sts alo n e,” id

. at 1 0 8 1

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

. 2 001) (accounting for ong o ing enforcement costs in u p holding a licensing fee on nude dancing establishments).

Moreover, where the initial fee enables an activity that has ong oing impacts, such as the purchase of firearms or the licensing of a

n adult entertainment establishme nt a s in Deja Vu
, there is an even strong er arg ument for including ong oing enforcement a s part of the costs of “policing the activities in question.” M

urdock
, 319 U.S. at 113–14. To the ex tent that fee jurisprudence applies in the Second Amendment contex t, therefore, we conclude that enforcement costs a re properly considered part of the “ ex pense[ ] of policing the activities in question ” permitted under Murdock and Cox

. Murdock
, 319 U.S. a t 113–14. A ccording ly
, the enforcement activities carried out throug h the A PPS prog ram are sufficiently r elated
to the DROS fee under this line of j u risprudence, and the second prong of the intermediate scrutiny tes t i s t herefore satisfied even considered throug h the lens of F irst Amendment f

ee jurisprudence, which may or may not apply

.

D

I n sum, the use of the DROS f ee to fund APPS s u r v i v e s i n t e rm e d i a t e s cr u t i n y b e c a u s e the g overnm e n t h a s demo n s t r a ted an important public safety interest in this statutory scheme, and there is a reasonable fit between the
g overnment’s interest a

nd the means it has chosen to achieve those ends. 8 A ccording ly
, the di s trict court did not err in

8 In reach i n g o u r co n clu sio n , w e n eed n o t, an d d o n o t, decid e w h at th e

resu lt w o u l d b e i f th e DROS f ee w ere u sed to en f

o rce f irearm p o s sessio n law s in g en eral t

h ro u g h th e A P P S p ro g ram , o r o t h erw i se, ra t he r th anB A U E R V

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c oncluding that the use of the DROS fee to fund APP S
, throug h California Penal Code § 28225, does not violate the Constitution.

I V

W h ere a law p oses a minimal burden o n core Se co nd Amendment rig hts in furtherance of an important g overnment interest, the federal courts have u niversally upheld it. We do the same here. I n d oing so, we need not—and d o not— de ci d e w hether the fee implicates the Second Amendment,

nor do we decide whether F irst Amendment fee jurisprudence should be a

pplied in analy

z ing whether the provision passes t h e intermediate scrutiny test. B ecause, even a ssuming t h e Second Amendment applies in this contex t, California’s use of the D ROS fee to f

u nd the APPS prog ram survives intermediate scrutiny

under either test, we affirm the district court’s g rant of summary judg ment in favor of the State.

AF F IRMED.

f irearm p o ssessio n l a w s a s t h ey ap p ly to th ose w h o leg ally acq u i red a f irearm b y p ay in g th e f

ee.