FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MATTHEW JONES; THOMAS FURRH;

PWGG, L.P., DBA Poway Weapons 

and Gear and PWG Range; NORTH 

COUNTY SHOOTING CENTER, INC.;

BEEBE FAMILY ARMS AND 

MUNITIONS LLC, DBA BFAM and 

Beebe Family Arms and Munitions; 

FIREARMS POLICY COALITION, INC.;

FIREARMS POLICY FOUNDATION; THE 

CALGUNS FOUNDATION; SECOND 

AMENDMENT FOUNDATION; KYLE 

YAMAMOTO,

Plaintiffs-Appellants,

v.

ROB BONTA,

* in his official capacity 

as Attorney General of the State of 

California; MARTIN HORAN, in his 

official capacity as Director of the 

Department of Justice Bureau of 

Firearms; DOES, 1–20,

Defendants-Appellees.

No. 20-56174

D.C. No.

3:19-cv-01226-

L-AHG

OPINION

* Rob Bonta has been substituted for his predecessor, Xavier 

Becerra, as California Attorney General under Fed. R. App. P. 43(c)(2).
2 JONES V. BONTA

Appeal from the United States District Court

for the Southern District of California

M. James Lorenz, District Judge, Presiding

Argued and Submitted May 12, 2021

Pasadena, California

Filed May 11, 2022

Before: Ryan D. Nelson and Kenneth K. Lee, Circuit 

Judges, and Sidney H. Stein,** District Judge.

Opinion by Judge R. Nelson;

Concurrence by Judge Lee;

Dissent by Judge Stein

** The Honorable Sidney H. Stein, United States District Judge for 

the Southern District of New York, sitting by designation.
JONES V. BONTA 3

SUMMARY***

Civil Rights

The panel affirmed in part and reversed in part the 

district court’s denial of plaintiffs’ motion for a preliminary 

injunction seeking to enjoin, under the Second Amendment, 

California’s bans on the sale of long guns and semiautomatic 

centerfire rifles to anyone under the age of 21. 

The panel held that the district court did not abuse its 

discretion in declining to enjoin the requirement that young 

adults obtain a hunting license to purchase a long gun. But 

the district court erred in not enjoining an almost total ban 

on semiautomatic centerfire rifles. 

First, the historical record showed that the Second 

Amendment protects the right of young adults to keep and 

bear arms, which includes the right to purchase them. 

Therefore, both California laws burdened conduct within the 

scope of the Second Amendment. 

Second, the district court properly applied intermediate 

scrutiny to the long gun hunting license regulation, which 

permits a young adult to buy a long gun if he gets a hunting 

license. This requirement does not prevent young adults 

from having any firearms or from using them in any 

particular way, and therefore did not impose a significant 

burden on the Second Amendment right to keep and bear 

arms. The district court did not abuse its discretion in 

finding that the regulation would survive intermediate 

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

has been prepared by court staff for the convenience of the reader.
4 JONES V. BONTA

scrutiny, as defendants would likely be able to show that 

California’s long gun regulation was a reasonable fit for the 

stated objectives of increasing public safety through sensible 

firearm control. 

Third, the district court erred by applying intermediate 

scrutiny, rather than strict scrutiny, to the semiautomatic 

centerfire rifle ban. Strict scrutiny applied because the law 

on its face banned almost all young adults from having 

semiautomatic rifles. The main difference between this ban 

and the long gun regulation was the exceptions. The long 

gun regulation has a readily available exception, at least on 

its face—young adults can get hunting licenses. The 

semiautomatic rifle ban has no such exception: the only 

young adults who can buy semiautomatic rifles are some law 

enforcement officers and active-duty military 

servicemembers. The panel held that California’s ban was a 

severe burden on the core Second Amendment right of selfdefense in the home. Even applying intermediate scrutiny, 

the ban, prohibiting commerce in semiautomatic rifles for all 

young adults except those in the police or military, regulated 

more conduct than was necessary to achieve its goal and 

therefore failed the reasonable fit test. 

Finally, the panel held that the district court also abused 

its discretion in finding that there was no irreparable harm 

and that the public interest favored declining to issue an 

injunction.

Concurring, Judge Lee joined the opinion in full but 

wrote separately to highlight how California’s legal position 

has no logical stopping point and would ultimately erode 

fundamental rights enumerated in the Constitution. If 

California can deny the Second Amendment right to young 

adults based on their group’s disproportionate involvement 
JONES V. BONTA 5

in violent crimes, then the government can deny that right—

as well as other rights—to other groups. Judge Lee wrote 

that “we cannot jettison our constitutional rights, even if the 

goal behind a law is laudable.”

Dissenting in part, Judge Stein stated that while the 

majority was correct to apply intermediate scrutiny to the 

long gun regulation to affirm the district court’s denial of the 

preliminary injunction, it erred in applying strict scrutiny to 

and reversing the district court with respect to the 

semiautomatic centerfire rifle regulation. On that basis, 

Judge Stein concurred with the majority’s holding and 

reasoning with respect to the long gun regulation and 

dissented from its holding and reasoning with respect to the 

semiautomatic rifle regulation. Judge Stein stated that by 

neglecting consideration of either the disproportionate 

perpetration of violent crime by, or the relatively immature 

and variable cognitive development among, adults under age 

21, the majority opinion failed to conduct a legal analysis 

that comported with the corpus of precedent within this 

Circuit and elsewhere. Not only in Judge Stein’s view was 

it error for the majority to apply strict scrutiny to the 

semiautomatic rifle regulation, but its alternative holding 

that the regulation failed under intermediate scrutiny 

suffered from a faulty assessment of whether the regulation 

was a “reasonable fit” for California’s public policy 

objectives.
6 JONES V. BONTA

COUNSEL

Haley N. Proctor (argued), David H. Thompson, Peter A. 

Patterson, and John D. Ohlendorf, Cooper and Kirk PLLC, 

Washington, D.C.; John W. Dillon, Dillon Law Group APC, 

Carlsbad, California; for Plaintiffs-Appellants.

Jennifer E. Rosenberg (argued) and John D. Echeverria, 

Deputy Attorneys General; Mark R. Beckington, 

Supervising Deputy Attorney General; Thomas S. Patterson, 

Senior Assistant Attorney General; Rob Bonta, Attorney 

General; Office of the Attorney General, Los Angeles, 

California; Defendants-Appellees.

Sarah A. Hunger, Deputy Solicitor General; Jane Elinor 

Notz, Solicitor General; Kwame Raoul, Attorney General; 

Office of the Attorney General, Chicago, Illinois; William 

Tong, Attorney General, Hartford, Connecticut; Kathleen 

Jennings, Attorney General, Wilmington, Delaware; Karl A. 

Racine, Attorney General, Washington, D.C.; Clare E. 

Connors, Attorney General, Honolulu, Hawaii; Brian E. 

Frosh, Attorney General, Baltimore, Maryland; Maura 

Healey, Attorney General, Boston, Massachusetts; Dana 

Nessel, Attorney General, Lansing, Michigan; Keith Ellison, 

Attorney General, St. Paul, Minnesota; Gurbir S. Grewal, 

Attorney General, Trenton, New Jersey; Hector Balderas, 

Attorney General, Santa Fe, New Mexico; Letitia James, 

Attorney General, Albany, New York; Ellen F. Rosenblum, 

Attorney General, Salem, Oregon; Josh Shapiro, Attorney 

General, Harrisburg, Pennsylvania; Peter F. Neronha, 

Attorney General, Providence, Rhode Island; Thomas J. 

Donovan Jr., Attorney General, Montpelier, Vermont; Mark 

R. Herring, Attorney General, Richmond, Virginia; Robert 

W. Ferguson, Attorney General, Olympia, Washington; for 

Amici Curiae Illinois, Connecticut, Delaware, District of 
JONES V. BONTA 7

Columbia, Hawaii, Maryland, Massachusetts, Michigan, 

Minnesota, New Jersey, New Mexico, New York, Oregon, 

Pennsylvania, Rhode Island, Vermont, Virginia, and 

Washington.

Hannah Shearer, Giffords Law Center to Prevent Gun 

Violence, San Francisco, California; J. Adam Skaggs, 

Giffords Law Center to Prevent Gun Violence, New York, 

New York; Robert A. Sacks and Leonid Traps, Sullivan & 

Cromwell LLP, New York, New York; Angela N. Ellis, 

Jackson Froliklong, Rachel H. VanGelder, and Madeline B. 

Jenks, Sullivan & Cromwell LLP, Washington, D.C.; for 

Amici Curiae Giffords Law Center to Prevent Gun Violence, 

Brady, and American Federation of Teachers.

Glenn Rothner, Rothner Segall & Greenstone, Pasadena, 

California, for Amicus Curiae California Federation of 

Teachers.

Lisa Kobialka, Kramer Levin Naftalis & Frankel LLP, 

Menlo Park, California; Darren A. LaVerne, Karen S. 

Kennedy, and Daniel M. Ketani, Kramer Levin Naftalis & 

Frankel LLP, New York, New York; Janet Carter, William 

J. Taylor Jr., and Lisa M. Ebersole, Everytown Law, New 

York, New York; for Amicus Curiae Everytown for Gun 

Safety.

Jason Walta, National Education Association, Washington, 

D.C., for Amicus Curiae National Education Association.

Neal Goldfarb, Washington, D.C., pro se Amicus Curiae.
8 JONES V. BONTA

OPINION

R. NELSON, Circuit Judge:

America would not exist without the heroism of the 

young adults who fought and died in our revolutionary army. 

Today we reaffirm that our Constitution still protects the 

right that enabled their sacrifice: the right of young adults to 

keep and bear arms.

California has restricted the sale of most firearms to 

anyone under 21. Plaintiffs challenged the bans on long 

guns and semiautomatic centerfire rifles under the Second 

Amendment. The district court declined to issue a 

preliminary injunction.

We hold that the district court did not abuse its discretion 

in declining to enjoin the requirement that young adults 

obtain a hunting license to purchase a long gun. But the 

district court erred in not enjoining an almost total ban on 

semiautomatic centerfire rifles. First, the Second 

Amendment protects the right of young adults to keep and 

bear arms, which includes the right to purchase them. The 

district court reasoned otherwise and held that the laws did 

not burden Second Amendment rights at all: that was legal 

error. Second, the district court properly applied 

intermediate scrutiny to the long gun hunting license 

regulation and did not abuse its discretion in finding it likely 

to survive. But third, the district court erred by applying 

intermediate scrutiny, rather than strict scrutiny, to the 

semiautomatic centerfire rifle ban. And even under 

intermediate scrutiny, this ban likely violates the Second 

Amendment because it fails the “reasonable fit” test. 

Finally, the district court also abused its discretion in finding 

that Plaintiffs would not likely be irreparably harmed. We 

thus affirm the district court’s denial of an injunction as to 
JONES V. BONTA 9

the long gun regulation, reverse its denial of an injunction as 

to the semiautomatic centerfire rifle ban, and remand for 

further proceedings consistent with this opinion.

I

A

California regulates the acquisition, possession, and 

ownership of firearms with a multifaceted scheme. Peruta 

v. County of San Diego, 824 F.3d 919, 925 (9th Cir. 2016) 

(en banc). To start, some general requirements apply to 

everyone, not just young adults.1 First, except for some 

intrafamily transfers and loans,2 the state requires that all 

transfers of firearms happen at a licensed firearms dealer. 

Cal. Penal Code §§ 27545, 28050. And second, the 

purchaser must have a valid firearm safety certificate 

(“FSC”). Id. §§ 31615, 27540(e). Exempt from the FSC 

requirement are people with hunting licenses, active and 

reserve peace officers, federal officers or law enforcement

agents, and active or honorably retired members of the 

armed forces. Id. § 31700(a)–(c).

1 We use “young adults” to refer to people who are 18 years old or 

older but not yet 21 years old.

2 Loans and intrafamily transfers are severely restrictive. First, 

intrafamily transfers are only allowed from parents or grandparents. Cal. 

Penal Code §§ 27875, 16720. But strawman purchases are not allowed. 

Id. § 27515. Then limited loans are allowed: (1) loans for up to thirty 

days from a larger set of family members (spouses, domestic partners, 

parents, children, siblings, or grandparents), id. § 27880; (2) loans for up 

to three days, if the firearm is used in the presence of the loaner, id.

§ 27885; (3) loans for any amount of time, if the firearm stays only at the 

loaner’s residence, id. § 27881; and (4) loans to licensed hunters for the 

hunting season, id. § 27950.
10 JONES V. BONTA

California also regulates young adults’ commerce in 

firearms. Specifically, after first banning only the sale of 

handguns, California then prohibited the sale to young adults 

of almost any kind of firearm. The only exception was for 

sales of long guns to young adults who (1) have a state 

hunting license, (2) are peace officers, active federal 

officers, or active federal law enforcement agents and are 

allowed to carry firearms for their work, or (3) are active or 

honorably discharged members of the military. 2017 

California Senate Bill No. 1100, California 2017–2018 

Regular Session.3

Several young adults, gun shops, and advocacy groups 

sued, asking the district court to enjoin the long gun 

regulation under the Second and Fourteenth Amendments. 

Then, while the suit was pending, California again amended 

the law, banning sales of semiautomatic centerfire rifles4 to 

young adults, and excepting only law enforcement officers 

and active-duty military, but not hunting license holders. In 

response, Plaintiffs withdrew their motion for a preliminary 

injunction, amended their complaint to challenge the new 

ban, and again sought a preliminary injunction, now of both 

the long gun regulation and the semiautomatic rifle ban.

3 Transfers of handguns to young adults are also banned, except for 

antique handguns and intrafamily transfers. Cal. Penal Code § 27505(a).

4 A rifle is a kind of long gun. A semiautomatic rifle fires a single 

bullet each time the trigger is pulled and does not require the user to 

manually cycle between shots. And a centerfire rifle uses centerfire 

ammunition, in which the primer that ignites the powder is in the center 

of the bullet, rather than at the rim. Most rifles are centerfire rifles, and 

thus for ease of reference, we refer just to semiautomatic rifles.
JONES V. BONTA 11

B

The district court declined to preliminarily enjoin the 

laws, holding that Plaintiffs had not shown that they were 

likely to succeed on the merits, both because the laws did not 

burden Second Amendment rights and would likely survive 

intermediate scrutiny. The district court also held that 

Plaintiffs had not shown irreparable harm and that the 

balance of interests did not favor enjoining the laws.

First, the district court observed that other courts had 

held that similar laws do not burden Second Amendment 

rights at all. Jones v. Becerra, 498 F. Supp. 3d 1317, 1326–

27 (S.D. Cal. 2020).5 The district court noted that these 

courts found that similar laws were “longstanding, do not 

burden the Second Amendment, and are therefore 

presumptively constitutional.” Id. at 1327. The district court 

then reasoned that “[i]ndividuals under the age of 21 were 

considered minors or ‘infants’ for most of our country’s 

history without the rights afforded adults” and therefore they 

are among those “believed unfit of responsible firearm 

possession and use.” Id. at 1327. It did address the tradition 

of militia members who were under 21 years old, but 

reasoned this tradition actually supported the 

constitutionality of the laws. Id. In the district court’s view, 

“[m]ilitia members were required to possess their own 

5 The district court relied on National Rifle Association of America, 

Inc. v. Bureau of Alcohol and Tobacco, Firearms, and Explosives, 700 

F.3d 185, 196 (5th Cir. 2012) (“NRA I”); Hirschfeld v. Bureau of 

Alcohol, Tobacco, Firearms and Explosives, 417 F. Supp. 3d 747, 755 

(W.D. Va. 2019); and Mitchell v. Atkins, 483 F. Supp. 3d 985 (W.D. 

Wash. 2020). The district court’s order in Hirschfeld was reversed by a 

divided panel, 5 F.4th 407 (4th Cir. 2021), but then the plaintiffs turned 

18, the court found the case moot, and vacated the opinion, 14 F.4th 322 

(4th Cir. 2021).
12 JONES V. BONTA

firearms if they complied with accountability and 

maintenance regulations” and thus the “strict rules 

surrounding militia duty” show that the “right to firearm 

possession came with obligations to ensure public safety.” 

Id.

Because of other courts’ holdings, the longstanding 

history of similar regulations, and its militia analysis, the 

district court reasoned that California’s laws “do[] not 

burden the Second Amendment.” Id. The district court thus 

held that Plaintiffs were not likely to succeed on the merits.

Second, because it found no burden on Second 

Amendment rights, the district court did not need to apply 

any tier of scrutiny. Still, “in an abundance of caution,” the 

district court also determined that intermediate scrutiny 

applied and that the laws likely survived it. Id.

In determining whether to apply strict or intermediate 

scrutiny, the district court reasoned that the laws neither 

implicated the core Second Amendment right nor severely 

burdened that right. Id. at 1328 (citing Pena v. Lindley, 898 

F.3d 969, 977 (9th Cir. 2018)). The district court bolstered 

its conclusion by noting that young adults could “receive 

otherwise prohibited firearms via transfer from immediate 

family.” Id. Because the laws were not, in the district 

court’s view, complete bans, it held that only intermediate 

scrutiny would be required. Id.

The district court then held that the laws likely would 

satisfy intermediate scrutiny. The court noted first that 

California’s goal of improving public safety was a 

significant objective. Id. The court then held that the laws 

“provide[] a reasonable fit” to those goals because “it 

remains commonly understood that Young Adults may 

require additional safeguards to ensure proper training and 
JONES V. BONTA 13

maintenance of firearms.” Id. at 1330. Thus, Plaintiffs still 

were not likely to succeed on the merits, even under 

intermediate scrutiny.

Third, the district court held that Plaintiffs failed to show 

irreparable harm. Id. at 1330–32. The district court 

observed that, after filing their amended complaint, 

Plaintiffs waited two months before moving for a 

preliminary injunction. It reasoned that this delay 

undermined finding irreparable harm. Id. at 1331. “More 

importantly,” young adults could still get firearms, either 

under an exception, through a transfer from family, or by 

using them at shooting ranges. Id.

Finally, the district court also held that the balance of 

interests weighed against enjoining the laws, reasoning that 

“[t]he potential harm of enjoining a duly-enacted law 

designed to protect public safety outweighs Young Adults’ 

inability to secure the firearm of their choice without proper 

training.” Id. at 1332.

II

A

The district court had jurisdiction under 28 U.S.C. 

§ 1331. We have jurisdiction to review the district court’s 

interlocutory order declining to issue an injunction under 

28 U.S.C. § 1292(a)(1).

Because we “have an independent obligation to ensure 

that [we] do not exceed the scope of [our] jurisdiction,” 

Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428 

(2011), we must ensure that the case is not moot, even if the 

parties do not dispute it.
14 JONES V. BONTA

A case is moot when there is “no actual or live 

controversy.” Bishop Paiute Tribe v. Inyo County, 863 F.3d 

1144, 1155 (9th Cir. 2017) (citing Foster v. Carson, 

347 F.3d 742, 745 (9th Cir. 2003)). “If there is no longer a 

possibility that an appellant can obtain relief for his claim, 

that claim is moot and must be dismissed for lack of 

jurisdiction.” Id. (internal quotation marks omitted).

Defendants argue that the individual plaintiffs’ claims 

are moot because they have turned 21, but they concede that 

we have jurisdiction anyway. We agree that we have 

jurisdiction. We need not reach whether the individual 

plaintiffs’ claims are moot because the organizational 

plaintiffs’ claims are not. Cf. Laub v. U.S. Dep’t of Interior, 

342 F.3d 1080, 1086 (9th Cir. 2003) (where “one plaintiff 

ha[s] standing to bring the suit, the court need not consider 

the standing of the other plaintiffs”). The advocacy groups 

sued on behalf of their young adult members, and some of 

those members are still under 21. Similarly, the firearm 

dealer plaintiffs sued because they have had to forego selling 

firearms to young adults and offering firearm classes for 

them. The case is not moot as to them either because they 

still cannot sell firearms to young adults or admit them to 

their classes.

B

Although we review the denial “of a preliminary

injunction for an abuse of discretion” and “factual findings 

for clear error,” we also review “the underlying legal 

conclusions de novo.” Washington v. U.S. Dep’t of State, 

996 F.3d 552, 560 (9th Cir. 2021). If “the district court relied 

on an erroneous legal premise,” then it abused its discretion. 

Fyock v. Sunnyvale, 779 F.3d 991, 995 (9th Cir. 2015).
JONES V. BONTA 15

The district court’s choice of a tier of scrutiny is a legal 

question that we review de novo. See Joelner v. Vill. of 

Wash. Park, Ill., 508 F.3d 427, 431 (7th Cir. 2007), as 

amended on denial of reh’g (Apr. 3, 2008). Its application 

of that tier of scrutiny is reviewed for abuse of discretion. 

Fyock, 779 F.3d at 998.

At the preliminary injunction stage, our “review of the 

district court’s findings” is “restricted to the limited record 

available to the district court when it granted or denied the 

motion.” Sports Form, Inc. v. United Press Int’l, Inc., 

686 F.2d 750, 753 (9th Cir. 1982). Ultimately, because 

denying a preliminary injunction lies within a district court’s 

discretion, we may reverse only when it abused its discretion 

by relying on an erroneous legal premise or clearly 

erroneous finding of fact. See, e.g., Calvary Chapel Dayton 

Valley v. Sisolak, 982 F.3d 1228, 1231 (9th Cir. 2020).

C

“A plaintiff seeking a preliminary injunction must 

establish that he is likely to succeed on the merits, that he is 

likely to suffer irreparable harm in the absence of 

preliminary relief, that the balance of equities tips in his 

favor, and that an injunction is in the public interest.” Winter 

v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). When 

the government is a party, the balance of equities factor and 

the public interest factor merge. Drakes Bay Oyster Co. v. 

Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014). “Under our 

‘sliding scale’ approach, a stronger showing of one element 

may offset a weaker showing of another, as long as plaintiffs 

‘establish that irreparable harm is likely.’” Doe v. Kelly, 

878 F.3d 710, 719 (9th Cir. 2017) (quoting All. for the Wild 

Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011)).
16 JONES V. BONTA

III

“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. The Second 

Amendment “protects a personal right to keep and bear arms 

for lawful purposes, most notably for self-defense within the 

home.” McDonald v. City of Chicago, 561 U.S. 742, 780 

(2010). This right is “applicable to the States” through the 

Due Process Clause of the Fourteenth Amendment. Id. at 

750.

The “Second Amendment right is exercised individually 

and belongs to all Americans.” District of Columbia v. 

Heller, 554 U.S. 570, 581 (2008). The “people” protected 

by the Second Amendment “refers to a class of persons who 

are part of a national community.” Id. (quoting United States 

v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990)).

On the merits, for challenges to firearm laws under the 

Second and Fourteenth Amendments, we apply a “two-step 

framework.” Young v. Hawaii, 992 F.3d 765, 783 (9th Cir. 

2021) (en banc). First, we ask “whether the challenged law 

burdens conduct protected by the Second Amendment.” 

Fyock, 779 F.3d at 996 (internal quotations omitted). In this 

step, we “explore the amendment’s reach based on a 

historical understanding of the scope of the Second 

Amendment right.” Mai v. United States, 952 F.3d 1106, 

1114 (9th Cir. 2020) (quoting United States v. Torres, 

911 F.3d 1253, 1258 (9th Cir. 2019)). As we conduct this 

historical analysis, we must remain “well aware that we are 

jurists and not historians.” Young, 992 F.3d at 785.6 Still, if 

6 As part of this historical analysis, one tool to consider is corpus 

linguistics. Corpus linguistics is “an analysis of how particular 
JONES V. BONTA 17

the challenged law regulates conduct historically outside the 

scope of the Second Amendment, then it does not burden 

Second Amendment rights. Mai, 952 F.3d at 1114. But if 

the challenged law “falls within the historical scope of the 

Second Amendment, we must then proceed to the second 

step of the Second Amendment inquiry to determine the 

appropriate level of scrutiny.” Jackson v. City & County of 

San Francisco, 746 F.3d 953, 960 (9th Cir. 2014).

In our historical analysis, the Framers’ understanding of 

the Second Amendment at and around the time of ratification 

has special significance. Laws from that time are 

particularly important because they are “contemporaneous 

legislative exposition[s] of the Constitution” that took place 

“when the founders of our government and framers of our 

Constitution were actively participating in public affairs.” 

Myers v. United States, 272 U.S. 52, 175 (1926). If they 

were also “acquiesced in for a long term of years,” these 

legislative expositions “fix[] the construction” that we must 

give to the Constitution’s parameters. Id. Because the 

militias originated in the states, see Heller, 554 U.S. at 596, 

combinations of words are used in a vast database of English prose.” 

Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1174 (Alito, J., concurring) 

(citing Lee & Mouritsen, Judging Ordinary Meaning, 127 Yale L. J. 788 

(2018)). It “draws on the common knowledge of the lay person by 

showing us the ordinary uses of words in our common language.” 

Wilson v. Safelite Grp., Inc., 930 F.3d 429, 439 (6th Cir. 2019) (Thapar, 

J., concurring in part and concurring in the judgment). Corpus linguistics 

“is a powerful tool for discerning how the public would have understood 

a statute’s text at the time it was enacted,” and “[c]ourts should consider 

adding this tool to their belts.” Id. at 439–40.

We asked the parties to file supplemental briefing addressing in part 

the applicability of corpus linguistics to this case. We thank the parties 

for their hard work. Because neither of them asks us to apply corpus 

linguistics here, we decline to consider it further.
18 JONES V. BONTA

we also consider colonial and state laws. Since the Second 

Amendment was incorporated against the states through the 

Fourteenth Amendment, our historical analysis also must 

consider how the right to keep and bear arms was understood 

in 1868, when that amendment was ratified. See McDonald, 

561 U.S. 742, 770–78 (analyzing Reconstruction-era 

history).

After the historical analysis, if we conclude that the law 

at issue burdens Second Amendment rights, then we proceed 

to the second step. In this step, we determine which level of 

scrutiny to apply and must decide both “how close [each] 

law comes to the core of the Second Amendment right” and 

“the severity of [each] law’s burden on that right.” Mai, 

952 F.3d at 1115. “Strict scrutiny applies only to laws that 

both implicate a core Second Amendment right and place a 

substantial burden on that right.” Id. (citing Torres, 911 F.3d 

at 1262). And “[i]n weighing the severity of the burden, we 

are guided by a longstanding distinction between laws that 

regulate the manner in which individuals may exercise their 

Second Amendment right, and laws that amount to a total 

prohibition of the right.” Pena, 898 F.3d at 977 (citing 

United States v. Chovan, 735 F.3d 1127, 1138 (9th Cir. 

2013)). Laws that regulate how individuals can exercise the 

right are less severe; laws that amount to a total prohibition 

of the right are more severe.

To withstand intermediate scrutiny, first, “the 

government’s stated objective [must] be significant, 

substantial, or important,” and second, there must be “a 

reasonable fit between the challenged regulation and the 

asserted objective.” Chovan, 735 F.3d at 1139. But to satisfy 

strict scrutiny, the law must be “justified by a compelling 

government interest and [be] narrowly drawn to serve that 
JONES V. BONTA 19

interest.” Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 799 

(2011).

We analyze the laws against this legal backdrop. First, 

because the Second Amendment historically protected the 

right of young adults to possess firearms, the district court 

abused its discretion in finding no burden on Second 

Amendment rights. As to the long gun regulation, the 

district court properly applied intermediate scrutiny, and did 

not abuse its discretion in finding the law likely to survive. 

But semiautomatic rifles are nearly totally banned. Thus, the 

district court erred in applying intermediate scrutiny, rather 

than strict scrutiny. And even under intermediate scrutiny, 

the district court erred in finding the law likely to survive. 

Finally, the district court also abused its discretion in finding 

that there was no irreparable harm and that the public interest 

favored declining to issue an injunction.

IV

A

Before engaging with the historical record, we first 

establish the parameters of our analysis. California regulates 

young adults’ commerce in firearms, not their possession. 

And we have avoided defining “the contours of the 

commercial sales category because [we have] assumed the 

Second Amendment applied and upheld the restriction under 

the appropriate level of constitutional scrutiny.” Pena, 

898 F.3d at 976 (collecting cases). Still, even though this is 

a commercial regulation, the district court’s historical 

analysis focused not on the history of commercial 

regulations specifically but on the history of young adults’ 

right to keep and bear arms generally. See Jones, 498 F. 

Supp. 3d at 1325–29. The district court was asking the right 

question.
20 JONES V. BONTA

“Commerce in firearms is a necessary prerequisite to 

keeping and possessing arms for self-defense.” Teixeira v. 

County of Alameda, 873 F.3d 670, 682 (9th Cir. 2017). We 

have assumed without deciding that the “right to possess a 

firearm includes the right to purchase one.” Bauer v. 

Becerra, 858 F.3d 1216, 1222 (9th Cir. 2017). And we have 

already applied a similar concept to other facets of the 

Second Amendment. For example, “[t]he Second 

Amendment protects ‘arms,’ ‘weapons,’ and ‘firearms’; it 

does not explicitly protect ammunition.” Jackson, 746 F.3d 

at 967. Still, because “without bullets, the right to bear arms 

would be meaningless,” we held that “the right to possess 

firearms for protection implies a corresponding right” to 

obtain the bullets necessary to use them. Id. (citing Ezell v. 

City of Chicago, 651 F.3d 684, 704 (7th Cir. 2011)).

Similarly, without the right to obtain arms, the right to 

keep and bear arms would be meaningless. Cf. Jackson, 

746 F.3d at 967 (right to obtain bullets). “There comes a 

point . . . at which the regulation of action intimately and 

unavoidably connected with [a right] is a regulation of [the 

right] itself.” Luis v. United States, 136 S. Ct. 1083, 1097 

(Thomas, J., concurring in the judgment) (quoting Hill v. 

Colorado, 530 U.S. 703, 745 (2000) (Scalia, J., 

dissenting)).7

 For this reason, the right to keep and bear arms 

includes the right to purchase them. And thus laws that 

7 Because the Second Amendment is not a “second-class right,” 

McDonald, 561 U.S. at 780, we must treat it the same as other rights. In 

the context of a right to privacy, “a total prohibition against sale of 

contraceptives . . . would intrude upon [the right to privacy] as harshly 

as a direct ban.” Carey v. Population Servs., Int’l, 431 U.S. 678, 688 

(1977). “Indeed, in practice, a prohibition against all sales, since more 

easily and less offensively enforced, might have an even more 

devastating effect upon” the exercise of constitutional rights. Id.
JONES V. BONTA 21

burden the ability to purchase arms burden Second 

Amendment rights.

B

Finally, before we dive into the history, we pause to clear 

up two last points. First, because the long gun regulation and 

the semiautomatic rifle ban regulate different categories of 

guns and have different exceptions, we analyze them 

separately. And second, the Second Amendment does not 

protect the right to carry “dangerous and unusual weapons.” 

Heller, 554 U.S. at 627. But that doesn’t mean that weapons 

can be banned just because they’re dangerous. Rather, 

“dangerous and unusual weapons” is a kind of historical 

term of art: Heller contrasted those arms with weapons “in 

common use at the time.” Id. Thus “the relative 

dangerousness of a weapon is irrelevant when the weapon 

belongs to a class of arms commonly used for lawful 

purposes.” Caetano v. Massachusetts, 577 U.S. 411, 418 

(2016) (Alito, J., concurring). Here, the district court held 

that “[b]oth long-guns and semi-automatic centerfire rifles 

are commonly used by law abiding citizens for lawful 

purposes such as hunting, target practice, and self-defense,” 

and thus that they are not “dangerous and unusual weapons” 

under Heller, 554 U.S. at 627. Jones, 498 F. Supp. 3d 

at 1325. Similarly, semiautomatic weapons “traditionally 

have been widely accepted as lawful possessions.” Staples 

v. United States, 511 U.S. 600, 612 (1994). We agree: long 

guns and semiautomatic rifles are not dangerous and unusual 

weapons.

Having cleared these last preliminary hurdles, the 

question now is, “based on a historical understanding of the 

scope of the Second Amendment right,” whether the right of 

young adults to bear arms is “conduct [that is] protected by 
22 JONES V. BONTA

the Second Amendment.” Mai, 952 F.3d at 1114 (internal 

citation omitted).

C

Our analysis of the historical record reveals several 

points which inform our exploration of the amendment’s 

reach. First, the tradition of young adults keeping and 

bearing arms is deep-rooted in English law and custom. 

Going back many centuries, able-bodied English men at 

least fifteen years old were compelled to possess personal

arms and had to take part in both the militia and other 

institutions that required them to keep and bear personal 

arms. Second, the American colonists brought that tradition 

across the Atlantic: the colonial militias almost always 

included all men 18 and older, and other institutions 

involving keeping and bearing arms made it to our shores, 

too. Third, at the time of the founding, all states required 

young adults to serve in the militia, and all states required 

young adults to acquire and possess their own firearms. Just 

after the founding, Congress established a federal militia, 

which included young adults, and required them to acquire 

and possess their own weapons. Fourth, both at the founding 

and later, different states had different ages of majority, and 

the age of majority also varied depending on the conduct at 

issue. And finally, turning to the Reconstruction era, some 

states passed laws that regulated minors’ access to firearms, 

but most of them only regulated handguns, and only a few 

banned all sales of firearms to minors. We explore each of 

these points in turn.

1

The tradition of young adults keeping and bearing arms 

is deep-rooted in English law and custom. As far back as 

medieval times, able-bodied men aged fifteen and older were 
JONES V. BONTA 23

compelled to possess personal arms and had a duty, when 

asked, to use those personal arms to maintain the king’s 

peace and protect their communities and property.8 “[T]he

militia from its obscure origin in Saxon times has been 

composed of all subjects and citizens capable of bearing 

arms, regardless of age or parental authority.”9

And the militia was not the only institution imposing an 

obligation to acquire and possess arms: “[u]nder English law 

originating long before the Norman Conquest of 1066, all 

able-bodied men were obliged to join in the hutesium et 

clamor (hue and cry) to pursue fleeing criminals.”10 More 

generally, sheriffs, coroners, and magistrates could 

“summon all able-bodied males to assist in keeping the 

peace,”11 and the traditional minimum age for these lawenforcement duties was typically 15 or 16 years old.12 For 

example, at common law, the sheriff could command 

citizens—already armed—to help suppress riots, arrest 

criminals, and otherwise enforce civil processes.13

8 See David B. Kopel, The Posse Comitatus and the Office of Sheriff: 

Armed Citizens Summoned to the Aid of Law Enforcement, 104 J. Crim. 

L. & Criminology 761, 788 (2014).

9 S.T. Ansell, Legal and Historical Aspects of the Militia, 26 Yale 

L.J. 471, 473 (1917).

10 Kopel, supra n.8, at 771–72.

11 See David B. Kopel & Joseph G.S. Greenlee, The Second 

Amendment Rights of Young Adults, 43 S. Ill. U. L. J. 495, 535 (2019).

12 Kopel, supra n.6, at 788, 790.

13 Id. at 792.
24 JONES V. BONTA

2

This deep-rooted tradition was brought across the 

Atlantic by the American colonists. Heller confirmed that 

the “militia” in colonial America consisted of “a subset of 

‘the people’—those who were male, able bodied, and within 

a certain age range.” 554 U.S. at 580. Before ratification, 

when militias were solely defined by state law, most colonies 

and states set the age for militia enlistment at 16. See 

Appendix 1. Every colony passed, at some point, laws 

identifying 18-year-olds as persons required to possess arms. 

Id. Throughout the colonial period, the minimum age 

fluctuated both below and above 18, and some colonies 

passed laws temporarily increasing the minimum age 

requirements for militia service to not include 18- to 20-

year-olds. Id.

Militia members had to show up for militia duty with 

their own arms.14 When militia members were “called for 

service th[ey] . . . were expected to appear bearing arms 

supplied by themselves and of the kind in common use at the 

time.” United States v. Miller, 307 U.S. 174, 179 (1939). 

Colonial governments even supplied arms to citizens too 

poor to purchase them, requiring them, for example, to pay 

back the government or work off their debt.15

Militia membership also included some of what we 

might now call regulation: “members of the militia were 

required to meet regularly for weapons inspection and 

registration.” Jones, 498 F. Supp. 3d at 1327 (citing Saul 

14 See Joyce Lee Malcolm, To Keep and Bear Arms 139 (1994).

15 See Clayton E. Cramer, Colonial Firearm Regulation, 16 J. 

Firearms & Pub. Pol’y 3, 24 (2004).
JONES V. BONTA 25

Cornell & Nathan DeDino, A Well Regulated Right: The 

Early America Origins of Gun Control, 73 Fordham L. Rev. 

487, 509–11 (2004)).

Along with the militia, the colonists also brought over 

the practice of posse comitatus, which again required 

citizens to have their own arms.16 “Prior to the advent of 

centralized police forces,” posse comitatus allowed “sheriffs 

and others [to] compel[] citizens to serve in the name of the 

state to execute arrests, level public nuisances, and keep the 

peace, upon pain of fine and imprisonment.”17 And in fact, 

the colonists didn’t just continue the practice: posse 

comitatus was “a pillar of local self-governance” and 

“central to the broader project of protecting the public 

good.”18 Colonial governments even punished citizens who 

would not join the posse.19

3

The Second Amendment was ratified just a few months 

before Congress passed the Militia Act of 1792. The Militia 

Act required that young adults serve in the militia and 

acquire and possess their own weapons. The Act “purported 

to establish ‘an Uniform Militia throughout the United 

States.’” Perpich v. Dep’t of Def., 496 U.S. 334, 341 (1990) 

(internal citation omitted). The Act stated: “each and every 

16 See Gautham Rao, The Federal Posse Comitatus Doctrine: 

Slavery, Compulsion, and Statecraft in Mid-Nineteenth-Century 

America, 26 Law & Hist. Rev. 1, 10 (2008) (internal citation omitted).

17 See id. at 2.

18 See id. at 10.

19 See id.
26 JONES V. BONTA

free able-bodied white male citizen of the respective states, 

resident therein, who is or shall be of the age of eighteen 

years, and under the age of forty-five years (except as is 

herein after excepted) shall severally and respectively be 

enrolled in the militia.” Act of May 8, 1792, 1 Stat. 271. 

The Act also required each militia member to “provide 

himself with a good musket or firelock . . . or with a good 

rifle.” Id. The Militia Act thus “command[ed] that every 

able-bodied male citizen between the ages of 18 and 45 be 

enrolled [in the militia] and equip himself with appropriate 

weaponry.” Perpich, 496 U.S. at 341.

Thus, “[a]t the time of the Second Amendment’s 

passage, or shortly thereafter, the minimum age for militia 

service in every state became eighteen.” Nat’l Rifle Ass’n of 

Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms & 

Explosives, 714 F.3d 334, 340–44 (5th Cir. 2013) (Jones, J., 

dissenting from denial of rehearing en banc) (“NRA II”).20 

Several states adopted the exact language from the Federal 

Militia Act—obligating male persons 18 years old or older 

to acquire and provide their own firearms. See Appendix 2. 

20 Of course, the Fifth Circuit panel’s decision in NRA I is the law in 

that circuit, not Judge Jones’s dissent. But as Judge Jones pointed out, 

the panel “d[id] not do justice to Heller’s tailored approach toward 

historical sources.” NRA II, 714 F.3d at 336 (dissenting from denial of 

rehearing en banc). A bare majority of judges voted against rehearing 

NRA I en banc, and they did not respond to Judge Jones’s dissent. Much 

of Judge Jones’s historical analysis remains unrefuted.

Also, dissents from denial from rehearing en banc, such as the one 

written by Judge Jones, can be persuasive judicial guideposts that 

“address[] arguments raised for the first time during the en banc process, 

correct[] misrepresentations, or highlight[] important facets of the case 

that had yet to be discussed.” Martin v. City of Boise, 920 F.3d 584, 588 

(9th Cir. 2019) (Berzon, J., concurring in the denial of rehearing en 

banc).
JONES V. BONTA 27

Either at the same time as or right after the Act’s passage, 

every state’s militia law obliged young adults to acquire and 

possess firearms. Id. “[A]ny argument that 18- to 20-year 

olds were not considered, at the time of the founding, to have 

full rights regarding firearms” is “inconceivable.” NRA II, 

714 F.3d at 342 (Jones, J., dissenting from denial of 

rehearing en banc).

4

Turning now to the age of majority, the common law age 

of majority at the time of the founding was 21 years old. “[I]t 

was not until the 1970s that States enacted legislation to 

lower the age of majority to 18.” NRA I, 700 F.3d at 201. 

But the relevant age of majority also depended on the 

capacity or activity. William Blackstone, Commentaries

463–64, 465 (1765). In other words, “the age of majority—

even at the Founding—lacks meaning without reference to a 

particular right,” because, “[f]or example, a man could take 

an oath at age 12, be capitally punished in a criminal case at 

age 14, and serve as an executor at age 17.” Id. at 463.

5

Finally, we turn to the Reconstruction era. “By the 

1850’s, the perceived threat that had prompted the inclusion 

of the Second Amendment in the Bill of Rights—the fear 

that the National Government would disarm the universal 

militia—had largely faded as a popular concern, but the right 

to keep and bear arms was highly valued for purposes of selfdefense.” McDonald, 561 U.S. at 770. And even once the 

Fourteenth Amendment was ratified in 1868, it would of 

course still be many years before the Supreme Court 

incorporated the Second Amendment against the states. 

McDonald, 561 U.S. at 791. So, like in the colonial and 

founding eras, state laws were made against the backdrop of 
28 JONES V. BONTA

“Second Amendment analogues in their respective [state] 

constitutions.” NRA I, 700 F.3d at 202 n.16.

Within a few decades of Reconstruction, some states had 

enacted laws regulating access to firearms by minors. Id.

at 202. We identify twenty-eight such state laws passed 

between 1856 and 1897. See Appendix 3. Of these laws, 

nineteen banned sales of only pistols to minors, and several 

had exceptions for hunting or parental consent. Of the nonpistol bans, three only applied to minors under fifteen years 

old, only required parental consent, or both. Eight states 

banned the sale of all firearms or deadly or dangerous 

weapons to minors. Four of these statutes were passed 

between 1881 and 1885.

There were also other Reconstruction era restrictions on 

the right to acquire and bear arms. In particular, some 

statutes were designed to disarm formerly enslaved people 

and members of Native American tribes. See Drummond v. 

Robinson Twp., 9 F.4th 217, 228 (3d Cir. 2021). Kentucky, 

for example, restricted firearm access by African Americans. 

1860 Ky. Acts 245 § 23.

For the most part, cases from this time did not address 

the constitutionality of laws that regulated firearm 

ownership by young adults. Two cases touch on related 

issues, but neither addresses our question. One of them, 

Coleman v. State, 32 Ala. 581 (1858), summarily affirmed a 

lower court’s application of a state statute that prohibited 

selling or lending a pistol to a minor. But the court did not 

address the constitutionality of the law or say how old the 

minor was. In the second case, State v. Callicutt, 69 Tenn. 

714 (1878), on top of not saying how old the minor was, that 

court also addressed concealed carry of dangerous weapons, 

not the right to keep and bear arms more generally.
JONES V. BONTA 29

Professor Cooley’s famous treatise from 1868, relied on 

by the Fifth Circuit panel in NRA I, also does not address the 

question: its sole reference to the issue, citing Callicutt, 

comes in a discussion of the states’ police powers, not of the 

right to keep and bear arms. NRA I, 700 F.3d at 202–03 

(citing Thomas M. Cooley, Treatise on Constitutional 

Limitations 740 n.4 (5th ed. 1883)).

D

We must decide what these historical facts tell us about 

the reach of the Second Amendment. Fyock, 779 F.3d 

at 996. According to Plaintiffs, these facts show that the 

Second Amendment protects young adults’ right to bear 

arms, because young adults were expected to bear arms at 

the time of the founding.

Defendants have two main responses, both of which the 

district court adopted. First, it argues that the protected 

historical right is not a full right to bear arms, but rather only 

a right to bear arms that comes with some obligations of 

militia service, at the very least the inspection requirement. 

Jones, 498 F. Supp. 3d at 1327. In the district court’s 

reading, because militia service came with some regulation, 

the Second Amendment does not protect the right to keep 

and bear arms, absent that regulation. Id.

Second, Defendants argue that the militia laws don’t 

show anything about young adults’ right to bear arms, 

because states in the 19th and 20th centuries also 

criminalized transferring firearms to young people, and 

because the age of majority during much of this country’s 

history was 21 years old, not 18. Id. at 1326–27.

We agree with Plaintiffs: the historical record shows that

the Second Amendment protects young adults’ right to keep 
30 JONES V. BONTA

and bear arms. We address Plaintiffs’ argument and then 

each of Defendants’ counterarguments in turn.

1

“Sixteen was the minimum age for colonial militias 

almost exclusively for 150 years before the Constitution” 

and “[a]t the time of the Second Amendment’s passage, or 

shortly thereafter, the minimum age for militia service in 

every state became eighteen.” NRA II, 714 F.3d at 340 

(Jones, J., dissenting from denial of rehearing en banc). This 

historical militia tradition supports Plaintiffs’ reading. 

Indeed, the historical evidence is so strong that even the 

dissenting judge in the vacated Hirschfeld opinion found it 

“persuasive,” did not dispute it, and simply assumed that the 

law did burden Second Amendment rights, disagreeing only 

at step two. 5 F.4th 407, 463 (4th Cir. 2021) (Wynn, J., 

dissenting), vacated as moot, 14 F.4th 322 (4th Cir. 2021). 

The Second Amendment refers to the militia, and young 

adults had to be in the militia and bring their own firearms. 

This reference implies at least that young adults needed to 

have their own firearms.

2

Defendants’ first argument to the contrary is 

unpersuasive. Defendants agree that young adults needed to 

have firearms for the militia and that the Second Amendment 

refers to the militia. Even so, Defendants argue that the 

Second Amendment only protects older adults’ right to keep 

and bear arms, and not that of young adults. In other words, 

young adults could keep and bear arms and had to serve in 

the militia, but their ability to keep and bear arms was not 

protected by the Second Amendment and could have been 

abridged at any time without posing any burden on the right. 

Because it strays from the most obvious historical 
JONES V. BONTA 31

interpretation, this reading would need to be supported by 

powerful evidence. It is not.

To begin, the district court’s main premise has already 

been rejected. “[T]he Second Amendment conferred an 

individual right to keep and bear arms.” Heller, 554 U.S. 

at 595. The right is not conditioned on militia service. Id.

at 599–600. Indeed, that was the position of the dissenters 

in Heller, and the Court rejected it. Id.

The district court’s position here is a variation on that 

same, already-rejected argument. Rather than argue that all

citizens’ right to bear arms is conditioned entirely on militia 

service, as the dissenters did in Heller, the district court held 

that some citizens’ right to bear arms is conditioned on some 

aspects of militia service. Jones, 498 F. Supp. 3d at 1327. 

And there is another problem with the district court’s 

analysis. At the first step, we just ask whether the 

regulations burden Second Amendment rights at all. Few, if 

any, of our constitutional rights are absolute, and asking if a 

right is burdened is different from asking if a particular 

burden is constitutional. That there were some firearm 

regulations associated with militia membership could show 

that some restrictions can be constitutional. But the 

regulations themselves cannot dispositively show that there 

is no burden.

The historical analysis controls the first step of the 

inquiry but not the second. In applying a tier of scrutiny in 

the second step, we focus not on the historical record (i.e., 

what kinds of regulations were present at the founding), but 

on the gravity of the state’s interest (compelling/significant/

legitimate) and the degree of tailoring between the regulation 

and that interest (narrow tailoring/reasonable fit/rational 

relation). In finding no burden on Second Amendment 
32 JONES V. BONTA

rights, the district court improperly relied on founding era 

regulations.

3

We now turn to Defendants’ second argument, which 

relies on laws passed in the 19th and 20th centuries.

First, Defendants fail to adequately address the 

founding-era militia tradition: “19th-century sources may be 

relevant to the extent they illuminate the Second 

Amendment’s original meaning, but they cannot be used to 

construe the Second Amendment in a way that is 

inconsistent with that meaning.” NRA II, 714 F.3d at 339 n.5 

(Jones, J., dissenting from denial of rehearing en banc). 

Defendants argue, citing NRA I, that “a regulation can be 

deemed ‘longstanding’ even if it cannot boast a precise 

founding era analog.” 700 F.3d at 196. But even if we were 

to agree, that would not save the argument. Here, there is 

not just a vacuum at the founding era: instead, the founding 

era evidence of militia membership undermines Defendants’ 

interpretation.

Even putting that aside, the Reconstruction era laws 

themselves are not convincing. On top of the deeply 

offensive nature of many of them, nineteen out of twentyeight banned only the sale of handguns, and California’s 

handgun ban is not at issue. The Reconstruction era laws 

show that long guns were far less regulated than handguns. 

Ruling out other state laws that are similarly inapplicable 

(laws only requiring parental consent, only banning 

dangerous and deadly weapons, and only applying to 

children under fifteen years old), we are left with only five 

complete bans on sales of firearms to minors. Of these five 

laws, three were passed in states without a Second 
JONES V. BONTA 33

Amendment analog in their state constitution.21 So only two 

states—Kentucky and Michigan—banned the sale of 

firearms to minors, see 1873 Ky. Acts 359, 1883 Mich. Pub. 

Acts 144, and had a Second Amendment analog, see Ky. 

Const. of 1850, Art. 13, § 25; Mich. Const. of 1850, Art. 17, 

§ 7. These two laws—both passed over a decade after the 

ratification of the Fourteenth Amendment—cannot 

contravene the Second Amendment’s original public 

meaning.

4

As to Defendants’ argument relying on the age of 

majority being 21, rather than 18, we agree with the Fifth 

Circuit and the Fourth Circuit’s vacated opinion in 

Hirschfeld that “majority or minority is a status that lacks 

content without reference to the right at issue.” 5 F.4th 

at 435; NRA I, 700 F.3d at 204 n.17.22 “As Blackstone’s 

Commentaries makes clear, the relevant age of majority 

depended on the capacity or activity.” Hirschfeld, 5 F.4th 

at 435 (citing 1 William Blackstone, Commentaries at 463–

65). We also agree that “constitutional rights were not 

generally tied to an age of majority, as the First and Fourth 

Amendments applied to minors at the Founding as they do 

21 New York passed two laws prohibiting the sale of firearms to 

minors. N.Y. Penal Code ch. 375 § 1 (1883); id. § 409 (1885). But its 

state constitution had no Second Amendment analog. (There is a Second 

Amendment analog in N.Y. Civ. Rights Law § 4, but it was not passed 

until the 20th century.) Delaware also banned the sale of firearms to 

minors, 16 Del. Laws 716 (1881), but it did not ratify its Second 

Amendment analog until 1987, Del. Const., Art. 1, § 20.

22 We find it telling that even though they came to different ultimate 

conclusions, the Fifth Circuit and the Hirschfeld panel agreed on this 

point.
34 JONES V. BONTA

today” and that “the age of majority Blackstone identifies for 

different activities tells us little about the scope of the 

Second Amendment’s protections.” Id.

5

Finally, Defendants argue that California’s laws are just 

“conditions and qualifications on the commercial sale of 

arms,” or “longstanding prohibitions on the possession of 

firearms” by certain groups. Because of the hunting license 

exception, the long gun regulation is more naturally 

considered a “condition or qualification,” while the 

semiautomatic rifle ban is more aptly categorized as a 

“prohibition.” Heller itself called such measures 

“presumptively lawful,” 554 U.S. at 626–27 n.26, so 

Defendants argue that California’s laws pose no burden on 

Second Amendment rights. We disagree. These laws 

burden Second Amendment rights, notwithstanding this 

observation from Heller.

First, the “longstanding prohibitions” referred to in 

Heller were “prohibitions on the possession of firearms by 

felons and the mentally ill,” id. at 626, not prohibitions on a 

broader set of groups. Young adults are neither felons nor 

mentally ill. The semiautomatic rifle law does not fall within 

the Supreme Court’s enumerated categories.

Second, as to the long gun law, there is a more 

fundamental problem. In Heller, the Supreme Court noted 

just that “nothing in [its] opinion should be taken to cast 

doubt on” laws such as “conditions and qualifications on the 

commercial sale of arms,” and that such laws were 

“presumptively lawful.” Id. at 627, n.26. But this does not 

mean that all such laws pose no burden on Second 

Amendment rights at all. “On the one hand, this language 

could be read to suggest the identified restrictions are 
JONES V. BONTA 35

presumptively lawful because they regulate conduct outside 

the scope of the Second Amendment. On the other hand, it 

may suggest the restrictions are presumptively lawful 

because they pass muster under any standard of scrutiny.” 

Pena, 898 F.3d at 976 (citing United States v. Marzarrella, 

614 F.3d 85, 91 (3d Cir. 2010)). The answer need not be the 

same for every regulation. Some presumptively lawful 

measures might burden conduct unprotected by the Second 

Amendment, while others might presumptively pass the 

applicable level of scrutiny.

Here, our historical analysis leads us to conclude that 

young adults have a Second Amendment right to keep and 

bear arms. Because that right includes the right to purchase 

arms, both California laws burden conduct within the scope 

of the Second Amendment. The long gun law is a 

“condition[] . . . on the commercial sale of arms,” Heller, 

554 U.S. at 627, but it still burdens Second Amendment 

rights. The Supreme Court’s observation in Heller is no 

obstacle to this holding.

* * *

Ultimately, the Second Amendment protects the right of 

the people to keep and bear arms and refers to the militia. 

Young adults were part of the militia and were expected to 

have their own arms. Thus, young adults have Second 

Amendment protections as “persons who are a part of a 

national community.” Id. at 580 (citing Verdugo–Urquidez, 

494 U.S. at 265). Defendants point to contemporaneous 

regulations, arguing that some states banned young adults 

from having firearms later on, and that the age of majority 

was 21, not 18. But these observations do not prove their 

point: permissible regulations can still burden the right, later 

laws cannot contravene the original public meaning, and the 

age of majority depends on the conduct. The California laws 
36 JONES V. BONTA

burden Second Amendment rights and the district court erred 

in concluding otherwise.

E

Having concluded that the laws burden Second 

Amendment rights, we now consider the district court’s 

choice of a tier of scrutiny and its application of that tier. 

Fyock, 779 F.3d at 996.

The district court properly applied intermediate scrutiny 

to the long gun regulation but should have applied strict 

scrutiny to the semiautomatic rifle ban. Similarly, the 

district court did not abuse its discretion in holding that the 

long gun regulation was likely to survive. But even under 

intermediate scrutiny, the district court still abused its 

discretion in holding that the semiautomatic rifle ban was 

likely to survive.

1

First, we must determine the appropriate level of 

scrutiny. Reviewing de novo, see Joelner, 508 F.3d at 431, 

we consider both “how close [each] law comes to the core of 

the Second Amendment right” and “the severity of [each] 

law’s burden on [that] right,” Mai, 952 F.3d at 1115 (citing 

Chovan, 735 F.3d at 1138). Laws that regulate how 

individuals can exercise the right are less severe; laws that 

amount to a total prohibition of the right are more severe. 

See Pena, 898 F.3d at 977 (citing Chovan, 735 F.3d at 1138). 

Similarly, “firearm regulations which leave open alternative 

channels for self-defense are less likely to place a severe 

burden on the Second Amendment right than those which do 

not.” Jackson, 746 F.3d at 961 (citation omitted). The 

district court properly applied intermediate scrutiny to the 
JONES V. BONTA 37

long gun regulation, but improperly applied it to the 

semiautomatic rifle ban.

i

As to the long gun regulation, the district court properly 

applied intermediate scrutiny. The burden on Second 

Amendment rights posed by this rule on its face is not severe. 

This rule facially more aptly regulates “the manner in which 

persons may exercise their Second Amendment right.” Id.

The long gun regulation allows a young adult to buy a 

long gun if he gets a hunting license. This requirement does 

not prevent young adults from having any firearms or from 

using them in any particular way. Because this regulation 

does not impose a significant burden on the Second 

Amendment right to keep and bear arms, the district court 

properly applied intermediate scrutiny.

ii

As to the semiautomatic rifle ban, we part company with 

the district court. Strict scrutiny applies. The main 

difference between this ban and the long gun regulation is 

the exceptions. The long gun regulation has a readily 

available exception, at least on its face—young adults can 

get hunting licenses.

The semiautomatic rifle ban has no such exception: the 

only young adults who can buy semiautomatic rifles are 

some law enforcement officers and active-duty military 

servicemembers.

It’s one thing to say that young adults must take a course 

and purchase a hunting license before obtaining certain 

firearms. But to say that they must become police officers 
38 JONES V. BONTA

or join the military? For most young adults, that is no 

exception at all.23 In effect, this isn’t an exception that 

young adults can avail themselves of by joining the police 

force or military; it is a blanket ban for everyone except 

police officers and servicemembers.

We have never held that intermediate scrutiny applied to 

a rule that banned the purchase of a major category of 

firearm. To the contrary, our cases applying intermediate 

scrutiny have dealt with two kinds of laws. First, we have 

applied intermediate scrutiny to laws that govern conduct 

outside the core of the Second Amendment because the 

actors are not “law-abiding, responsible citizens” under 

Heller. See Torres, 911 F.3d at 1262–63; United States v. 

Singh, 979 F.3d 697, 725 (9th Cir. 2020) (citing Torres, 

911 F.3d at 1262–63); Mai, 952 F.3d at 1115. This rule does 

not apply here. And second, we have applied intermediate 

scrutiny to laws that regulate either the way people can 

obtain or use firearms, or auxiliary features of those 

firearms. See Pena, 898 F.3d at 977–78 (requiring specific 

safety features and microstamped serial numbers); Bauer, 

858 F.3d at 1221–22 (using firearm purchase fees to fund 

law enforcement programs); Silvester v. Harris, 843 F.3d 

816, 827 (9th Cir. 2016) (ten day waiting period to purchase 

a gun); Fyock, 779 F.3d at 998–99 (ban of “large capacity” 

magazines); Jackson, 746 F.3d at 963–65 (regulation of sale 

of bullets); Duncan v. Bonta, 19 F.4th 1087, 1104 (9th Cir. 

2021) (“large capacity” magazines). We have held that 

23 Many young adults cannot even qualify for the “active peace 

officer” exception, because although individuals may enroll in the police 

academy at age 18, numerous political subdivisions require police 

officers to be 21. See, e.g., General Information and Qualifications, San 

Francisco Police Department, https://www.sanfranciscopolice.org/yoursfpd/careers/sworn-job-openings/general-information-andqualifications (last visited Nov. 18, 2021).
JONES V. BONTA 39

intermediate scrutiny applies to laws like these because they 

regulate the way people can exercise their Second 

Amendment rights. Indeed, in Duncan, we were careful to 

avoid approving of applying only intermediate scrutiny to 

laws banning certain firearms entirely. Id. at 1104. We 

noted that the law in that case “ha[d] no effect whatsoever 

on which firearms may be owned” and that, as far as that law 

was concerned, “anyone may own any firearm at all.” Id. 

The opposite is true here: this law bans almost all young 

adults from having semiautomatic rifles. We have never 

applied intermediate scrutiny to a ban like this.

We have often observed that there is “near unanimity in 

the post-Heller case law that, when considering regulations 

that fall within the scope of the Second Amendment, 

intermediate scrutiny is appropriate.” Mai, 952 F.3d at 1115 

(citing Torres, 911 F.3d at 1262). But this observation 

makes no difference here for a simple reason: the level of 

scrutiny depends on the law at issue. That states and 

localities at one point had passed laws that demanded only 

intermediate scrutiny analysis says little about what kinds of 

laws they may have passed later. Indeed, if states pass 

increasingly strict gun laws, those laws may demand higher 

scrutiny, especially considering their cumulative effect.

Handguns are the quintessential self-defense weapon, 

see Heller, 554 U.S. at 629, but young adults already cannot 

purchase them, Cal. Penal Code § 27505, 18 U.S.C. 

§ 922(b)(1). And under this ban, they also cannot purchase 

semiautomatic centerfire rifles. That leaves nonsemiautomatic centerfire rifles, rimfire rifles, and shotguns. 

Non-semiautomatic rifles are not effective as self-defense 

weapons because they must be manually cycled between 

shots, a process which becomes infinitely more difficult in a 

life or death situation. Rimfire rifles generally aren’t good 
40 JONES V. BONTA

for self-defense either, because rimfire ammunition has 

“poor stopping power” and are mostly used for things like 

hunting small game. David Steier, Guns 101, 13 (2011). So 

for self-defense in the home, young adults are left with 

shotguns.

Even acknowledging that shotguns are effective 

weapons for self-defense in the home, shotguns are 

outmatched by semiautomatic rifles in some situations.24 

Semiautomatic rifles are able to defeat modern body armor, 

have a much longer range than shotguns and are more 

effective in protecting roaming kids on large homesteads, are 

much more precise and capable at preventing collateral 

damage, and are typically easier for small young adults to 

use and handle.

Thus, we hold that California’s ban is a severe burden on 

the core Second Amendment right of self-defense in the 

home. Young adults already cannot buy the quintessential 

self-defense weapon, Heller, 554 U.S. at 629, and this ban 

now stops them from buying semiautomatic rifles, leaving 

only shotguns. So handguns aside, this law takes away one 

of the two remaining practical options for self-defense in the 

home, and leaves young adults with a self-defense weapon 

24 Defendants argue that we may not consider Plaintiffs’ facts about 

these categories of guns, because they were not submitted below. But 

these facts are legislative facts, “which have relevance to legal reasoning 

and the lawmaking process,” rather than adjudicative facts, which “are 

simply the facts of the particular case.” Advisory Comm. Note, Fed. R. 

Evid. 201. We have previously considered this kind of fact in a Second 

Amendment challenge, even over a defendant’s challenge that it was not 

in the record below. See Chovan, 735 F.3d at 1140–41 (considering 

social science studies). In any case, Defendants did not contest 

Plaintiffs’ evidence about rimfire semiautomatic rifles, and we agree 

with Defendants that semiautomatic shotguns likely are effective selfdefense weapons.
JONES V. BONTA 41

which is not ideal or even usable in many scenarios. That is 

a severe burden.

In arguing that the burden is not severe, the dissent points 

first to the intrafamily transfer and loan provisions. Dissent 

at 87. We disagree that these provisions sufficiently 

alleviate the burden. To start, young adults remain severely 

restricted in getting firearms through family transfers: Gifts 

from parents and grandparents are allowed but strawman 

purchases are not. See Cal. Penal Code §§ 27875 (family 

transfers), 27515 (strawman purchases). Moreover, 

allowing family transfers but not purchases makes young 

adults’ Second Amendment rights conditional on the rights 

of others. The family transfer provision is unavailable to 

young adults whose parents or grandparents have passed 

away, do not have a gun to transfer, or are unable or 

unwilling to participate in a transfer. The first loan 

provision, which permits loans of up to thirty days from a 

slightly broader subset of family members, suffers from 

similar problems, and is temporally limited. Cal. Penal Code 

§ 27880. And the remaining loan provisions are only 

available in even more limited circumstances: for only three 

days and only if the firearm is used in the presence of the 

loaner, Cal. Penal Code § 27885; if the firearm stays only at 

the loaner’s residence, Cal. Penal Code § 27881; or if the 

loan is only for the hunting season, which is only part of the 

year, Cal. Penal Code § 27950. These provisions do not 

alleviate the sales ban’s severe burden on the right of selfdefense in the home.

The dissent’s second rationale is that California’s ban 

does not impose a severe burden because young adults can 

just wait to buy semiautomatic rifles until they are 21. 

Dissent at 87. It’s true that we’ve applied intermediate 

scrutiny to a ten-day waiting period. Silvester, 843 F.3d 
42 JONES V. BONTA

at 827. But telling young adults to wait up to three years is 

a much more severe burden than having to wait a week and 

a half. We are not aware of any precedent that has adopted 

the dissent’s rationale. Indeed, telling an 18-year-old that he 

can vote when he turns 21 would hardly minimize the 

existing constitutional deprivation.

Finally, the dissent argues that our reasoning is circular 

because any subset of guns can be considered a category. 

Dissent at 88; see Worman v. Healey, 922 F.3d 26, 32 n.2 

(1st Cir. 2019). But we do not hold that a ban of any kind or 

subset of gun must necessarily receive strict scrutiny. We 

hold just that this ban of semiautomatic rifles requires strict 

scrutiny, because handguns are already banned, and 

semiautomatic rifles are now effectively banned. That 

means two of the three types of effective self-defense 

firearms are banned, leaving young adults with limited or 

ineffective alternatives in many self-defense scenarios, and 

severely burdens their Second Amendment rights.

2

Having determined that intermediate scrutiny applies to 

the long gun regulation, we now review for abuse of 

discretion the district court’s application of that test. In 

finding that the long gun regulation was likely to survive 

intermediate scrutiny, Jones, 498 F. Supp. 3d at 1329–30, 

the district court did not abuse its discretion.

California’s objective is “to increase public safety 

through sensible firearm control and limit access to certain 

firearms for some Young Adults with proper safety 

training.” Id. at 1330. In its brief, Defendants referred to the 

objective more broadly as promoting public safety and 

reducing gun violence and crime.
JONES V. BONTA 43

Though public safety is important, firearms were also 

dangerous in 1791, when the Second Amendment was 

ratified, and the government then also had an interest in 

promoting public safety. This is not a standalone 

government interest separate from the Second Amendment: 

The Second Amendment itself, “[l]ike the First, . . . is the 

very product of an interest balancing by the people.” Heller, 

554 U.S. at 635; see also Heller v. District of Columbia, 

670 F.3d 1244, 1277 (D.C. Cir. 2011) (Kavanaugh, J., 

dissenting). “[T]he Second Amendment has already made 

the basic policy choice for us.” Ass’n of N.J. Rifle & Pistol 

Clubs v. Att’y Gen. of N.J., 910 F.3d 106, 129 (3d Cir. 2018) 

(Bibas, J., dissenting) (citing Heller, 554 U.S. at 634–36). 

Thus, in the reasonable fit part of the analysis, the 

importance of the interest has no effect: once the interest is 

shown to be important, the question becomes whether the 

law is a reasonable fit. The importance of the interest cannot 

override Second Amendment rights.

Defendants will likely be able to show that California’s 

long gun regulation is a reasonable fit for the stated 

objectives. The main effect of the rule is to require young 

adults to take a hunter education class before they can get 

long guns. So whether the rule is a reasonable fit depends 

on what the law requires to happen in these hunter education 

classes.

Some context for the hunter education classes is helpful. 

Generally, before purchasing a gun, Californians must get an 

FSC. Cal. Penal Code §§ 31615, 27540(e). Getting the 

certificate requires passing a multiple-choice test and a safe 

handling demonstration, both of which can happen at the 

point of sale. Id. In enacting the regulation at issue, 

however, California changed the requirements for young 

adults. Rather than having to get an FSC, a young adult must 
44 JONES V. BONTA

instead get a hunting license, which requires them to first 

take and pass a hunter education class. California offers inperson and hybrid class options. The course takes 

approximately ten hours and costs less than $30. After 

passing the course, a young adult may purchase a hunting

license for $54.

The class covers “firearm safety information” that is 

“more extensive” than what is covered by the FSC test and 

demonstration. The class also discusses other aspects of 

hunting that are less relevant to non-hunting uses of long 

guns (e.g., conservation). Cal. Fish & Game Code 

§ 3051(a).

So, overall, California wants to “increase public safety 

through sensible firearm control.” Jones, 498 F. Supp. 3d 

at 1330. We agree with the district court that sensible 

firearm control includes things like “proper training and 

maintenance of firearms.” Id. California has pursued that 

end by requiring young adults to take a class which teaches 

them, among other things, “firearm safety information.” 

Because the hunting classes include other, unrelated

information, the requirement is not a perfect fit. In other 

words, this requirement likely is neither narrowly tailored 

nor the least restrictive means for achieving California’s 

goal. But it doesn’t have to be: it only has to be a reasonable 

fit. And it likely is.

Before moving on to the semiautomatic rifle ban, we 

pause to make one last point. In their complaint, Plaintiffs 

have challenged the long gun regulation facially and as 

applied. But they appeal the denial of the preliminary 

injunction only on the basis that the law is facially invalid. 

And in evaluating a facial challenge, we consider only the 

text of the law—we judge the law on its face, not in its 

application. See Calvary Chapel Bible Fellowship v. County 
JONES V. BONTA 45

of Riverside, 948 F.3d 1172, 1176 (9th Cir. 2020). Nothing 

we have said forecloses the possibility that the regulation 

might still be unconstitutional as applied. For example, if 

the hunter education courses were prohibitively expensive or 

were only offered on a limited basis, then California might 

be applying the regulation unconstitutionally. Still, as to the 

facial challenge at issue, the district court did not abuse its 

discretion in finding that the regulation would survive 

intermediate scrutiny.

3

As to the semiautomatic rifle ban, because we have held 

that strict scrutiny applies, we reverse on that basis. Even 

so, we also hold in the alternative that, even if intermediate 

scrutiny were to apply, the district court still abused its 

discretion in finding that the ban was likely to survive, and

reverse on this alternative basis as well. (Because we hold 

that the ban is unlikely to survive intermediate scrutiny, we 

also by implication hold that it is even less likely to survive 

strict scrutiny.) We first clarify the nature of the 

intermediate scrutiny test, and then discuss its application 

here.

i

“[A]ll forms of the [intermediate scrutiny] standard 

require (1) the government’s stated objective to be 

significant, substantial, or important; and (2) a reasonable fit 

between the challenged regulation and the asserted 

objective.” Jackson, 746 F.3d at 965 (citing Chovan, 

735 F.3d at 1139). Unfortunately, despite regularly 

acknowledging that a reasonable fit is required, we have 

increasingly dispensed with the fit requirement, relying 

instead on a cherry-picked formulation of the rule that 

requires only that the regulation “promote a substantial 
46 JONES V. BONTA

government interest that would be achieved less effectively 

absent the regulation.” See, e.g., Mai, 952 F.3d at 1116. 

Still, we have not silently transformed the test: intermediate 

scrutiny continues to require an analysis of whether the 

regulation is a reasonable fit for the government’s objective, 

not just an assessment of whether it does anything at all.

We transported intermediate scrutiny into the Second

Amendment context from First Amendment cases. See 

Fyock, 779 F.3d at 1000 (citing Colacurcio v. City of Kent, 

163 F.3d 545, 553 (9th Cir. 1998)). To satisfy intermediate 

scrutiny in the First Amendment context, the regulation must 

first “promote[] a substantial government interest that would 

be achieved less effectively absent the regulation.” United 

States v. Albertini, 472 U.S. 675, 689 (1985). In other words, 

the regulation must accomplish something. But that’s not 

all: “[t]o be sure, this standard does not mean that a time, 

place, or manner regulation may burden substantially more 

speech than is necessary to further the government’s 

legitimate interests.” Ward v. Rock Against Racism, 

491 U.S. 781, 799 (1989) (citing Frisby v. Schultz, 487 U.S. 

481, 485 (1988)). The government still “may not regulate 

expression in such a manner that a substantial portion of the 

burden on speech does not serve to advance its goals.” Id. 

This is the essence of the intermediate scrutiny test: the 

regulation must be a reasonable fit for the government’s 

stated objective, which means not just that it accomplishes 

something, but also that it does not burden far more speech 

than is necessary.

Unfortunately, in our Second Amendment cases, we 

have sometimes omitted one-half of the inquiry. When we 

transplanted intermediate scrutiny from the First 

Amendment to the Second, we continued to say that 

intermediate scrutiny requires “a reasonable fit between the 
JONES V. BONTA 47

challenged regulation and the asserted objective,” but we did 

not bring the does-not-burden-more-conduct-than-necessary 

part. Fyock, 779 F.3d at 1000 (citing Colacurcio, 163 F.3d 

at 553) (but leaving off the second half of the test); Peruta,

824 F.3d at 942 (en banc); id. at 946 (Graber, J., concurring) 

(citing Fyock, 779 F.3d at 1000); Silvester, 843 F.3d at 829 

(citing Fyock, 779 F.3d at 1000); Mahoney v. Sessions, 

871 F.3d 873, 882 (9th Cir. 2017) (citing Fyock, 779 F.3d 

at 1000); Torres, 911 F.3d at 1264 (citing Fyock, 779 F.3d 

at 1000); Singh, 979 F.3d at 725 (citing Fyock, 779 F.3d 

at 1000); Mai, 952 F.3d at 1116 (citing Torres, 911 F.3d 

at 1263). And bringing only the first half of the test is 

“incomplete” because “[i]ntermediate scrutiny also requires

that a law not burden substantially more protected activity 

than is necessary to further the government’s interest.” 

Silvester v. Becerra, 138 S. Ct. 945, 950 (2018) (Thomas, J., 

dissenting from denial of certiorari).

When we omit the second part of the inquiry, we neglect 

to consider fit at all. Something fits with something else if 

it is “well adapted or suited to the conditions or 

circumstances of the case” or if it is “proper or appropriate.” 

“Fit, adj.,” Oxford Dictionary of English (3d ed.) (2010). So 

a law is a good fit for a goal if it regulates only when it helps 

achieve that goal, and not in other instances. The more 

innocent conduct that is regulated, the less good a fit the law 

is. And conversely, sweeping in less innocent conduct 

makes for a better fit.

Asking only if the regulation accomplishes something 

does not address “fit” at all: A straw and a two-foot pipe both 

transport fluids, but only one of them is a reasonable fit for 

drinking a soda. Intermediate scrutiny requires us to ask 

whether a regulation is a reasonable fit for the government’s 
48 JONES V. BONTA

stated objective. And that means that we have to consider 

fit.

The dissent offers a rationale for why intermediate 

scrutiny should be different in the Second Amendment 

context, relative to the First Amendment, and suggests that 

our failure to bring over the second part of the test was 

purposeful. Dissent at 90–91. But this is an after-the-fact 

rationalization, because in the series of cases in which we 

used a weaker version of the rule, we simply left off the 

second part of the test without explaining why. See, e.g., 

Fyock, 779 F.3d at 1000 (citing Colacurcio, 163 F.3d at 

553). And contrary to the dissent’s rationale, a majority of 

judges in a recent en banc panel also recently reaffirmed that 

there is “no merit to the suggestion that the Ninth Circuit’s 

application of intermediate scrutiny in Second Amendment 

cases is somehow less exacting than its application of the 

standard in other kinds of cases.” Duncan, 19 F.4th at 1138 

(Berzon, J., concurring). In any case, we have continued to 

acknowledge that “all forms of the [intermediate scrutiny] 

standard require . . . a reasonable fit between the challenged 

regulation and the asserted objective.” Jackson, 746 F.3d 

at 965 (citing Chovan, 735 F.3d at 1139). But the dissent’s 

version of the rule does not contain an analysis of fit.

ii

California’s stated objective for the semiautomatic rifle 

ban is the same as for the long gun regulation: to promote 

public safety and reduce gun violence and crime. Jones, 

498 F. Supp. 3d at 1330. The question is whether the ban—

prohibiting commerce in semiautomatic rifles for all young 

adults except those in the police or military—is a reasonable 

fit for that aim.
JONES V. BONTA 49

We agree with Defendants that the fit need only be 

reasonable, not perfect. Jackson, 746 F.3d at 969. But the 

fit here is likely not even reasonable. The district court 

abused its discretion in finding that Defendants could likely 

show a reasonable fit.

In Craig v. Boren, the Supreme Court considered a law 

that was a much better fit than this law and still found the fit 

unreasonable. 429 U.S. 190 (1976). The law in Craig v. 

Boren banned the sale of some beer to men between 18 and 

21, but not to women in the same age range. Id. at 191–92. 

Intermediate scrutiny applied, and the objective of the law 

was to enhance traffic safety. Id. at 199. The state argued 

that its law was a reasonable fit for that objective because 

young men were more than ten times more likely to be 

arrested for driving under the influence than young women. 

Id. at 199–201. But the plaintiff argued that the law was 

overbroad: only 2% of young men were arrested for drunk 

driving, but the law regulated all young men. In other words, 

the law regulated fifty times more men than was ideal: it 

regulated 100% of them, even though only 2% would drive 

drunk.

The Supreme Court struck down the law. “While such a 

disparity is not trivial in a statistical sense, it hardly can form 

the basis for employment of a gender line as a classifying 

device.” Id. at 201. In other words, a ten times increase in 

risk cannot justify regulating fifty times more people than is 

ideal: “if maleness is to serve as a proxy for drinking and 

driving, a correlation of 2% must be considered an unduly 

tenuous ‘fit.’” Id.

The fit here is far more tenuous than that. In adopting 

the ban at issue, the California legislature considered various 

statistics. In particular, it knew that young adults were less 

than 5% of the population but accounted for more than 15% 
50 JONES V. BONTA

of homicide and manslaughter arrests. In other words, 

young adults are more than three times more likely to be 

arrested for homicide and manslaughter than other adults. 

But as Plaintiffs point out, only 0.25% of young adults are 

arrested for violent crimes. In other words, California’s law 

sweeps in 400 times (100% divided by 0.25%) more young 

adults than would be ideal.25 Because it regulates so much 

more conduct than necessary to achieve its goal, the law is 

unlikely to be a reasonable fit for California’s objectives.

On this point, the dissent argues that we have 

transformed intermediate scrutiny into an impermissible 

“rigid statistical framework.” Dissent at 93 (citing 

Hirschfeld, 5 F.4th at 479 (Wynn, J., dissenting)). But we 

do not hold that Craig v. Boren established a rigid, brightline, statistical rule for reasonable fit. Instead, we simply 

note that Craig v. Boren is an example of a law that was not 

a reasonable fit. We establish no rigid statistical framework; 

we use a few numbers only to compare Craig v. Boren with 

this case, and to illustrate that the fit here is substantially 

more tenuous. The dissent also argues that we compare 

“apples to oranges” because Craig v. Boren concerned 

gender discrimination, for which intermediate scrutiny 

applies, whereas this case is about age discrimination, for 

which, under the Fourteenth Amendment, we only review 

for rational basis. Dissent at 94; see Kimel v. Fla. Bd. of 

Regents, 528 U.S. 62, 83 (2000). But the dissent agrees that 

intermediate scrutiny applies here, not rational basis. It is 

the Second Amendment we are applying after all.

25 The law actually sweeps even more broadly that, because the 400 

times over regulation figure does not account for repeat offenders. And 

the denominator is also inflated because it includes all violent crimes, 

not just homicide and manslaughter.
JONES V. BONTA 51

We pause here for an observation. The Second 

Amendment “does not demand ‘an individualized hearing’ 

to assess Plaintiff’s own personal level of risk.” Mai, 

952 F.3d at 1119 (citing Tyler v. Hillsdale Cnty. Sheriff’s 

Dep’t, 837 F.3d 678, 698 n.18 (6th Cir. 2016) (en banc)). 

But still, one way that states can improve regulations’ fit is 

by having exceptions or more individualized assessment. 

See, e.g., Singh, 979 F.3d at 725 (reasonable fit because 

statute “carves out exceptions”); Horsley v. Trame, 808 F.3d 

1126, 1132 (7th Cir. 2015) (reasonable fit because “a person 

for whom a parent’s signature is not available can appeal to 

the Director of the Illinois State Police”). There are only 

limited exceptions here, and no individualized assessment of 

any sort.

This result tracks our prior applications of intermediate 

scrutiny in the Second Amendment context. In Chovan, we 

found a reasonable fit with a law that banned convicted 

domestic criminals from having guns. 735 F.3d at 1139–42. 

In finding a reasonable fit there, we relied on the fact that “a 

high rate of domestic violence recidivism exists,” and cited 

studies “estimating a rate of domestic violence recidivism 

between 35% and 80%.” Id. What’s more, the law only 

regulated convicted domestic criminals, not anyone else. 

Similarly, in Mai, we relied on statistics showing that 

persons who had been involuntarily confined were 39 times 

more likely to commit suicide, as well as figures showing 

that even years later, the risk remained much higher than 

normal. 952 F.3d at 1118. And again, the law only regulated 

people who had been involuntarily confined, not anyone 

else. Both laws are a far cry from the situation here: only 

three times increased risk and more than 400 times 

overregulation.
52 JONES V. BONTA

This result also fits with the deference that we owe to the 

California legislature. “[W]e must accord substantial 

deference to [the California legislature’s] predictive 

judgments.” Mai, 952 F.3d at 1118 (citing Turner Broad. 

Sys., Inc. v. FCC, 512 U.S. 622, 665 (1994) (Turner I)). And 

we have. We defer to California’s assessment of the harm, 

to its statistics about young adults, and to its assessment that 

banning the sale of semiautomatic rifles would promote 

public safety.26 But in Turner II, the Supreme Court did not 

defer when assessing the fit itself. See Turner Broad. Sys., 

Inc. v. FCC, 520 U.S. 180, 213 (1997). We also defer to the 

legislature’s judgment only on the effect of a law, and not on 

the law’s fit. See, e.g., Mai, 952 F.3d at 1117–21.

Ultimately, in applying intermediate scrutiny, the district 

court had to do two things: identify the proper legal test for 

“reasonable fit,” and measure the semiautomatic rifle ban 

against that test. Properly identifying the legal standard is a 

question of law that we review de novo; applying it is a 

mixed question that we review for abuse of discretion. The 

district court used the wrong legal rule. Because the district 

court misapprehended the intermediate scrutiny test, it 

abused its discretion by getting the law wrong.

F

1

The district court also erred in its analysis of the 

irreparable harm preliminary injunction factor. “[T]he 

26 Here, the dissent argues that we do not adequately discuss the 

evidence that the California legislature considered. Dissent at 94–95. 

But we defer to the legislature’s predictive judgments, and we agree that 

its ban would promote public safety. Because we accept the legislature’s 

conclusion on this point, we need not discuss its evidence further.
JONES V. BONTA 53

deprivation of constitutional rights unquestionably 

constitutes irreparable injury.” Melendres v. Arpaio, 

695 F.3d 990, 1002 (9th Cir. 2012) (citing Elrod v. Burns, 

427 U.S. 347, 373 (1976)) (internal quotation marks 

omitted). The district court offered three rationales for why 

Plaintiffs would not be irreparably injured. They were all 

error.

First, the district court erred in holding that there was no 

irreparable harm because young adults could still obtain 

firearms under an exception. Jones, 498 F. Supp. 3d at 1331. 

As we discussed above, the exceptions do not alleviate the 

ban’s severe burden on Second Amendment rights. They do 

not allow Plaintiffs to avoid irreparable harm for the same 

reasons. The main exception—for young adults with 

hunting licenses—only applies to the long gun regulation, 

not the semiautomatic rifle ban. So as to the semiautomatic 

rifle ban, this exception makes no difference. And as we 

discussed above, the exception for law enforcement officers 

and active-duty military members does not apply for most 

young adults. That leaves the family transfer and loan 

provisions. But the loan provisions are very limited, and it 

is not clear that young adults really can get firearms through 

family transfers, because gifts from family members are 

allowed but strawman purchases are not. See Cal. Penal 

Code §§ 27875 (family transfers), 27515 (strawman 

purchases).

Second, the district court observed that young adults 

could still get firearms by using them “at shooting ranges 

under certain circumstances.” Jones, 498 F. Supp. 3d 

at 1331. But using a firearm at a shooting range does not 

allow young adults to exercise their core Second 

Amendment right of self-defense in the home. See Heller, 
54 JONES V. BONTA

554 U.S. at 630. Young adults’ ability to go to shooting 

ranges does not affect whether the harm here is irreparable.

And third, the district court relied on the fact that 

“[P]laintiffs may still access firearms . . . when they turn 

21.” Jones, 498 F. Supp. 3d at 1331. But a constitutional 

violation is not reparable just because it is definite in 

duration: a harm need not last indefinitely to be irreparable. 

In other words, we would not tell a plaintiff suing over 

voting right restrictions on young adults that her harm was 

not irreparable because she could still vote when she turned 

21.

2

Moreover, even putting aside these errors on irreparable 

harm, “the district court’s likelihood-of-success 

determination [also] tainted its evaluation of the remaining 

three Winter elements.” Pom Wonderful LLC v. Hubbard, 

775 F.3d 1118, 1133 (9th Cir. 2014). Our determination that 

Plaintiffs are likely to succeed on the merits “fundamentally 

changes the district court’s calculus.” BOKF, NA v. Estes, 

923 F.3d 558, 565 (9th Cir. 2019). Still, “a preliminary 

injunction is an extraordinary remedy never awarded as of 

right.” Benisek v. Lamone, 138 S. Ct. 1942, 1943 (citing 

Winter, 555 U.S. at 24). And “the grant of a preliminary 

injunction is a matter committed to the discretion of the trial 

judge.” Epona v. County of Ventura, 876 F.3d 1214, 1227 

(9th Cir. 2017) (citing Sierra On-Line, Inc. v. Phoenix 

Software, Inc., 739 F.2d 1415, 1421 (9th Cir. 1984)). This 

makes sense here because reconsidering the remaining 

factors may be “at least in part, fact-dependent.” BOKF, 

923 F.3d at 565. Thus, despite Plaintiffs’ “overwhelming 

likelihood of success on the merits, we remand this case to 

the district court to consider the remaining [three] Winter

factors consistent with this opinion.” Goldman, Sachs & Co. 
JONES V. BONTA 55

v. City of Reno, 747 F.3d 733, 747 (9th Cir. 2014) (citing 

Evans v. Shoshone-Bannock Land Use Pol’y Comm’n, 

736 F.3d 1298, 1307 (9th Cir. 2013)).

We note for the district court’s reconsideration that “the 

government suffers no harm from an injunction that merely 

ends unconstitutional practices.” Kelly, 878 F.3d at 718 

(cleaned up).

V

In conclusion, the district court erred by holding that the 

California laws did not burden Second Amendment rights. 

It properly applied intermediate scrutiny to the long gun 

regulation and did not abuse its discretion in finding it likely 

to survive. But it erred in applying intermediate scrutiny to 

the semiautomatic rifle ban. And even if intermediate 

scrutiny applied, the district court abused its discretion in 

finding the ban likely to survive. Finally, the district court 

erred in its application of the irreparable harm factor. Thus, 

as to the long gun regulation, the district court’s order is 

AFFIRMED. And as to the semiautomatic centerfire rifle 

ban, the district court’s order is REVERSED. We 

REMAND the case to the district court for further 

proceedings consistent with this opinion.
56 JONES V. BONTA

APPENDICES
57 JONES V. BONTA

Appendix 1: Pre-Ratification Militia Laws 

Colony Age Citations

Connecticut 16 An Act for Forming, Regulating, and Conducting the 

Military Force of this State (1786), in Acts and Laws of 

the State of Connecticut, in America 144, 144, 150 

(1786). 

Delaware 18 An Act for Establishing a Militia Within this State §§ 2, 

5 (1778); An Act for Establishing a Militia, in The 

Ninth Year of the Independence of the Delaware State 

at 11–13 (1785). 

Georgia 16 Act of 1770, 19 Colonial Records of the State of 

Georgia 137–39 (A. Candler ed. 1911 (pt. 1)); An Act 

for Regulating the Militia of the State, and for 

Repealing the Several Laws Heretofore Made for that 

Purpose (1786). 

Maryland 16 An Act to Regulate the Militia § 2 (1777). 

Massachusetts 16 The General Court of Massachusetts, January Session 

1784 (Laws and Resolves 1784, c. 55, pp. 140, 142); 

An Act for Regulating and Governing the Militia of the 

Commonwealth of Massachusetts, and for Repealing 

All Laws Heretofore Made for that Purpose § 2 (1785), 

in The Acts and Laws, Passed by the General Court of 

Massachusetts 220, 221 (1785). 

New 

Hampshire 

16 An Act for Forming and Regulating the Militia Within 

this State, and for Repealing All the Laws Heretofore 

Made for that Purpose (1786), in The Laws of the State 

of New Hampshire, Together with the Declaration of 

Independence: The Definitive Treaty of Peace between 

the United States of America and His Britannic 

Majesty: The Constitution of New Hampshire, and the 

Constitution of the United States, with Its Proposed 

Amendments 356, 357 (1792). 

New Jersey 16 An Act to Embody, for a Limited Time, One Thousand 

of the Militia of this State, for the Defence of the 

Frontiers Thereof §§ 1–3 (1778), in Acts of the General 

Assembly of the State of New Jersey; An Act for the 

Regulating, Training, and Arraying of the Militia, and 

for Providing More Effectually for the Defence and 

Security of the State § 10 (1781), in Acts of the Fifth 
 JONES V. BONTA 58 

General Assembly of the State of New Jersey, at a 

Session Begun at Trenton on the 24th Day of October, 

1780, and Continued by Adjournments 39, 42 (1781); 

An Act for the Better Regulating the Militia § 1 (1777), 

in Acts of the General Assembly of the State of New 

Jersey, at a Session Begun at Princeton on the 27th Day 

of August 1776, and Continued by Adjournments 26, 

26 (1777). 

New York 16 Act of April 4, 1786 (Laws 1786, c. 25); An Act to 

Regulate the Militia (1786), in 1 Laws of the State of 

New York, Comprising the Constitution, and the Acts 

of the Legislature, Since the Revolution, from the First 

to the Fifteenth Session, Inclusive 227, 227 (1792). 

North 

Carolina 

16 An Act to Establish a Militia in this State § 2, (1777), in

Acts of Assembly of the State of North Carolina 1, 1 

(1777). 

Pennsylvania 18 An Act to Regulate the Militia of the Commonwealth 

of Pennsylvania §§ 2, 4 (1777), in 9 The Statutes at 

Large of Pennsylvania from 1682 to 1801, at 75, 77–80 

(1903); An Act for the Regulation of the Militia of the 

Commonwealth of Pennsylvania § 3 (1780), in 10 The 

Statutes at Large of Pennsylvania from 1682 To 1801, 

at 144, 146 (1904). 

Rhode Island 16 The Act for Better Forming, Regulating and 

Conducting the Military Force of this State (1779), in

At the General Assembly of the Governor and 

Company of the State of Rhode Island, and Providence 

Plantations, Begun and Holden at South Kingstown, 

Within and for the State aforesaid, on the Last Monday 

in October, in the Year of Our Lord One Thousand 

Seven Hundred and Seventy-Nine, and in the Fourth 

Year of Independence 29, 29, 31–32. 

South 

Carolina 

16 An Act for the Regulation of the Militia of this State 

(1782), in Acts Passed at a General Assembly, Begun 

And Holden at Jacksonsburgh, in the State of SouthCarolina 20, 20–24. 

Vermont 16 An Act Regulating the Militia of the State of Vermont 

(1787), in Statutes of the State of Vermont, Passed by 

the Legislature in February and March 1787, at 94, 94 
59 JONES V. BONTA

(1787); An Act, for Regulating and Governing the 

Militia of this State §§ 1, 14 (1797), in 2 The Laws of 

the State of Vermont, Digested and Compiled Including 

the Declaration of Independence, the Constitution of 

the United States, and of this State 122, 122, 131 

(1808). 

Virginia 16 

(1775); 

18 

(1785) 

An Ordinance for Raising and Embodying a Sufficient 

Force, for the Defence and Protection of this Colony 

(1775), in 9 William Waller Hening, The Statutes at 

Large; Being a Collection of All the Laws of Virginia, 

from the First Session of the Legislature, in the Year 

1619, at 9, 16–17 (1821); An Act to Amend and 

Reduce into One Act, the Several Laws for Regulating 

and Disciplining the Militia, and Guarding Against 

Invasions and Insurrections § 3 (1785), in 12 William 

Waller Hening, The Statutes at Large; Being a 

Collection of All the Laws of Virginia, from the First 

Session of the Legislature, in the Year 1619, at 9, 10–

12 (1823). 

 
 JONES V. BONTA 60 

Appendix 2: Post-Ratification Militia Laws

State Age Citations

Connecticut 18 An Act for Forming and Conducting the Military Force of 

this State, Conformable to the Act of Congress, Passed the 

Eighth Day of May, A.D. 1792, Which Is as Follows:—

“An Act More Effectually to Provide for the National 

Defence, by Establishing an Uniform Militia Throughout 

the United States” § 1 (1792), in Acts and Laws of the 

State of Connecticut in America 298, 298–99 (1796). 

Delaware 18 An Act for Establishing the Militia in this State § 1 (1793), 

in 2 Laws of the State of Delaware from the Fourteenth 

Day of October, One Thousand Seven Hundred, to the 

Eighteenth Day of August, One Thousand Seven Hundred 

and Ninety-Seven 1134, 1134 (1797). 

Georgia 18 An Act to Revise and Amend the Militia Law of this State, 

and to Adapt the Same to the Act of the Congress of the 

United States, Passed the Eighth Day of May, One 

Thousand Seven Hundred and Ninety–Two, Entitled “An 

Act More Effectually to Provide for the National Defence, 

by Establishing and Uniform Militia Throughout the 

United States” § 9 (1792), in Digest of the Laws of the 

State of Georgia 348, 350 (1802). 

Maryland 18 An Act to Regulate and Discipline the Militia of this State 

pmbl. (1793), in Laws of Maryland, November Session 

1793 (1793). 

Massachusetts 18 An Act for Regulating and Governing the Militia of the 

Commonwealth of Massachusetts, and for Repealing All 

Laws Heretofore Made for that Purpose; Excepting an Act 

Intitled “An Act for Establishing Rules and Articles for 

Governing the Troops Stationed in Forts and Garrisons, 

Within this Commonwealth, and also the Militia, When 

Called into Actual Service” § 2 (1793), in Acts and Laws, 

Passed by the General Court of Massachusetts, Begun and 

Held at Boston, in the County of Suffolk, on Wednesday 

the Twenty-Ninth Day of May, Anno Domini, 1793, at 

289, 290 (1793). 

New 

Hampshire 

18 An Act for Forming and Regulating the Militia Within 

This State, and for Repealing All the Laws Heretofore 

Made for that Purpose (1792), in The Laws of the State of 
61 JONES V. BONTA

New Hampshire, Passed at a Session of the Honorable 

General-Court, Begun and Holden at Exeter, November 

1972, at 441, 441 (1793). 

New Jersey 18 An Act for Organizing and Training the Militia of this 

State § 4 (1792), in Acts of the Seventeenth General 

Assembly of the State of New Jersey 824, 825 (1792). 

New York 18 An Act to Organize the Militia of this State (1793), in

Laws of the State of New York, Passed at the Sixteenth 

Session of the Legislature 440, 440. 

North 

Carolina 

18 An Act for Establishing a Militia in this State § 1 (1786), 

in The Laws of North-Carolina 18, 18 (amended by An 

Act to Carry into Effect an Act of Congress, Entitled, “An 

Act More Effectually to Provide for the National Defence, 

by Establishing an Uniform Militia Throughout the United 

States,” Also to Amend an Act, Passed at Fayetteville, in 

the Year One Thousand Seven Hundred and Eighty Six, 

Entitled, “An Act for Establishing the Militia in this State” 

(1793)). 

Pennsylvania 18 An Act for the Regulation of the Militia of the 

Commonwealth of Pennsylvania § 1 (1793), in The 

Statutes at Large of Pennsylvania from 1682 to 1801, at 

454, 455–57 (1909). 

Rhode Island 18 * 

South 

Carolina 

18 An Act to Organize the Militia Throughout the State of 

South Carolina, in Conformity with the Act of Congress 

(1794), in Acts and Resolutions of the General Assembly, 

of the State of South Carolina, Passed in April, 1794, at 1, 

2 (1794). 

Vermont 18 An Act, for Regulating and Governing the Militia of this 

State §§ 1, 15 (1797), in 2 The Laws of the State of 

Vermont, Digested and Compiled Including the 

Declaration of Independence, the Constitution of the 

United States, and of this State 122, 122, 131–32 (1808). 

Virginia 18 ** 
 JONES V. BONTA 62 

* The most relevant founding-era law we could find from Rhode Island set the 

militia age at 18 in 1794. An Act to Organize the Militia of this State (1794), in At 

the General Assembly of the Governor and Company of the State of Rhode Island 

And Providence Plantations, Begun and Holden by Adjournment at East 

Greenwich, Within and For the State Aforesaid, on the Last Monday in March, in 

the Year of Our Lord One Thousand Seven Hundred and Ninety-Four, and of 

Independence the Eighteenth 14, 14–15 (1794) (reprinting the federal Militia Act 

and organizing the militia in line with federal law setting the age at 18). Prior laws 

had set the militia age at 16. The Act for Better Forming, Regulating and 

Conducting the Military Force of this State (1779), in At the General Assembly of 

the Governor and Company of the State of Rhode Island, and Providence 

Plantations, Begun and Holden at South Kingstown, Within and For the State 

Aforesaid, on the Last Monday in October, in the Year of Our Lord One Thousand 

Seven Hundred and Seventy-Nine, and in the Fourth Year of Independence 29, 29; 

An Act, Regulating the Militia in this Colony, In the Charter, Granted by His 

Majesty, King Charles II. To the Governor and Company of the English Colony of 

Rhode Island and Providence Plantations, in New England, in America 179, 179 

(1767). 

** Preceding ratification, Virginia required 18-year-olds to join the militia and 

bring their own arms. An Act to Amend and Reduce into One Act, the Several 

Laws for Regulating and Disciplining the Militia, and Guarding Against Invasions 

and Insurrections § 3 (1785), in 12 William Waller Hening, The Statutes at Large; 

Being a Collection of all the Laws of Virginia, from the First Session of the 

Legislature, in the Year 1619, at 9, 10, 12 (1823). This law also created a separate 

company for 18- to 25-year-olds that trained more often than the rest of the 

militia. Id. § 1, in Hening, supra, at 14–15. Following ratification, Virginia’s 

militia law did not mention age or equipment, focusing more on the organization 

by county. An Act for Regulating the Militia of this Commonwealth (1792), in A 

Collection of all Such Acts of the General Assembly of Virginia, of a Public and 

Permanent Nature, as are Now in Force 282, 282–90 (1803). But the act did not 

alter the age requirements set in 1785 and kept the light company of 18- to 25-

year-olds. Like many other statutes at the time, however, Virginia’s law said that it 

was helping to “carry the [federal Militia Act] into effect.” Id. § 1, in A Collection 

of all Such Acts, supra, at 282. And the federal Militia Act required 18-year-olds 

to enlist and bring their own arms. 

 
63 JONES V. BONTA

Appendix 3: Reconstruction Era Laws 

State Citation Statutory text

Alabama 1856 Ala. 

Acts 17 

“That anyone who shall sell or give or lend, to any 

male minor, a bowie knife, or knife or instrument of 

the like kind or description, by whatever name 

called, or air gun or pistol, shall, on conviction be 

fined not less than three hundred, nor more than one 

thousand dollars.” 

Alabama Ala. Code 

§ 4230 

(1887) 

“Any person who sells, gives, or lends, to any boy 

under eighteen years of age, any pistol, or bowie 

knife, or other knife of like kind or description, must 

on conviction, be fined not less than fifty, nor more 

than five hundred dollars.” 

Delaware 16 Del. 

Laws 716 

(1881) 

“That if any person shall carry concealed a deadly 

weapon upon or about his person other than an 

ordinary pocket knife, or shall knowingly sell a 

deadly weapon to a minor other than an ordinary 

pocket knife, such person shall, upon conviction 

thereof, be fined not less than twenty-five nor more 

than two hundred dollars or imprisoned in the 

county jail for not less than ten nor more than thirty 

days, or both at the discretion of the court: Provided, 

that the provisions of this section shall not apply to 

the carrying of the usual weapons by policemen and 

peace officers.” 

Florida 1881 Fla. 

Laws 87 

“[I]t shall be unlawful for any person or persons to 

sell, hire, barter, lend or give to any minor under 

sixteen years of age any pistol, dirk or other arm or 

weapon, other than an ordinary pocket-knife, or a 

gun or rifle used for hunting, without the permission 

of the parent of such minor, or the person having 

charge to such minor, and it shall be unlawful for 

any person or persons to sell, hire, barter, lend or 

give to any person or persons of unsound mind any 

dangerous weapon, other than an ordinary pocketknife. § 2. Any person or persons so offending 

shall be deemed guilty of a misdemeanor, and upon 

conviction thereof shall be fined not less than 
 JONES V. BONTA 64 

twenty nor more than fifty dollars, or imprisoned in 

the county jail not more than three months.” 

Georgia 1876 Ga. 

Laws 112 

“[F]rom and after the passage of this Act it shall not 

be lawful for any person, or persons, knowingly to 

sell, give, lend or furnish any minor or minors any 

pistol, dirk, bowie, knife, or sword cane . . . .” 

Illinois 1881 Ill. 

Laws 73 

“Whoever, not being the father, guardian, or 

employer or the minor herein named, by himself or 

agent, shall sell, give, loan, hire or barter, or shall 

offer to sell, give, loan, hire or barter to any minor 

within this state, any pistol, revolver, derringer, 

bowie knife, dirk or other deadly weapon of like 

character, capable of being secreted upon the 

person, shall be guilty of a misdemeanor, and shall 

be fined in any sum not less than twenty-five dollars 

($25), nor more than two hundred ($200).” 

Indiana 1875 Ind. 

Acts 86 

“Be it enacted by the General Assembly of the State 

of Indiana, That it shall be unlawful for any person 

to sell, barter, or give to any other person, under the 

age of twenty-one years, any pistol, dirk, or bowieknife, slung-shot, knucks, or other deadly weapon 

that can be worn, or carried, concealed upon or 

about the person, or to sell, barter, or give to any 

person, under the age of twenty-one years, any 

cartridges manufactured and designed for use in a 

pistol. § 2. Be it further enacted, That any person 

who shall violate any of the provisions of the 

foregoing section shall be deemed guilty of a 

misdemeanor, and upon conviction thereof, shall be 

fined in any sum not less than five dollars, nor more 

than fifty dollars.” 

Iowa 1884 Iowa 

Acts 86 

“Section 1. That it shall be unlawful for any person 

to knowingly sell, present or give any pistol, 

revolver or toy pistol to any minor. Sec. 2. Any 

violation of this act shall be punishable by a fine of 

not less than twenty-five nor more than one hundred 

dollars or by imprisonment in the county jail of not 

less than ten nor more than thirty days. Sec. 3. This 

act being deemed of immediate importance shall be 
65 JONES V. BONTA

in full force and take effect from and after its 

publication in the Iowa State Leader and Iowa State 

Register, newspapers published at Des Moines, 

Iowa.” 

Kansas 1883 Kan. 

Sess. Laws 

159 

“§ 1. Any person who shall sell, trade, give, loan or 

otherwise furnish any pistol, revolver or toy pistol, 

by which cartridges or caps may be exploded, or 

any dirk, bowie-knife, brass knuckles, slung shot, or 

other dangerous weapons to any minor, or to any 

person of notoriously unsound mind, shall be 

deemed guilty of a misdemeanor, and shall, upon 

conviction before any court of competent 

jurisdiction, be fined not less than five nor more 

than one hundred dollars. § 2. Any minor who 

shall have in his possession any pistol, revolver or 

toy pistol, by which cartridges may be exploded, or 

any dirk, bowie-knife, brass knuckles, slung shot or 

other dangerous weapon, shall be deemed guilty of a 

misdemeanor, and upon conviction before any court 

of competent jurisdiction shall be fined not less than 

one more than ten dollars.” 

Kentucky 1873 Ky. 

Acts 359 

“If any person shall carry concealed a deadly 

weapon upon or about his person other than an 

ordinary pocket knife, or shall sell a deadly weapon 

to a minor other than an ordinary pocket knife, such 

person shall, upon indictment and conviction, be 

fined not less than twenty-five nor more than one 

hundred dollars, and imprisoned in the county jail 

for not less than ten nor more than thirty days, in the 

discretion of the court or jury trying the case.” 

Louisiana 1890 La. 

Acts 39 

“[I]t shall be unlawful, for any person to sell, or 

lease or give through himself or any other person, 

any pistol, dirk, bowie-knife or any other dangerous 

weapon which may be carried concealed to any 

person under the age of twenty-one years.” 

Maryland 1882 Md. 

Laws 656 

“Section 1. Be it enacted by the General Assembly 

of Maryland, That it shall be unlawful for any 

person or persons within the State of Maryland to 

manufacture or sell, barter or give away the 
 JONES V. BONTA 66 

cartridge toy pistol to any one whomsoever. Sec. 2. 

Be it enacted, That it shall be unlawful for any 

person, be he or she licensed dealer or not, to sell, 

barter or give away any firearm whatsoever or other 

deadly weapons, except shotgun, fowling pieces and 

rifles, to any person who is a minor under the age of 

twenty-one years. Any person or persons violating 

any of the provisions of this act shall, on conviction 

thereof, pay a fine of not less than fifty nor more 

than two hundred dollars, together with the cost of 

prosecution, and upon failure to pay said fine and 

cost, be committed to jail and confined therein until 

such fine and costs are paid, or for the period of 

sixty days, whichever shall first occur.” 

Michigan 1883 Mich. 

Pub. Acts 

144 

“That no person shall sell, give, or furnish to any 

child under the age of thirteen years, any cartridge 

of any form or material, or any pistol, gun, or other 

mechanical contrivance, specially arranged or 

designated for the explosion of the same.” 

Mississippi 1878 Miss. 

Laws 175–

76 

“§ 2. It shall not be lawful for any person to sell to 

any minor or person intoxicated, knowing him to be 

a minor or in a state of intoxication, any weapon of 

the kind or description in the first section of this Act 

described [pistols, various knives etc.], or any pistol 

cartridge, and on conviction shall be punished by a 

fine not exceeding two hundred dollars, and if the 

fine and costs are not paid, be condemned to hard 

labor under the direction of the board of supervisors 

or of the court, not exceeding six months. § 3. Any 

father, who shall knowingly suffer or permit any 

minor son under the age of sixteen years to carry 

concealed, in whole or in part, any weapon of the 

kind or description in the first section of this act 

described [pistols, knives, etc.], shall be deemed 

guilty of a misdemeanor, and on conviction, shall be 

fined not less than twenty dollars, nor more than 

two hundred dollars, and if the fine and costs are not 

paid, shall be condemned to hard labor under the 
67 JONES V. BONTA

direction of the board of supervisors or of the 

court.” 

Missouri Mo. Rev. 

Stat. § 1274 

(1879) 

“If any person shall . . . directly or indirectly, sell or 

deliver, loan, or barter to any minor, any such 

weapon [‘any kind of fire-arms, bowie-knife, dirk, 

dagger, slungshot or other deadly weapon’], without 

the consent of the parent or guardian of such minor, 

he shall, upon conviction, be punished by a fine of 

not less than five nor more than one hundred 

dollars, or by imprisonment in the county jail not 

exceeding three months, or by both such fine and 

imprisonment.” 

Nevada 1885 Nev. 

Stat. 51 

“ Every person under the age of twenty-one (21) 

years who shall wear or carry any dirk, pistol, sword 

in case, slung shot, or other dangerous or deadly 

weapon concealed upon his person, shall be deemed 

guilty of a misdemeanor, and shall, upon conviction 

thereof, be fined not less than twenty nor more than 

two hundred ($200) dollars, or by imprisonment in 

the county jail not less than thirty days nor more 

than six months or by both such fine and 

imprisonment.” 

New Jersey 1885 N.J. 

Laws 52, 

ch. 44 § 2 

(1885) 

“That it shall not be lawful to sell, hire or loan to 

any person under the age of fifteen years any gun, 

pistol, toy pistol, or other fire-arms; or for any 

person under the age of fifteen years to purchase, 

barter or exchange any gun, pistol, toy pistol or 

other fire-arms; nor for any person under the age of 

fifteen years to carry, fire or use any gun, pistol, toy 

pistol or other fire-arms, except in the presence of 

his father or guardian, or for the purpose of military 

drill in accordance with the rules of a school.” 

New York N.Y. Penal 

Code ch. 

375 § 1 

(1883) 

“No person under the age of eighteen years shall 

have, carry or have in his possession in any public 

street, highway or place in any of the cities of this 

state, any pistol or other firearms of any kind, and 

no person shall in such cities sell or give any pistol 
 JONES V. BONTA 68 

or other fire-arms to any person under such age. 

§ 2. Any person violating any of the provisions of 

this act shall be guilty of a misdemeanor, and in all 

trials or examinations for said offense the 

appearance of the person so alleged or claimed to be 

under the age of eighteen years shall be evidence to 

the magistrate or jury as to the age of such person.” 

New York N.Y. Penal 

Code § 409 

(1885) 

“A person who manufactures, or causes to be 

manufactured, or sells or keeps for sale, or offers, or 

gives, or disposes of, any instrument or weapon of 

the kind usually known as slung-shot, billy, sand 

club or metal knuckles, or who, in any city in this 

state, without the written consent of a police 

magistrate, sells or gives any pistol or other fire-arm 

to any person under the age of eighteen years is 

guilty of a misdemeanor.” 

North 

Carolina 

1893 N.C. 

Sess. Laws 

468–69 

“Section 1. That it shall be unlawful for any person, 

corporation or firm knowingly to sell or offer for 

sale, give or in any way dispose of to a minor any 

pistol or pistol cartridge, brass knucks, bowie-knife, 

dirk, loaded cane, or sling shot. Sec. 2. That any 

person, corporation or firm violating this act shall be 

guilty of a misdemeanor, and upon conviction for 

each and every offense shall be fined or imprisoned, 

one or both, in the discretion of the court.” 

Pennsylvania 1881 Pa. 

Laws 423 

“Any person who shall knowingly and willfully sell 

or cause to be sold to any person under sixteen years 

of age, any cannon, revolver, pistol or other such 

deadly weapon, or who shall knowingly and 

willfully sell, or cause to be sold, to any such minor, 

any imitation or toy cannon, revolver or pistol so 

made, constructed or arranged as to be capable of 

being loaded with gunpowder or other explosive 

substance, cartridges, shot, slugs or balls and being 

exploded, fired off and discharged, and thereby 

become a dangerous or deadly weapon, or who shall 

knowingly and willfully sell, or cause to be sold to 

any such minor, any cartridge, gunpowder or other 

dangerous and explosive substance, shall in every
69 JONES V. BONTA

such case, be guilty of a misdemeanor, and upon 

conviction thereof shall be sentenced to pay a fine 

not exceeding three hundred dollars.” 

Rhode Island 1883 R.I. 

Pub. Laws 

157 

“No person shall sell to any child under the age of 

fifteen years, without the written consent of a parent 

or guardian of such child, any cartridge or fixed 

ammunition of which any fulminate is a component 

part, or any gun, pistol or other mechanical 

contrivance arranged for the explosion of such 

cartridge or of any fulminate.” 

Tennessee 1856 Tenn. 

Pub. Acts 

92 

“Any person who sells, loans, or gives, to any minor 

a pistol, bowie-knife, dirk, Arkansas tooth-pick, 

hunter’s knife, or like dangerous weapon, except a 

gun for hunting or weapon for defense in traveling, 

is guilty of a misdemeanor, and shall be fined not 

less than twenty-five dollars, and be imprisoned in 

the county jail at the discretion of the court.” 

Texas 1897 Tex. 

Gen. Laws 

221–22 

“That if any person in this State shall knowingly 

sell, give or barter, or cause to be sold, given or 

bartered to any minor, any pistol, dirk, dagger, slung 

shot, sword-cane, spear or knuckles made of any 

metal or hard substance, bowie knife or any other 

knife manufactured or sold for the purpose of 

offense or defense, without the written consent of 

the parent or guardian of such minor, or of someone 

standing in lieu thereof, he shall be punished by fine 

of not less than twenty-five nor more than two 

hundred dollars, or by imprisonment in the county 

jail not less than ten nor more than thirty days, or by 

both such fine and imprisonment. And during the 

time of such imprisonment such offender may be 

put to work upon any public work in the county in 

which such offense is comitted [sic].” 

Washington, 

D.C. 

27 Stat. 

116–17 

(1892), later 

codified in 

“Any person or persons who shall, within the 

District of Columbia, sell, barter, hire, lend, or give 

to any minor under the age of twenty-one years any 

such [‘deadly or dangerous’] weapon as 

hereinbefore described shall, upon conviction 
 JONES V. BONTA 70 

D.C. Code 

§§ 855–57 

thereof, be fined not more than one hundred dollars 

or be imprisoned nor more than three months, or 

both.” 

West 

Virginia 

1882 W. 

Va. Acts 

421–22 

“[I]f any person shall sell or furnish any such 

weapon as hereinbefore mentioned [‘revolver or 

other pistol, dirk, bowie knife, razor, slung shot, 

billy, metallic or other false knuckles, or any other 

dangerous or deadly weapon of like kind or 

character’] to a person whom he knows, or has 

reason from his appearance or otherwise, to believe 

to be under the age of twenty-one years, he shall be 

punished as hereinbefore provided . . . .” 

Wisconsin 1883 Wis. 

Sess. Laws 

290 

“It shall be unlawful for any minor, within this state, 

to go armed with any pistol or revolver, and it shall 

be the duty of all sheriffs, constables, or other public 

police officers, to take from any minor, any pistol or 

revolver, found in his possession. Section 2. It 

shall be unlawful for any dealer in pistols or 

revolvers, or any other person, to sell, loan, or give 

any pistol or revolver to any minor in this state.” 

Wyoming 1890 Wyo. 

Sess. Laws 

1253 

“It shall be unlawful for any person to sell, barter or 

give to any other person under the age of twentyone years any pistol, dirk or bowie knife, slung-shot, 

knucks or other deadly weapon that can be worn or 

carried concealed upon or about the person, or to 

sell, barter or give to any person under the age of 

sixteen years any cartridges manufactured and 

designed for use in a pistol; and any person who 

shall violate any of the provisions of this section 

shall be fined in any sum not more than fifty 

dollars.” 
JONES V. BONTA 71

LEE, Circuit Judge, concurring:

As explained in Judge Nelson’s excellent opinion, 

California’s law effectively banning the sale or transfer of 

semiautomatic firearms to young adults conflicts with the 

text, tradition, and history of the Second Amendment. I join 

the opinion in full but write separately to highlight how 

California’s legal position has no logical stopping point and 

would ultimately erode fundamental rights enumerated in 

our Constitution. Simply put, we cannot jettison our 

constitutional rights, even if the goal behind a law is 

laudable.

California justifies its law by citing statistics showing 

that young adults constitute less than 5% of the population 

but represent more than 15% of homicide and manslaughter 

arrests. The state argues that intermediate scrutiny should 

apply and that it survives that test because the law is a 

“reasonable fit” for the state’s important public safety goal. 

But even assuming intermediate scrutiny applies1, the state’s 

assertion of a “reasonable fit” reduces that requirement to a 

malleable and meaningless limit on the government’s power 

to restrict constitutional rights. As the majority opinion 

capably points out, only 0.25% of young adults commit 

violent crimes. So California limits the rights of 99.75% of 

young adults based on the bad acts of an incredibly small 

sliver of the young adult population. That is not a 

“reasonable fit.”

1 We should apply strict scrutiny under our court’s two-step inquiry 

test, as explained in Judge Nelson’s opinion. But see Rogers v. Grewal, 

140 S. Ct. 1865,1867 (2020) (Thomas, J., dissenting from denial of 

certiorari) (stating that our two-step test “appears to be entirely made up” 

and that “its application has yielded analyses that are entirely 

inconsistent with Heller”).
72 JONES V. BONTA

If we accept the state’s argument, it redefines 

intermediate scrutiny as a rational basis review with a small 

sprinkle of skepticism in Second Amendment cases. And 

that would allow the government to trample over 

constitutional rights just by relying on anecdotal evidence 

and questionable statistics that loosely relate to a worthwhile 

government goal. If California can deny the Second

Amendment right to young adults based on their group’s 

disproportionate involvement in violent crimes, then the 

government can deny that right—as well as other rights—to 

other groups. For example, California arguably has a more 

compelling case if it enacts a similar gun-control law that 

targets males of all ages instead of young adults. Statistics—

and science—show that men almost exclusively commit 

violent crimes. Take mass shootings for instance. Men have 

been involved in 99% of all mass shootings in America since 

1966, according to a database maintained by the Violence 

Project.2

 California can thus theoretically claim that if men 

cannot own firearms, it will eliminate 99% of mass 

shootings.

But as tempting as that solution may sound to some, such 

a law almost certainly would not pass constitutional muster. 

And the reason is obvious: its scope would not be remotely, 

2 The Violence Project Database, https://www.theviolenceproject.o

rg/mass-shooter-database/ (last visited December 15, 2021). Of the 172 

mass shootings since 1966, only four of them involved women. But of 

the four, two of them were assisting their male counterparts in the mass 

shooting. The organization used Congressional Research Service’s 

definition of a mass shooting, i.e., “a multiple homicide incident in which 

four or more victims are murdered with firearms . . . within one event, 

and at least some of the murders occurred in a public location or locations 

in close geographical proximity . . . and the murders are not attributable 

to any other underlying criminal activity or commonplace 

circumstance.”
JONES V. BONTA 73

let alone reasonably, tailored to the praiseworthy goal of 

curbing gun violence.3 Cf. Bd. of Trustees of State Univ. of

New York v. Fox, 492 U.S. 469, 480 (1989) (requiring the 

“governmental goal to be substantial, and the cost to be 

carefully calculated” under intermediate scrutiny). While 

men constitute almost all mass shooters, 99.999999%4 of 

men are not mass shooters. In other words, such a 

hypothetical law would strip all men of their Second 

Amendment rights based on the actions of 0.000001% of the 

male population.

The Supreme Court rejected such tenuous logic in Craig 

v. Boren when it struck down a state law banning the sale of 

some beer to young men, who overwhelmingly are much 

likelier than young women to drive under the influence and 

cause car accident deaths. 429 U.S. 190 (1976). Applying 

intermediate scrutiny for gender-based classifications, the 

3 California has argued that intermediate scrutiny should apply to its 

gun-control laws, which is the same standard used for gender-based 

classifications. See, e.g., Craig v. Boren, 429 U.S. 190 (1976) (applying 

traditional intermediate scrutiny test). During oral argument, counsel for 

the state was non-committal on whether such a hypothetical law would 

survive intermediate scrutiny. If United States v. Virginia established a 

more heightened version of intermediate scrutiny, 518 U.S. 515 (1996) 

(applying an “exceedingly persuasive” burden requirement), then—at 

the very least—that version should apply to an enumerated constitutional 

right “deeply rooted in this Nation’s history and tradition.” McDonald 

v. City of Chicago, 561 U.S. 742, 778 (2010).

4 Since 1966, there have been 170 mass shootings involving men. 

According to the U.S. Census estimate, there were 163,073,046 males as 

of 2020. See https://www.census.gov/quickfacts/fact/table/US/PST045

219#PST045219 (last visited Dec. 15, 2021). That means that only 

0.000001% of the male population committed a mass shooting. And 

even that miniscule percentage is still inflated because it assumes a static 

denominator based on the male population as of 2020 instead of all males 

alive since 1966.
74 JONES V. BONTA

Court acknowledged the statistical disparity but held that the 

state cannot use “a gender line as a classifying device.” Id.

at 201. Even though that state law would have likely saved 

thousands of lives—almost certainly more so than 

California’s law—the Court invalidated it because good 

intentions alone cannot salvage a law.

So, too, here. To accept the state’s argument would 

mean allowing the government to restrict individuals’ 

enumerated constitutional rights based solely on their group 

membership. Unlike other gun-control laws that target a 

person’s specific and individual characteristics or actions 

(e.g., commission of felony, mental illness), California’s law 

strips individuals of their fundamental constitutional rights 

based solely on what other people in their group may have 

committed in the past. That is antithetical to the very nature 

of individual rights and leads us down a dark path. Cf. 

Stanley v. Illinois, 405 U.S. 645, 656 (1972) (the Bill of 

Rights protects the “citizenry from overbearing concern for 

efficiency and efficacy that may characterize praiseworthy 

governmental officials no less, and perhaps more, than 

mediocre ones.”).

We also do not typically limit constitutional rights based 

on the age of adults. Young adults have the same 

constitutional rights as the middle-aged or the elderly—even 

if some of them may not necessarily have the wisdom or 

judgment that age and experience can bring—for the same 

reason that we do not limit fundamental rights based on 

supposed intelligence, maturity, or other characteristics. We 

thus allow 18-year-olds to join the military and lay down 

their lives in defense of our freedoms. We even allow 

minors to take actions that their parents may strongly 

oppose: the Supreme Court has held that parents and the 

government must yield to the wishes of, say, a 14 or 15-year-
JONES V. BONTA 75

old who wants an abortion. Bellotti v. Baird, 428 U.S. 132 

(1976).

None of this is to downplay the tragedy of gun violence. 

Although we must remain impartial as judges, we are 

citizens, too. And whenever we hear of gun violence, our 

stomachs sink and our hearts break for those who have lost 

families or friends in these terrible and tragic events. But 

only a tiny number of people abuse their rights and wield 

guns for unlawful violence. Such cold numbers admittedly 

offer little solace to those who have lost loved ones because 

of gun violence, but it does provide a perspective on whether 

we should restrict a constitutional right for the larger 

population based on a minuscule percentage of the populace 

who abuses that right.

Our Constitution provides a guarantee of our rights and 

freedoms. For the most part, people exercise their rights in 

responsible and productive ways. A tiny percentage, 

however, does not. But we should not sanction restricting a 

constitutional right by solely focusing on the few who abuse 

it.

As judges and lawyers, we revere the First Amendment 

as a core fundamental right. And rightfully so: It has allowed 

Americans to protest unjust wars abroad as well as racism 

and other injustices on our soil, changing this country for the 

better. But in our paeans to the First Amendment, we 

sometimes forget that the right also allows the people to do 

horrendous things. The First Amendment thus empowers 

Nazis to march down Main Street in the predominantly 

Jewish suburb of Skokie. See National Socialist Party v. 

Village of Skokie, 432 U.S. 43, 43–44, (1977). It also allows 

amoral and perhaps immoral businesspeople to invoke the 

majesty of our Constitution to market despicable 

videogames to minors, even though they depict people being 
76 JONES V. BONTA

“dismembered, decapitated, disemboweled, set on fire, and 

chopped into little pieces,” and encourage players to engage 

in “‘ethnic cleansing’ [of] . . . African-Americans, Latinos, 

or Jews” and to “rape a mother and her daughters” in the 

videogames. Brown v. Entertainment Merchants Ass’n, 

564 U.S. 786, 789–804 (2011) (invalidating law restricting 

violent videogames).

But we do not impinge on the First Amendment based on 

the outlier actions of a few who may abuse that right. Nor 

should we with the Second Amendment. Cf. Jackson v. City 

and Cty. of San Francisco, 746 F.3d 953, 960 (9th Cir. 2014) 

(the Second Amendment “inquiry bears strong analogies to 

the Supreme Court’s free-speech caselaw”); Ezell v. City of 

Chicago, 651 F.3d 684, 706–07 (7th Cir. 2011) (“Heller and 

McDonald suggest that First Amendment analogues are 

more appropriate, and . . . have already begun to adapt First 

Amendment doctrine to the Second Amendment context”).

In sum, we cannot allow good intentions to trump an 

enumerated and “fundamental right” deeply rooted in the 

history and tradition of this country. See McDonald,

561 U.S. at 778.
JONES V. BONTA 77

STEIN, District Judge, dissenting in part:

While the majority was correct to apply intermediate 

scrutiny to the long gun regulation enumerated in Senate Bill 

1100 and to affirm the district court’s denial of the 

preliminary injunction, it erred in applying strict scrutiny to 

and reversing the district court with respect to Senate Bill 

61’s semiautomatic centerfire rifle1 regulation. On that 

basis, I concur with the majority’s holding and reasoning 

with respect to the long gun regulation and dissent from its 

holding and reasoning with respect to the semiautomatic rifle 

regulation. Accordingly, this dissent deals solely with the 

majority’s treatment of the semiautomatic rifle regulation.

Although the question of “whether the challenged law 

burdens conduct protected by the Second Amendment” – the 

first step in the proper two-step framework – is debatable, 

the most significant flaw in the majority’s analysis arises 

under the second step, i.e., the appropriate tier of scrutiny. 

See Fyock v. Sunnyvale, 779 F.3d 991, 996 (9th Cir. 2015). 

Neglecting consideration of either the disproportionate 

perpetration of violent crime by, or the relatively immature 

and variable cognitive development among, adults under age 

21, the majority opinion fails to conduct a legal analysis that 

comports with the corpus of precedent within this Circuit 

and elsewhere. Not only in my view is it error for the 

majority to apply strict scrutiny to the semiautomatic rifle 

regulation, but its alternative holding that the regulation fails 

under intermediate scrutiny suffers from a faulty assessment 

of whether the regulation is a “reasonable fit” for 

1 I generally refer to semiautomatic centerfire rifles as 

“semiautomatic rifles” for ease of reference, as do my colleagues in the 

majority.
78 JONES V. BONTA

California’s public policy objectives. I shall attempt to 

elucidate these conclusions.

I.

In 2018, California legislators amended California Penal 

Code Section 27510, which regulates the sale of firearms to 

persons aged 18 through 20.2 The amendment, Senate Bill 

1100 (“the long gun regulation”), introduced age limitations 

on the sale or transfer of long guns. 2017 California Senate 

Bill No. 1100, California 2017–2018 Regular Session. 

Specifically, the long gun regulation prohibits federally 

licensed firearms dealers (“FFLs”) from selling or 

transferring long guns to young adults. However, the long 

gun regulation contains exceptions, removing the 

regulation’s applicability to young adults who have a 

hunting license; are peace officers, active federal officers 

and law enforcement officers; and are active or retired 

members of the military. Id.

Then, on April 27, 2019, a 19-year-old opened fire with 

a semiautomatic rifle, a subset of long gun, killing one and 

injuring three others at a synagogue in Poway, California. 

John Wilkens, Kristina Davis, and Teri Figueroa, One 

Dead, Three Injured in Poway Synagogue Shooting, SAN 

DIEGO UNION-TRIB. (April 27, 2019), https://www.sandie

gouniontribune.com/news/public-safety/story/2019-04-27/

reports-of-several-people-shot-at-poway-synagogue; Cheri

Mossburg, Poway Synagogue Shooter Sentenced to 

Second Life Sentence, CNN (Dec. 28, 2021), https://www.

cnn.com/2021/12/28/us/poway-synagogue-shooter-senten

2 I refer to individuals who are 18 or older but not yet 21 years old

as “young adults” for ease of reference, as do my colleagues in the 

majority.
JONES V. BONTA 79

ced/index.html. In response, California’s legislature passed 

Senate Bill 61 (“the semiautomatic rifle regulation”), which 

amended Section 27510 further to remove the hunting 

license exception for young adults to purchase 

semiautomatic centerfire rifles. Senate Bill No. 61, 

California 2019–2020 Regular Session.

Aside from the explicit exceptions contained in section 

27510, California has preserved several avenues for young 

adults to possess and use long guns, including semiautomatic 

rifles. Contrary to plaintiffs’ contentions, section 27510 does 

not regulate possession or use; rather, it merely regulates the 

purchase of firearms through FFLs. California emphasizes 

that, as long as young adults follow otherwise applicable 

California laws, they may use long guns, including 

semiautomatic rifles for self-defense in the home or 

elsewhere and for a number of other lawful purposes.

Indeed, the challenged regulations permit acquisition 

and loan of long guns, including semiautomatic rifles, in 

several ways. For instance, young adults may receive long 

guns from immediate family “by gift, bequest, intestate 

succession, or other means from one individual to 

another[.]” Cal. Penal Code §§ 16720, 27505, 27585. Young 

adults may also be loaned firearms, including handguns, 

from a wide range of people for varying periods of time, see 

Cal. Penal Code §§ 27880, 27885, or for the entirety of a 

hunting season if they are licensed hunters. Cal. Penal Code 

§ 27950. California provides examples of other forms of 

acquisition that are untouched by the challenged regulations 

in its briefings. In sum, neither of the regulations we consider 

here are categorical bans on young adults’ possession or 

acquisition of long guns, including semiautomatic rifles.
80 JONES V. BONTA

II.

“[I]ndividual self-defense is ‘the central component’ of 

the Second Amendment right,” and the need for self-defense 

“‘is most acute’ in the home.” McDonald v. City of Chicago, 

561 U.S. 742, 767 (2010) (quoting District of Columbia v. 

Heller, 554 U.S. 570, 599 (2008)). However, the Second 

Amendment does not grant the right to “carry any weapon 

whatsoever in any manner whatsoever and for whatever 

purpose.” Heller, 554 U.S. at 626. In the same vein, it is clear 

that “the right secured by the Second Amendment is not 

unlimited.” Id. In Heller, the Supreme Court struck down 

Washington, D.C.’s complete ban on the possession or use 

of handguns, holding that a categorical prohibition of use in 

the home of the most-favored type of firearm, the handgun,

was inconsistent with the Second Amendment. Id. at 635. 

However, the Supreme Court made clear that “nothing . . .

should be taken to cast doubt on” a variety of laws affecting 

the right to bear arms, including “laws imposing conditions 

and qualifications on the commercial sale of arms.” Id.

at 626–27. The Court also clarified that its list of 

“presumptively lawful regulatory measures . . . does not 

purport to be exhaustive.” Id. at 627 n. 26.

To discern the finite limits on the Second Amendment 

right, this Circuit has developed a two-step framework. 

Young v. Hawaii, 992 F.3d 765, 783 (9th Cir. 2021). First, 

we must ask “whether the challenged law burdens conduct 

protected by the Second Amendment.” Fyock, 779 F.3d 

at 996. To answer this question, we must assess “historical 

understanding of the scope of the right.” Silvester v. Harris, 

843 F.3d 816, 821 (9th Cir. 2016). If the restriction “can be 

traced to the founding era” or is the “subject of longstanding, 

accepted regulation,” it may be upheld without proceeding 
JONES V. BONTA 81

to the second step of the framework. Id.; Fyock, 779 F.3d 

at 997.

If this question is answered affirmatively, the analysis 

proceeds to the second step, which entails selecting the 

appropriate tier of scrutiny. To so determine, we must assess 

“how close the law comes to the core of the Second 

Amendment right,” and “the severity of the law’s burden on 

that right.” Mai v. United States, 952 F.3d 1106, 1115 (9th 

Cir. 2020). If a law “implicates the core of the Second 

Amendment right and severely burdens that right,” we must 

apply strict scrutiny; otherwise, we apply intermediate 

scrutiny. Silvester, 843 F.3d at 821. The test for intermediate 

scrutiny is as follows: 1) the government must have a 

“significant, substantial, or important” objective, and 

2) there must be “a reasonable fit between the challenged 

regulation and the asserted objective.” United States v. 

Chovan, 735 F.3d 1127, 1139 (9th Cir. 2013).

A.

First, we must “determine whether the right [of young 

adults to purchase or receive transfer of semiautomatic rifles 

from FFLs] is protected by the Second Amendment.” Young, 

992 F.3d at 784. As the majority recognizes, “California 

regulates young adults’ commerce in firearms, not their 

possession.” Majority at 19. It is from this baseline that the 

majority conducts its historical analysis, considering “the 

history of young adults’ right to keep and bear arms 

generally.” Id. And, from there, its review of the historical 

record produces the conclusion that “the Second 

Amendment protects young adults’ right to keep and bear 

arms.” Id. at 29.

The majority contends that, by restricting young adults’ 

commerce through the semiautomatic rifle regulation’s
82 JONES V. BONTA

prohibition on sales to young adults by FFLs, young adults 

cannot “obtain arms,” and thus, their “right to keep and bear 

arms [is] meaningless.” Majority at 20. However, by its 

terms, the semiautomatic rifle regulation is not a ban on 

young adults’ ability to obtain semiautomatic rifles. This is 

true even though it prohibits FFLs from selling or 

transferring semiautomatic rifles to young adults.3 As the 

district court reasoned, “[t]he only complete ban is for any 

FFL to sell, deliver, or supply a handgun to a [y]oung 

[a]dult.” Jones v. Becerra, 498 F. Supp. 3d 1317, 1328 (S.D. 

Cal. 2020). The semiautomatic rifle regulation allows for 

family gifts and a variety of other modes of possession 

through acquisition or loan; for example, the regulation 

permits a parent to purchase a semiautomatic rifle and 

transfer it to their child under age 21 through gift. See id. It 

also allows “individuals between the ages of 18 and 20 . . .

[to] possess semi-automatic rifles if they are members of law 

3 The majority insists that the Second Amendment right includes the 

ability to purchase firearms. In doing so, it cites to only two precedents, 

this Court’s decisions in Bauer v. Becerra, 858 F.3d 1216 (9th Cir. 

2017), and Teixeira v. County of Alameda, 873 F.3d 670 (9th Cir. 2017). 

To be clear, neither of these precedents stands for the conclusion that the 

right to bear arms includes the right to purchase them. In Bauer, in 

response to the plaintiff’s argument that the core Second Amendment 

right included a right to purchase firearms, this Court set aside the 

argument by stating, “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.” 858 F.3d at 1222. Moreover, the 

semiautomatic rifle regulation we consider here is a prohibition on the 

sale by FFLs to young adults. This Court in Teixeira held that “the 

Second Amendment does not independently protect a proprietor’s right 

to sell firearms.” 873 F.3d at 690. I do not contest that the prohibition on 

FFLs selling semiautomatic rifles to young adults is directly tied to 

young adults’ ability to purchase semiautomatic rifles. However, while 

the Second Amendment right surely protects the right to possess and use 

firearms, the majority’s inferential leap to the assumption that it protects 

the right to purchase firearms goes too far.
JONES V. BONTA 83

enforcement, active duty members of the Armed Forces . . .

or active reserve components of the United States.” Id. To 

be sure, the semiautomatic rifle regulation does indeed 

restrict the ability of young adults to purchase semiautomatic 

rifles from FFLs. But to classify it as a ban without 

qualification is a patent misreading of the statutory text.

Given the statute’s several qualifications and 

exemptions, I disagree with the majority’s conclusion that 

the semiautomatic rifle regulation constitutes a ban on 

commerce and conclude instead that the regulation is 

“consistent with a longstanding tradition of targeting select 

groups’ ability to access and to use arms for the sake of 

public safety.” Nat’l Rifle Ass’n of Am., Inc. v. Bureau of 

Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185, 

203 (5th Cir. 2012) (“NRA”), cert. denied, 571 U.S. 1196 

(2014). California highlights the Fifth Circuit’s review of 

founding-era attitudes in NRA, pointing out that the age of 

majority at common law was 21 years old. Id. at 201; see 

also Infancy, BLACK’S LAW DICTIONARY (10th ed. 2014) 

(“Every person is, at the common law, considered an infant, 

or minor, until he has reached the age of twenty-one years 

. . . .”) (quoting Lewis Hochheimer, A Treatise on Law 

Relating to the Custody of Infants 1 (2d ed. 1891)). 

Moreover, the historical record is replete with laws 

restricting the possession by and sale of firearms to minors. 

See Possession by, Use of, and Sales to Minors and Others 

Deemed Irresponsible, Repository of Historical Gun Laws, 

DUKE CTR. FOR FIREARMS LAW (last viewed May 4, 2022), 

https://tinyurl.com/ycknv84y (describing 92 historical 

restrictions on minor firearm possession and commerce in 

45 states).

I also take issue with the majority’s repeated reference to 

the historic age of militia service—around 16 years—to 
84 JONES V. BONTA

support the notion that young adults have a Second 

Amendment right to bear arms. Majority at 23. Despite its 

insistence that “[t]he right is not conditioned on militia 

service,” id. at 31 (emphasis removed), the majority makes 

the following syllogism: “[t]he Second Amendment refers to 

the militia, and young adults had to be in the militia and bring 

their own firearms. This reference implies at least that young 

adults needed to have their own firearms.” Id. at 30. In 

drawing this conclusion, the majority makes the same 

mistake as plaintiffs in confusing “the age for military 

service with the separate question of the age at which society 

can draw a line at the sale of firearms to minors.” Regardless, 

the district court reminds us that even “[m]ilitias were well 

regulated by each state in the Founding Era.” Jones, 498 F. 

Supp. 3d at 1327. For example, “members of the militia were 

required to meet regularly for weapons inspection and 

registration, and members who did not show up with the 

required equipment could be fined.” Id. The lower court was 

correct to deduce that the regulations on militia duty 

“demonstrate that as far back as the Founding Era, firearm 

regulations were considered necessary and an individual’s 

right to firearm possession came with obligations to ensure 

public safety.” Id. If young adults were historically members 

of the militia, then these regulations would have applied 

equally to them.

Nevertheless, much of this back and forth is of limited 

value. In reviewing historical sources, “we are likely to fall 

short in some way.” Young, 992 F.3d at 785. Indeed, “the 

courts of appeals have spilled considerable ink in trying to 

navigate” the historical parameters of the Second 

Amendment as set forth in Heller. Pena v. Lindley, 898 F.3d 

969, 976 (9th Cir. 2018). One must acknowledge that 

historical review in line with an originalist understanding of 

constitutional rights tends to produce different 
JONES V. BONTA 85

interpretations and conclusions depending on the level of

generality from which the analysis begins. See generally 

Peter J. Smith, Originalism and Level of Generality, 51 GA.

L. REV. 485 (2017). Moreover, “the historical record [is] 

mixed” and as jurists we must be careful not to “pick[] [our] 

friends and come to a fore-ordained conclusion” on the 

scope of the Second Amendment. See Young, 992 F.3d at 

822–23. Therefore, I will “follow [the] well-trodden and 

‘judicious course’” and “assume without deciding” that the 

semiautomatic rifle regulation burdens conduct protected by 

the Second Amendment. See Pena, 898 F.3d at 976. I now 

turn to the majority opinion’s flawed determination of the 

appropriate tier of scrutiny to be applied to the 

semiautomatic rifle regulation.

B.

It bears repeating that “we are guided by a longstanding 

distinction between laws that regulate the manner in which 

individuals may exercise their Second Amendment right, 

and laws that amount to a total prohibition of that right.” 

Pena, 898 F.3d at 977. On one hand, “[s]trict scrutiny applies 

only to laws that both implicate a core Second Amendment 

right and place a substantial burden on that right.” Duncan 

v. Bonta, 19 F.4th 1087, 1103 (9th Cir. 2021) (quoting Mai, 

952 F.3d at 1115). For instance, a “total prohibition” or a law 

that “bar[s] firearm possession completely” would likely 

merit strict scrutiny. Pena, 898 F.3d at 977; Silvester, 843 

F.3d at 827. On the other hand, “[i]ntermediate scrutiny is 

appropriate if the regulation at issue does not implicate the 

core Second Amendment right or does not place a 

substantial burden on that right.” Fyock, 779 F.3d at 998–99. 

Indeed, there is “near unanimity in the post-Heller case law 

that when considering regulations that fall within the scope 
86 JONES V. BONTA

of the Second Amendment, intermediate scrutiny is 

appropriate.” Silvester, 843 F.3d at 823.

The first question is whether the challenged law impacts 

the “core” Second Amendment right to defend oneself in the 

home. See Heller, 554 U.S. at 629; Fyock, 779 F.3d at 999. 

The majority urges that the semiautomatic rifle regulation 

does indeed implicate that “core” Second Amendment right. 

Neither plaintiffs nor the majority cite to any sources 

regarding the utility, practicality, or effectiveness of 

semiautomatic rifles for home self-defense. Nevertheless, 

regardless of whether the regulation does or does not 

implicate the “core of the Second Amendment,” strict 

scrutiny is inapposite because the regulation does not impose 

a “substantial burden.” See Fyock, 779 F.3d at 999.

The majority disagrees on this point, contending that 

strict scrutiny applies to the semiautomatic rifle regulation 

because it lacks the hunting license exception encompassed 

by the long gun regulation. Majority at 37. In the majority’s 

view, the law here amounts to a near-total prohibition on 

young adults’ ability to obtain semiautomatic rifles, and 

given that this Court has “never applied intermediate 

scrutiny to a ban like this,” strict scrutiny must apply. 

Majority at 39.

However, as previously limned, the semiautomatic rifle 

regulation is far afield from being a total or even near-total 

prohibition on the right to defend oneself in the home. See 

infra Part II.A. The district court and California have 

repeatedly highlighted the numerous exemptions for FFL 

transfers and non-FFL avenues still available to young adults 

to acquire firearms, including semiautomatic rifles. See 

Jones, 498 F. Supp. 3d at 1328. Furthermore, the regulation 

“leaves open alternative channels for self-defense in the 

home,” primarily by allowing young adults with hunting 
JONES V. BONTA 87

licenses to purchase other types of long gun from FFLS. 

Jackson v. City and County of San Francisco, 746 F.3d 953, 

964 (9th Cir. 2014).

The majority counters that allowing intrafamily transfers 

while prohibiting purchases “makes young adults’ Second 

Amendment rights conditional on the rights of others.”

Majority at 41. While the regulation certainly places 

conditions on the rights of young adults to own 

semiautomatic centerfire rifles, laws that place conditions on 

or regulate the manner in which persons may possess 

firearms are commonly upheld. See, e.g., Silvester, 843 F.3d 

at 827–29; Pena, 898 F.3d at 978, 986. We have no reason 

to doubt that the vast majority of young adults aged 18 to 21 

can secure semiautomatic centerfire rifles through 

intrafamily transfer. Indeed, the challenge here is a facial 

one, and the likely widespread availability of intrafamily 

transfers to California’s young adults suggests that the 

burden here is not a “severe” one for the purposes of 

selecting a tier of scrutiny.

And, importantly, “unlike regulations that amount to 

functional prohibitions on the sale of arms, this [regulation] 

is of a temporary duration as to potential purchasers—it 

evaporates once the would-be purchaser turns 21.”

Hirschfeld v. Bureau of Alcohol, Firearms, Tobacco & 

Explosives, 5 F.4th 407, 462 (4th Cir. 2021) (Wynn, J., 

dissenting), vacated as moot, 14 F.4th 322 (4th Cir. 2021). 

“The narrow ambit” of a regulation such as the one we are 

considering “militates against strict scrutiny.” NRA, 

700 F.3d at 205.

Finally, plaintiffs’ classification of the semiautomatic 

rifle regulation as a complete prohibition on a class of 

firearm also suffers from logical frailties. In Worman v. 

Healey, which also concerned a regulation restricting the 
88 JONES V. BONTA

sale and transfer of “semiautomatic assault weapons,” 

plaintiffs made the same argument. 922 F.3d 26, 32 n.2 (1st 

Cir. 2019). The First Circuit rejected this argument, 

reasoning thus: “the plaintiff’s ‘absolute prohibition’ 

argument is circular: essentially, it amounts to a suggestion 

that whatever group of weapons a regulation prohibits may 

be deemed a ‘class.’ By this logic . . . virtually any regulation 

could be considered an ‘absolute prohibition’ of a class of 

weapons.” Id.

Although Heller rejected the notion “that it is 

permissible to ban the possession of handguns so long as the 

possession of other firearms (i.e., long guns) is allowed,” 

Heller, 554 U.S. at 629, Worman points out that the 

significance of the handgun as a category of guns is critical 

because it is “the quintessential self-defense weapon” and 

“the most popular weapon chosen by Americans for selfdefense in the home.” Id.; see Worman, 922 F.3d at 36. This 

rationale cannot extend to semiautomatic rifles, for they are 

not handguns and therefore neither the quintessential nor the 

most popular self-defense weapons; nor is the regulation 

here anywhere near as sweeping as the handgun ban in 

Heller.

4 The majority nevertheless contends that strict 

4 The particular difference in scope between the District of 

Columbia’s categorical firearm ban in Heller and the semiautomatic rifle 

regulation here is worth subjecting to explicit comparison. D.C. made it 

illegal to carry an unregistered handgun and simultaneously prohibited 

the registration of handguns; it also required residents who owned 

handguns lawfully to keep them unloaded and dissembled or secured by 

a trigger lock in the home, essentially rendering them inoperable in the 

event of an unforeseen emergency. See Heller, 554 U.S. at 574–76. Here, 

by contrast, the semiautomatic rifle regulation prohibits FFLs from 

selling or transferring semiautomatic rifles to young adults who do not 

fall within one of its exceptions for law enforcement or military 

members. The law in Heller “totally ban[ned] handgun possession in the 

home.” Id. at 628. The challenged law here does no such thing. As the 
JONES V. BONTA 89

scrutiny is appropriate because, in its view, only three 

classes of gun are suitable for self-defense in the home: 

handguns, semiautomatic centerfire rifles, and shotguns. 

Majority at 39–40. Because the sale of handguns to young 

adults is banned by another law, Cal. Penal Code § 27505, 

18 U.S.C. § 922(b)(1), and the law here places significant 

restrictions on the sale of semiautomatic centerfire rifles to 

young adults, the only suitable category of firearms for selfdefense available to young adults is the shotgun. According 

to the majority, “this law takes away one of the two [other 

than the handgun] remaining practical options for selfdefense in the home,” and that it is thus “a severe burden.” 

Majority at 40–41.

While I do not dispute that the semiautomatic rifle 

regulation places burdens on young adults who wish to 

purchase or otherwise receive semiautomatic centerfire 

rifles from FFLs, I do not find that it is a “severe burden” on 

young adults’ Second Amendment rights. Even if the 

regulation means most young adults are “unable to purchase 

a subset of semiautomatic weapons” from FFLs, this “does 

not significantly burden the right to self-defense in the 

home.” Pena, 898 F.3d at 978. As the majority 

acknowledges, young adults still have access to reasonable 

alternatives for self-defense in the home, including the 

shotgun and other forms of long gun. Moreover, the timelimited nature of the regulation and the various avenues it 

leaves open to young adult possession of semiautomatic 

centerfire rifles mitigate its severity. Because the regulation 

does not remove young adults’ ability to acquire other forms 

Fifth Circuit noted, “unlike the D.C. ban in Heller, this ban does not 

disarm an entire community, but instead prohibits commercial 

[semiautomatic rifle] sales to 18-to-20-year-olds—a discrete category.” 

NRA, 700 F.3d at 205.
90 JONES V. BONTA

of long gun, and simultaneously maintains several methods 

for acquisition and use of semiautomatic rifles, the 

application of strict scrutiny is inappropriate. The more 

appropriate tier of scrutiny to be applied here is intermediate 

scrutiny.

C.

Now, I shall assess whether the semiautomatic rifle 

regulation survives intermediate scrutiny by analyzing the 

majority’s determination that the regulation does not. Then, 

I shall apply intermediate scrutiny in a manner that, I believe, 

comports more properly with this Circuit’s precedents.

Intermediate scrutiny has two requirements: first, that 

“the government’s stated objective . . . be significant, 

substantial, or important”; and second, “a reasonable fit 

between the challenged regulation and the asserted 

objective.” Chovan, 735 F.3d at 1139. California is “not 

required to show that [the regulation] is the least restrictive 

means of achieving its interest,” but rather, that the 

regulation “promotes a ‘substantial government interest that 

would be achieved less effectively absent regulation.’” 

Fyock, 779 F.3d at 1000 (quoting Colacurcio v. City of Kent, 

163 F.3d 545, 553 (9th Cir. 1998)).

1.

California’s objective of promoting public safety and 

reducing gun violence is a significant, important one. I 

disagree with the majority’s conclusion that the law is not a 

“reasonable fit” with this objective.

The majority refers to the origins of the Second

Amendment intermediate scrutiny test within the First 

Amendment and chides the judges of this Circuit for 
JONES V. BONTA 91

neglecting “one-half of the inquiry.” Majority at 46. In the 

First Amendment context, intermediate scrutiny “does not 

mean that a time, place, or manner regulation may burden 

substantially more speech than is necessary to further the 

government’s legitimate interests.” Ward v. Rock Against 

Racism, 491 U.S. 781, 789 (1989). According to the 

majority, “[t]his is the essence of the intermediate scrutiny 

test: the regulation must . . . accomplish[] something . . .

[and] not burden far more speech than is necessary.” 

Majority at 46. And, in my colleagues’ view, “[w]hen we 

transplanted intermediate scrutiny from the First 

Amendment to the Second, . . . we did not bring the doesnot-burden-conduct-more-than-necessary part.” Id. at 46–

47. In so doing, the majority contends, “we neglect to 

consider fit at all.” Id. at 47.

Although Second Amendment intermediate scrutiny is 

no doubt drawn from the First Amendment context, the 

majority’s analysis makes no distinction between the cluster 

of rights protected by the First Amendment and those 

protected by the Second. It goes without saying that the First 

Amendment, in protecting some of our most cherished civil 

and political rights, demands exacting scrutiny of 

government regulations placing limits on free speech. The 

right to bear arms, by contrast, is a core right whose direct 

exercise can lead to bodily injury or death. Although 

intermediate scrutiny in the Second Amendment context is 

no less exacting than that of the First, the distinction between 

the rights protected by the First Amendment and the Second 

is stark. It is not an “after-the-fact rationalization”, Majority 

at 48, to conclude that the reasonableness inquiries under the 

First and Second Amendments are distinctive due to the 

different rights each protects, and that Second Amendment 

reasonableness must more often account for public safety 

concerns. And even despite these substantive differences in 
92 JONES V. BONTA

the rights protected under the First and Second 

Amendments, speech “directed to inciting or producing 

imminent lawless action” is one of the very few categories 

of expression not protected by the First Amendment. See 

Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). Perhaps 

this Court’s precedents were purposeful, rather than 

neglectful, in tailoring a “reasonable fit” analysis that allows 

more room for consideration of the heightened physical 

public safety considerations in the Second Amendment 

context. “No one really knows what the right answer is with 

respect to the regulation of firearms,” so courts should not 

“[d]isenfranchis[e] the American people on this life and 

death subject.” Kolbe v. Hogan, 849 F.3d 114, 150 (4th Cir. 

2017) (Wilkinson, J., concurring).

The majority’s conflation of First Amendment 

intermediate scrutiny with Second Amendment intermediate 

scrutiny is not the only instance in which the majority makes 

inapt comparisons with other forms of constitutional 

intermediate scrutiny. Like the two judges forming the 

majority in Hirschfeld’s divided panel, the majority here 

draws a curious comparison between the semiautomatic rifle 

regulation and the challenged law in Craig v. Boren, 

429 U.S. 190 (1976). Relying on statistical comparisons, the 

majority concludes that the law banning the sale of lowalcohol beer to men considered in Craig failed to pass 

intermediate scrutiny even though it was “a much better fit” 

than the law we consider here. Majority at 49. The majority’s 

argument is as follows: because only 2% of young men were 

arrested for drunk driving, a law regulating 100% of them 

was not a “reasonable fit” for the government objective of 

reducing traffic fatalities in Craig. Id. at 49. Compared with 

the law here, where “only 0.25% of young adults are arrested 

for violent crimes,” a law regulating 100% of young adults 
JONES V. BONTA 93

who don’t qualify for any exemptions is also “unlikely to be 

a reasonable fit for California’s objectives.” Id. at 50.

There are multiple problems with comparing the law in 

Craig with the law at issue here. First, the majority here 

attempts to “calcify the flexible world of intermediate 

scrutiny into a rigid statistical framework.” Hirschfeld, 

5 F.4th at 479 (Wynn, J., dissenting) (internal quotation 

marks omitted). Our precedents counsel against such an 

approach: “[w]hen considering California's justifications for 

the statute, we do not impose an ‘unnecessarily rigid burden 

of proof,’ and we allow California to rely on any material 

‘reasonably believed to be relevant’ to substantiate its 

interests in gun safety and crime prevention.” Pena, 898 F.3d 

at 979 (quoting Mahoney v. Sessions, 871 F.3d 873, 881 (9th 

Cir. 2017)). Just as we are not colonial historians, we are not 

statisticians, and California “must be allowed a reasonable 

opportunity to experiment with solutions to admittedly 

serious problems.” Id. at 980 (quoting City of Renton v. 

Playtime Theatres, Inc., 475 U.S. 41, 52 (1986)).

A second major problem with the comparison to Craig 

is, again, inherent to the majority’s conflation of Second 

Amendment intermediate scrutiny with Fourteenth 

Amendment intermediate scrutiny. Under the Fourteenth 

Amendment, classifications based on gender are subjected 

to heightened, intermediate scrutiny requiring an 

“exceedingly persuasive justification” because “our Nation 

has had a long and unfortunate history of sex 

discrimination.” United States v. Virginia, 518 U.S. 515, 531 

(1996) (quoting Frontiero v. Richardson, 411 U.S. 677, 684 

(1973)). In contrast, a state “may discriminate on the basis 

of age without offending the Fourteenth Amendment if the 

age classification in question is rationally related to a 

legitimate state interest.” Kimel v. Florida Bd. of Regents, 
94 JONES V. BONTA

528 U.S. 62, 83 (2000). Indeed, it is well-established under 

the Fourteenth Amendment that “age classification is 

presumptively rational.” Id. at 84. Therefore, the majority’s 

comparison of the gender classification in Craig with the 

age-restrictive semiautomatic rifle regulation here is the 

proverbial comparison of apples to oranges.

Beyond its inappropriate reliance on Craig, the majority 

claims that the semiautomatic rifle regulation is not a 

“reasonable fit” because it contains “only limited 

exceptions” and “no individualized assessment,” i.e. appeals 

or hearing process for young adults deemed ineligible to 

purchase semiautomatic rifles from FFLs. Majority at 51.

Ultimately, these factors convince the majority that it need 

not defer to the California legislature’s enactment of the 

regulation. This Court has made clear, however, that “[w]e 

ask only whether the evidence ‘fairly supports’ [the 

California legislature’s] ‘reasonable’ conclusions.” Mai, 

952 F.3d at 1118 (quoting Pena, 898 F.3d at 979–80). 

“When empirical evidence is incomplete, we ‘must accord 

substantial deference to [California’s] predictive 

judgments.’” Id. (quoting Turner Broad Sys. v. FCC, 

512 U.S. 662, 665 (1994)).5 Although the majority faults the 

5 The majority highlights the fact that in Turner, the Supreme Court 

did not defer to the Government’s arguments that its statutes regulating 

aspects of broadcast television were a “reasonable fit” for its objectives 

under First Amendment intermediate scrutiny. Majority at 52; see 

Turner, 512 U.S. at 666–68. Like many of the majority’s comparisons 

with Ninth Circuit precedent and Supreme Court caselaw, the 

comparison with Turner is faulty. Turner concerned the district court’s 

grant of summary judgment in favor of the Government, and the 

Supreme Court remanded because genuine issues of material fact

remained. Id. at 668. The Supreme Court pointed out that the record was 

devoid of a great deal of evidence that could establish that no genuine 

issue of material fact existed, and therefore, remand was appropriate. 

Here, by contrast, California points to numerous statistics to substantiate 
JONES V. BONTA 95

courts of this Circuit for failing to do a proper “reasonable 

fit” analysis in past decisions, it is clear that the majority is 

holding California to an evidentiary standard that is not 

required under Second Amendment intermediate scrutiny.

2.

Having concluded that the majority misapplies 

intermediate scrutiny to the semiautomatic rifle regulation, I 

will now apply that test in a manner that, I believe, hews 

more closely to this Court’s jurisprudence. Having already 

determined that California’s objectives of enhancing public 

safety and reducing gun violence are important, the 

remaining question is whether the law is a “reasonable fit” 

for those objectives. In answering this question, I intend to 

focus on evidence California provides and that the majority 

makes little to no mention of at all. The facts surrounding 

young adults’ disproportionate commission of violent gun 

crime; the increasing understanding of the relative 

immaturity of young adults; and the exemptions and 

numerous channels to possess and use semiautomatic rifles 

open to young adults are sufficient to demonstrate that the 

regulation is indeed a “reasonable fit.”

To start, California highlights the fact that young adults 

are disproportionately more likely to commit violent crimes 

in general and gun violence specifically than older adults. 

While 18 to 20-year-olds comprise less than 5% of the U.S. 

population, they account for more than 15% of reported 

its important objective specifically surrounding the fact that young adults

disproportionately commit violent crime and are still developmentally 

maturing. Unlike in Turner, where the Supreme Court highlighted the 

lack of evidence supporting Congress’s enactments, the majority gives 

here short shrift to the ample evidence California provides in support of 

its objectives.
96 JONES V. BONTA

homicide and manslaughter arrests. In California alone, 

18 to 19-year-olds account for roughly 12% of the state’s 

homicide arrests. Id. According to the gun violence 

prevention non-profit organization, Everytown for Gun 

Safety, 18 to 20-year-olds commit gun homicides at a rate 

three times higher than adults above the age of 21. 

Everytown Research & Policy, EVERYTOWN FOR GUN 

SAFETY, https://everytownresearch.org/stat/eighteen-to-20-

year-olds-commit-gun-homicides-at-a-rate-triple-the-rateof-those-21-and-years-older/ (2018). Additional studies 

show that at least one in eight victims of mass shootings 

from 1992 to 2018 were killed by an 18 to 20-year-old; 

additionally, assault rifles, including semiautomatic rifles, 

were responsible for approximately 45% of fatalities and 

62% of overall victims of mass shootings. Joshua D. Brown 

and Amie J. Goodin, Mass Casualty Shooting Venues, Types 

of Firearms, and Age of Perpetrators in the United States, 

1982–2018, 108 AM. J. PUB. HEALTH 1385, 1386 (2018).

Indeed, California had heightened motivation to enact 

the semiautomatic rifle regulation after a 19-year-old 

committed a mass shooting at a synagogue in Poway, a 

suburb of San Diego. By the end of July 2019, there had been 

32 shootings that year in California in which four or more 

people were injured or killed. California also provides 

evidence that the vast majority of firearms used in mass 

shootings are purchased legally from FFLs. The state 

legislature manifestly was entitled to have considered the 

disproportionate commission of violent gun crimes by young 

adults, the fact that most mass shooters purchase weapons 

legally, and the fact that semiautomatic weapons “have been 

the weapons of choice in many of the deadliest shootings in 

recent history,” as eminently reasonable bases to curtail the 

ability of young adults to purchase or receive transfer of 

semiautomatic rifles from FFLs. Worman, 922 F.3d at 39; 
JONES V. BONTA 97

see also Elzerie de Jager, Eric Goralnick, Justin C. McCarty, 

et al., Lethality of Civilian Active Shooter Incidents With and 

Without Semiautomatic Rifles in the United States, 320 J.

AM. MED. ASS’N 1034 (2018) (“Semiautomatic rifles are 

designed for easy use, can accept large magazines, and fire 

high-velocity bullets, enabling active shooters to wound and 

kill more people per incident.”).

Beyond these significant safety concerns, contemporary 

scientific research increasingly sheds light on the relative 

immaturity and incomplete cognitive development of young 

adults. California cites to evidence that young adults are less 

mature than older adults, which leads them to take more risks 

and behave more reactively than their elders. Young adults 

are thus quicker to anger than older adults and more 

vulnerable to intense mood swings and to making 

instinctive, rather than considered, decisions. This cognitive 

immaturity makes young adults more likely to use firearms 

in situations of significant emotional arousal or perceived 

threat, or other situations that require rapid, complex 

information processing. Other Circuits have credited similar 

evidence to uphold regulations on firearms affecting 18 to 

20-year-olds. NRA, 700 F.3d at 208; Horsley v. Trame, 

808 F.3d. 1126, 1133 (7th Cir. 2015). The semiautomatic 

rifle regulation helps to “ensure that access to these weapons 

is restricted to mature individuals who have successfully 

completed safety training,” such as members of law 

enforcement and the military, “furthering the public safety 

objectives and ensuring that the Founding Era balancing of 

Second Amendment rights with safety concerns continues 

today.” Jones, 498 F. Supp. 3d at 1328.

The regulation also leaves open multiple avenues for 

young adults to possess and use firearms for self-defense. As 

discussed previously, see infra Part II.A, the semiautomatic 
98 JONES V. BONTA

regulation leaves open exemptions for young adults with 

military and law enforcement training. California highlights 

the fact that, while semiautomatic rifles were popular 

purchases among young adults in the past, young adults have 

also purchased or received transfer of numerous other types 

of long guns during the same period.

Ultimately, California provides substantial and 

substantiated justifications for its enactment of the 

semiautomatic rifle regulation. The evidence is sufficient to 

show that the regulation “promotes a ‘substantial 

government interest that would be achieved less effectively 

absent regulation.’” Fyock, 779 F.3d at 1000 (quoting 

Colacurcio, 163 F.3d at 553). I am quite comfortable 

concluding that the semiautomatic rifle regulation satisfies 

constitutional muster under intermediate scrutiny.

III.

Finally, because I find that the semiautomatic rifle 

regulation withstands intermediate scrutiny, I disagree with 

the majority’s conclusions that the district court erred in 

finding no irreparable harm to plaintiffs, and that the district 

court erred in finding that a preliminary injunction would not 

be in the public interest. Finding no issue with the district 

court’s legal conclusions, I review the district court’s factual 

findings for clear error. Washington v. United States Dep’t 

of State, 996 F.3d 552, 560 (9th Cir. 2021).

First, the majority is simply incorrect to say that the 

district court conflated its analysis of the two regulations 

challenged here when it ruled that young adults could still 

obtain firearms under exceptions. See Jones, 498 F. Supp. 3d 

at 1331. The district court was, in fact, correct that both 

regulations contain the following exceptions: “[y]oung 

[a]dults are not banned from acquiring all firearms, but may 
JONES V. BONTA 99

qualify under an exception, or may receive transfers from 

parents, grandparents, and spouses.” Id. The district court’s 

finding of fact here is based on a clear, obvious reading of 

the statute before us. There is no clear error here, and I would 

uphold the denial of the motion for a preliminary injunction 

for lack of irreparable harm.

Second, the majority errs in saying that the district court 

conflated its analysis of the two regulations in finding that 

the balance of interests weighed against an injunction. The 

district court was, again, correct in finding that both 

regulations serve to “advance public safety by limiting the 

possession and use of deadly weapons to mature individuals

who have demonstrated discipline through proper training to 

ensure public safety while honoring the Second Amendment 

rights of these individuals.” Id. at 1332. The majority 

contends that the “training” aspect only applies to the long 

gun regulation because it contains an exception for young 

adults with hunting licenses. However, by restricting the 

purchase of semiautomatic rifles to persons with military and 

law enforcement training, the semiautomatic rifle regulation 

creates an exception for persons with a higher level of safety 

education and training. The latter regulation’s more 

restrictive ambit accords with the heightened dangerousness 

of semiautomatic rifles as compared with other types of long 

gun. Therefore, the district court made no conflation, and it 

was not clear error for it to determine that “[t]he potential 

harm of enjoining a duly-enacted law designed to protect 

public safety outweighs [y]oung [a]dults’ inability to secure 

the firearm of their choice without proper training.” Id.

Accordingly, I would not disturb the district court’s 

decision to deny plaintiffs’ motion for a preliminary 

injunction, and would affirm that court’s determination.
100 JONES V. BONTA

IV.

In sum, the district court was correct to hold that both the 

long gun regulation and the semiautomatic rifle regulation 

do not impermissibly burden Second Amendment rights. It 

correctly applied intermediate scrutiny to both laws and 

properly denied plaintiffs’ request for a preliminary 

injunction. Therefore, I would affirm the district court’s 

ruling in full and respectfully, but decidedly, dissent from 

the majority’s holding with respect to the semiautomatic rifle 

regulation.