Fahr v. City of San Diego, California

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAMES FAHR, et al., Case No. 21-cv-1676-BAS-BGS 12 Plaintiffs, ORDER DIRECTING PARTIES TO 13 v. PROVIDE SUPPLEMENTAL BRIEFING 14 CITY OF SAN DIEGO, et al., 15 Defendants. 16 17 In the wake of the United States Supreme Court’s decision in District of Columbia 18 v. Heller, 544 U.S. 570 (2008) (“Heller”), the Courts of Appeals each devised a two-step 19 constitutional framework for assessing Second Amendment challenges, bearing similarity 20 across the eleven Circuits. See, e.g., Young v. Hawaii, 992 F.3d 765, 782 (9th Cir. 2021).1 21 In the Ninth Circuit, for example, courts first examine whether the “challenged law affects 22 conduct that is protected by the Second Amendment” based upon a “historical 23 1 Each of the other ten United States Courts of Appeals have adopted similar two-step analytical 24 approaches to the Second Amendment as the Ninth Circuit. See Worman v. Healey, 922 F.3d 26, 33, 36– 25 39 (1st Cir. 2019); Libertarian Party of Erie Cty. v. Cuomo, 970 F.3d 106, 127–28 (2d Cir. 2020); Ass’n of N.J. Rifle& Pistol Clubs, Inc. v. Attorney General N.J., 910 F.3d 106, 117 (3d Cir. 2018); Harley v. 26 Wilkinson, 988 F.3d 766, 769 (4th Cir. 2021); Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 700 F.3d 185, 194–95 (5th Cir. 2012); United States v. Greeno, 679 F.3d 510, 27 518 (6th Cir. 2012); Kanter v. Barr, 919 F.3d 437, 442 (7th Cir. 2019) (en banc); United States v. Reese, 627 F.3d 792, 800 (10th Cir. 2010); GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1260 n.34 (11th 28 1 understanding of the scope of the right.” Young, 992 F.3d at 784 (quoting Silvester v. 2 Harris, 843 F.3d 816, 820–21 (9th Cir. 2016)); accord Kanter, 919 F.3d at 441 (instructing 3 that the first step asks whether “the challenged law regulates activity falling outside the 4 scope of the right as originally understood”). If the challenged law is among the 5 “presumptively lawful” forms of gun control explicitly identified in Heller,2 or if “there is 6 persuasive historical evidence showing that the regulation does not impinge on the Second 7 Amendment right as it was historically understood,” the analysis need not go any further: 8 the constitutional challenge failed. See Young, 992 F.3d at 784 (quoting Silvester, 843 F.3d 9 at 821); accord Greeno, 679 F.3d at 518 (holding that if the challenged law governs 10 conduct beyond the Second Amendment’s textual scope, “then the analysis can stop there; 11 the regulated activity is categorically unprotected”). 12 If the conduct regulated by the challenged law is protected by the Second 13 Amendment, courts proceed to the second step of the analytical framework: determining 14 what level of scrutiny to apply. See Young, 992 F.3d at 784 (quoting Silvester, 843 F.3d at 15 821). The answer to this question depends upon the severity of the burden the challenged 16 gun control imposes upon the “right to bear arms.” See id. (quoting Silvester, 843 F.3d at 17 821); accord Kanter, 919 F.3d at 441 (instructing that second step examines “how close 18 the law comes to the core of the Second Amendment right and the severity of the law’s 19 burden on that right”). Generally, one of three tiers of scrutiny applied: “If a regulation 20 ‘amounts to a destruction of the Second Amendment right,’ it is unconstitutional under any 21 level of scrutiny; a law that ‘implicates the core of the Second Amendment right and 22 severely burdens that right’ receives strict scrutiny; and in other cases in which Second 23 24 25 2 The Heller Court identified a non-exhaustive list of presumptively constitutional gun regulations, 26 which have lived alongside the right to bear arms for the purpose of self-defense since the birth of this nation. See 554 U.S. at 627 (“[N]othing in our opinion should be taken to cast doubt on longstanding 27 prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and 28 1 Amendment rights are affected in some lesser way, [courts generally] apply intermediate 2 scrutiny.” Young, 992 F.3d at 784 (quoting Silvester, 843 F.3d at 821). 3 On June 23, 2022, while Defendants’ motion to dismiss in the instant action was 4 pending (see Mot. to Dismiss (“Mot.”), ECF No. 22), the United States Supreme Court in 5 New York Rifle & Pistol Ass’n v. Bauer, No. 20-843, --- S.Ct. ---, 2022 WL 2251305, at *1 6 (U.S. June 23, 2022) (“Bauer”) curtailed the two-step approach described above. See 7 Bauer, 2022 WL 2251305, at *7–8 (“In the years since [Heller], the Courts of Appeals 8 have coalesced around a ‘two-step’ framework for analyzing Second Amendment 9 challenges that combines history with means-end scrutiny. Today, we decline to adopt that 10 two-part approach. In keeping with Heller, we hold that when the Second Amendment’s 11 plain text covers an individual’s conduct, the Constitution presumptively protects that 12 conduct.”). Specifically, the Court held that the Court of Appeals’ test involves “one step 13 too many,” and denounced application of the second step of the above-described 14 constitutional framework. Id., at *8. 15 Having reviewed the briefs in support of and in opposition to the pending Motion, 16 the Court observes that the parties principally hash out whether San Diego Municipal Code 17 § 53.18 (“Section 53.18”) is consistent with the Second Amendment within the context of 18 the now-repudiated second step of the above-referenced constitutional framework as 19 opposed to within the first step, which is anchored in the Second Amendment’s text and its 20 historical understanding. For instance, while Defendants summarily assert that the 21 historical record demonstrates Section 53.18 is comparable to “long-standing, 22 presumptively lawful regulation[s],” Defendants do not actually proffer any historical 23 analogy in support of that assertion. (Mem. in supp. of Mot. (“Mem.”) at 6, ECF No. 22- 24 1.) Similarly, Plaintiffs devote just one paragraph in their attempt to demonstrate there 25 exists a historical record for the premise the right to “bear” arms has been textually and 26 historically understood to encompass the collateral right to self-manufacture of firearms. 27 (Id. at 6–7.) After Bauer, it is critical that parties to a Second Amendment challenge 28 develop a historical record on these issues. 1 Therefore, Bauer necessitates supplemental briefing to aid the Court in resolution of 2 ||the Motion on the following issues: 3 1. Whether the right to “bear arms” encompasses the private manufacture 4 of firearms as a textual and historical matter; and 5 2. Assuming an affirmative answer to the first question, whether there 6 exists in the annals of this Nation’s history lawful gun control that is analogous 7 to Section 53.18. See Bauer, 2022 WL 2251305, at *13 (instructing lower courts 8 to examine “at least two metrics” in assessing the sufficiency of a historical 9 analogy: “how and why the regulations burden a law-abiding citizen’s right to 10 armed self-defense’’). 11 Accordingly, the Court HEREBY ORDERS the parties to concurrently file 12 supplemental briefs addressing the above-mentioned questions by no later than July 22, 13 |{2022. 14 IT IS SO ORDERED. 15 16 ||[DATED: July 1, 2022 Lin A (Ayphan 6 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28 _A.