                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


BARRY BAUER; NICOLE FERRY;               No. 15-15428
JEFFREY HACKER; NATIONAL RIFLE
ASSOCIATION OF AMERICA, INC.;              D.C. No.
CALIFORNIA RIFLE AND PISTOL             1:11-cv-01440-
ASSOCIATION FOUNDATION; HERB               LJO-MJS
BAUER SPORTING GOODS, INC.,
              Plaintiffs-Appellants,
                                           OPINION
                 v.

XAVIER BECERRA, in his official
capacity as Attorney General of the
State of California; STEPHEN
LINDLEY, in his official capacity as
Acting Chief of the California
Department of Justice; DOES, 1–10,
               Defendants-Appellees.


      Appeal from the United States District Court
         for the Eastern District of California
      Lawrence J. O’Neill, Chief Judge, Presiding

         Argued and Submitted April 19, 2017
              San Francisco, California
2                       BAUER V. BECERRA

Before: Sidney R. Thomas, Chief Judge, and Ferdinand F.
    Fernandez and Mary H. Murguia, Circuit Judges.

                         Filed June 1, 2017

                Opinion by Chief Judge Thomas


                            SUMMARY*


                            Civil Rights

      The panel affirmed the district court’s summary
judgment in favor of the State of California in an action
challenging, on Second Amendment grounds, California
Penal Code § 28225, which requires the allocation of $5 of a
$19 fee on firearms transfers to fund enforcement efforts
against illegal firearm purchasers through California’s Armed
Prohibited Persons System.

     The panel held that the use of the fee to fund enforcement
efforts survived intermediate scrutiny because the
government has demonstrated an important public safety
interest in this statutory scheme, and there was a reasonable
fit between the government’s interest and the means it has
chosen to achieve those ends. Accordingly, the district court
did not err in concluding that the use of the fee to fund the
California’s Armed Prohibited Persons System program,
through California Penal Code § 28225, did not violate the
Constitution.

    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                   BAUER V. BECERRA                      3

                       COUNSEL

Erin E. Murphy (argued), Paul D. Clement, and Edmund G.
LaCour Jr., Bancroft PLLC, Washington, D.C.; C.D. Michel,
Sean A. Brady, and Anna M. Barvir, Michel & Associates
P.C., Long Beach, California; for Plaintiffs-Appellants.

Anthony R. Hakl (argued), Deputy Attorney General; Stepan
A. Haytayan, Supervising Deputy Attorney General; Douglas
J. Woods, Senior Assistant Attorney General; Office of the
Attorney General, Sacramento, California; for Defendants-
Appellees.

Sarah E. Tremont and Elliott Schulder, Covington & Burling
LLP, Washington, D.C.; Jonathan E. Lowry and Kelly
Sampson, Brady Center to Prevent Gun Violence,
Washington, D.C.; for Amicus Curiae Brady Center to
Prevent Gun Violence.

Efrain Staino, Ruth N. Borenstein, and Jordan Eth, Morrison
& Foerster LLP, San Francisco, California, for Amicus
Curiae Law Center to Prevent Gun Violence.
4                    BAUER V. BECERRA

                         OPINION

THOMAS, Chief Judge:

    In this appeal, we consider whether California’s allocation
of $5 of a $19 fee on firearms transfers to fund enforcement
efforts against illegal firearm purchasers violates the Second
Amendment. We conclude that, even if collection and use of
the fee falls within the scope of the Second Amendment, the
provision survives intermediate scrutiny and is therefore
constitutional. We affirm the judgment of the district court.

                               I

    California regulates firearm sales and transfers through
the Dealer’s Record of Sale (“DROS”) system, which was
created a century ago and has been updated throughout the
intervening years. See 1917 Cal. Stat. 221, § 7. The DROS
system today requires that “any sale, loan, or transfer of a
firearm” be made through a licensed dealer, Cal. Penal Code
§§ 27545, 28050(a), and it requires dealers to keep
standardized records of all such transactions, id. at §§ 28100,
28160 et seq. This statutory framework also requires the
California Department of Justice (“the Department”) to run
background checks prior to purchase, and to notify the dealer
if a prospective firearm purchaser is prohibited from
possessing a gun under federal law or under certain
provisions of California law relating to prior convictions and
mental illness. Cal. Penal Code § 28220.

   The DROS system allows the Department to charge a fee,
known as the DROS fee, to cover the cost of running these
                        BAUER V. BECERRA                               5

background checks and other related expenses.1 Cal. Penal
Code § 28225. Although the use of the DROS fee was
originally limited to background checks, 1982 Cal. Stat. 1472,
§ 129, this provision was later expanded to allow the fee to be
used for “the costs associated with funding Department of
Justice firearms-related regulatory and enforcement activities
related to the sale, purchase, loan, or transfer of firearms,” as
well as certain costs incurred by other agencies in compliance
with the record-keeping and notification requirements of the
background check provisions. Cal. Penal Code 12076(e)
(repealed 2010, replaced by Cal. Penal Code § 28225). In
1995 the legislature capped the DROS fee, with inflation
adjustment to be set by regulation. Cal. Penal Code
§ 28225(a). With inflation, the fee was most recently set at
$19 in 2004. Cal. Code Regs. Tit. 11, § 4001.

    In 2011, the California Legislature further expanded the
permissible uses of the DROS fee by enacting the law that is
challenged in this case. This law, commonly referred to as
Senate Bill 819, changed the language of § 28225 to allow the
DROS fee to be used for “firearms-related regulatory and
enforcement activities related to the sale, purchase,
possession, loan, or transfer of firearms.” Cal. Penal Code
§ 28225(b)(11) (emphasis added). In effect, this change
allows the Department to use a portion of the DROS fee “for
the additional, limited purpose” of funding enforcement
efforts targeting illegal firearm possession after the point of
sale, through California’s Armed Prohibited Persons System
(“APPS”). 2011 Cal. Stat. 5735, § 1(g).



    1
      The statute permits the Department to “require the dealer to charge
each firearm purchaser a fee,” which is then remitted to the Department.
Cal. Penal code § 28225.
6                       BAUER V. BECERRA

    The APPS program, established in 2001, enforces
California’s prohibitions on firearm possession by identifying
“persons who have ownership or possession of a firearm” yet
who, subsequent to their legal acquisition of the firearm, have
later come to “fall within a class of persons who are
prohibited from owning or possessing a firearm” due to a
felony or violent misdemeanor conviction, domestic violence
restraining order, or mental health-related prohibition. Cal.
Penal Code §§ 30000, 30005. Essentially, these are people
who passed a background check at the time of purchase but
would no longer pass that check, yet still possess a firearm.

    The system identifies such people by cross-referencing
the Consolidated Firearms Information System (“CFIS”)
database of people who possess a firearm, which is generated
primarily through DROS reporting, against criminal records,
domestic violence restraining order records, and mental
health records. Cal. Penal Code §§ 11106, 30005. This
process generates a list of “armed prohibited persons,” which
the Department uses for “investigating, disarming,
apprehending, and ensuring the prosecution” of persons who
have become prohibited from firearm possession.

    Since the enactment of Senate Bill 819 in 2011, the APPS
program—including both the identification of armed
prohibited persons and the Department’s related enforcement
efforts confiscating firearms from those people—has been
partially funded by DROS fees.2 However, only a portion of
the DROS fee is used to fund APPS: the evidence in the
record before us suggests that the cost of running background


    2
      Most notably, in 2013, the legislature appropriated $24 million from
the DROS Account to the APPS program. 2013 Cal. Stat. 2, codified at
Cal. Penal Code § 30015.
                       BAUER V. BECERRA                            7

checks and processing DROS records is approximately $14,
meaning that only the remaining $5 of each DROS fee is
available for APPS funding.

    Barry Bauer and five other individuals and entities
(collectively, “Bauer”) challenge the use of this $5 portion of
the DROS fee3 to fund APPS, arguing that it violates the
Second Amendment because “the criminal misuse of
firearms” targeted by the APPS is not sufficiently related to
the legal acquisition of firearms on which the fee is imposed.
On these grounds, Bauer filed suit against the Attorney
General of California and the Chief of the California
Department of Justice Bureau of Firearms (collectively, “the
State”) in August 2011, seeking declaratory and injunctive
relief under 42 U.S.C. § 1983. Bauer subsequently filed an
amended complaint adding allegations regarding the 2013
appropriation of funds from the DROS account to the APPS
program.

    The district court granted summary judgment for the
State, concluding that the DROS fee does not violate the
Constitution because it falls outside the scope of the Second
Amendment as a “condition[ or] qualification[] on the
commercial sale of arms.” Dist. of Columbia v. Heller,
554 U.S. 570, 626–27 (2008). In the alternative, the district
court concluded that the DROS fee would survive heightened
scrutiny even if the Second Amendment were implicated,
because it places only a “marginal burden” on the of the core
Second Amendment right. Bauer timely appealed.



    3
      Bauer challenges only the approximately $5 portion of the DROS
fee that exceeds the Department’s actual costs for running background
checks and processing DROS records.
8                    BAUER V. BECERRA

     The district court had jurisdiction under 28 U.S.C. § 1331,
and we have jurisdiction to hear Bauer’s appeal under
28 U.S.C. § 1291. “We review a district court’s grant of
summary judgment de novo.” Peruta v. Cty. of San Diego,
824 F.3d 919, 925 (9th Cir. 2016) (en banc) (citing Sanchez
v. Cty. of San Diego, 464 F.3d 916, 920 (9th Cir. 2006)).
Similarly, “[w]e review constitutional questions de novo.”
Id. (citing Am. Acad. of Pain Mgmt. v. Joseph, 353 F.3d 1099,
1103 (9th Cir. 2004)).

                               II

    The Second Amendment provides: “A well regulated
Militia, being necessary to the security of a free State, the
right of the people to keep and bear Arms, shall not be
infringed.” U.S. Const. amend. II. In the Supreme Court’s
seminal decision on Second Amendment rights, District of
Columbia v. Heller, the Court articulated an individual right
to bear arms but explained that this holding should not “be
taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill, or laws
forbidding the carrying of firearms in sensitive places such as
schools and government buildings, or laws imposing
conditions and qualifications on the commercial sale of
arms.” 554 U.S. at 626–27. The Court described these
categories of regulation as “presumptively lawful” and noted
that this list was not intended to be exhaustive. Id. at 627
n.26.

    In accord with many of our sister circuits, “we have
discerned from Heller’s approach a two-step Second
Amendment inquiry.” Jackson v. City & Cty. of S.F.,
746 F.3d 953, 960 (9th Cir. 2014) (citing United States v.
Chovan, 735 F.3d 1127, 1136–37 (9th Cir. 2013)); see also,
                    BAUER V. BECERRA                       9

e.g., United States v. Chester, 628 F.3d 673, 680 (4th Cir.
2010); United States v. Reese, 627 F.3d 792, 800 (10th Cir.
2010); United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir.
2010). This two-step inquiry “(1) asks whether the
challenged law burdens conduct protected by the Second
Amendment and (2) if so, directs courts to apply an
appropriate level of scrutiny.” Jackson, 746 F.3d at 960
(citing Chovan, 735 F.3d at 1136). In determining whether a
given regulation falls within the scope of the Second
Amendment under the first step of this inquiry, “we ask
whether the regulation is one of the ‘presumptively lawful
regulatory measures’ identified in Heller, or whether the
record includes persuasive historical evidence establishing
that the regulation at issue imposes prohibitions that fall
outside the historical scope of the Second Amendment.” Id.
(first quoting Heller, 554 U.S. at 627 n.26; then citing
Chovan, 735 F.3d at 1137).

    Here, Bauer contends that the challenged portion of the
DROS fee burdens conduct protected by the Second
Amendment because it applies to all firearm transfers, not
just those that would be considered “commercial sale” in the
ordinary sense. Cal. Penal Code §§ 27545, 28050, 28055(b).
Thus, Bauer argues that the DROS fee does not belong to the
category of “conditions and qualifications on the commercial
sale of arms” that Heller held to be presumptively lawful at
the first step of the inquiry. See 554 U.S. at 626–27 & n.26.
The State counters that by regulating transactions conducted
through commercial firearm dealers, the DROS fee is
properly considered a condition on the commercial sale of
arms and thus falls outside the scope of the Second
Amendment under Heller’s first step.
10                  BAUER V. BECERRA

    We need not decide this question because the challenged
portion of the DROS fee would survive heightened scrutiny
even if it implicates Second Amendment protections.
Therefore, for purposes of this analysis, we assume, without
deciding, that the challenged fee burdens conduct falling
within the scope of the Second Amendment. See Silvester v.
Harris, 843 F.3d 816, 826–27 (9th Cir. 2016) (assuming
without deciding that waiting period laws fall within the
scope of the Second Amendment at step one); Fyock v.
Sunnyvale, 779 F.3d 991, 997 (9th Cir. 2015) (bypassing step
one because firing-capacity regulations would survive
heightened scrutiny even if they fell within the scope of the
Second Amendment).

                             III

    If a law burdens conduct protected by the Second
Amendment, as we assume, but do not decide that this one
does, Heller mandates some level of heightened scrutiny.
554 U.S. at 628 & n.27. We conclude that intermediate
scrutiny is the appropriate standard for analyzing the fee
scheme challenged here, and we hold that the fee survives
under this standard.

                             A

    Because Heller did not specify a particular level of
scrutiny for all Second Amendment challenges, courts
determine the appropriate level by considering “(1) how close
the challenged law comes to the core of the Second
Amendment right, and (2) the severity of the law’s burden on
that right.” Silvester, 843 F.3d at 821 (citing Jackson,
746 F.3d at 960–61). Heller identified the core of the Second
Amendment as “the right of law-abiding, responsible citizens
                    BAUER V. BECERRA                       11

to use arms in defense of hearth and home.” 554 U.S. at 635.
Guided by this understanding, our test for the appropriate
level of scrutiny amounts to “a sliding scale.” Silvester,
843 F.3d at 821. “A law that imposes such a severe
restriction on the fundamental right of self defense of the
home that it amounts to a destruction of the Second
Amendment right is unconstitutional under any level of
scrutiny.” Id. (citing Chovan, 735 F.3d at 1138). Further
down the scale, a “law that implicates the core of the Second
Amendment right and severely burdens that right warrants
strict scrutiny.     Otherwise, intermediate scrutiny is
appropriate.” Id.

    Here, Bauer argues that the core right to possess and use
a firearm in the home includes a corresponding right to
purchase a firearm, and that the core right is therefore
burdened by the DROS fee. But even if we assume that the
right to possess a firearm includes the right to purchase one,
the burden on that right is exceedingly minimal here.

    Bauer has neither alleged nor argued that the $19 DROS
fee—let alone the smaller, $5 challenged portion of the
fee—has any impact on the plaintiffs’ actual ability to obtain
and possess a firearm. Although Bauer suggests that a
hypothetical $1 million fee could effectively eliminate the
general public’s ability to acquire a firearm, that extreme
comparison underscores the minimal nature of the burden
here. Indeed, in considering a fee much larger than the one
here, the Second Circuit suggested in Kwong v. Bloomberg
that even a $340 licensing fee might not be a “substantial
12                        BAUER V. BECERRA

burden” on Second Amendment rights.”4 723 F.3d 160, 167
(2d Cir. 2013). On the facts before us, the challenged portion
of the DROS fee does not “severely burden[]” or even
meaningfully impact the core of the Second Amendment
right, and intermediate scrutiny is therefore appropriate. See
Silvester, 843 F.3d at 821 (citing Chovan, 735 F.3d at 1138).

    This approach is consistent with our past cases analyzing
the appropriate level of scrutiny under the second step of
Heller, as we have repeatedly applied intermediate scrutiny
in cases where we have reached this step. Silvester, 843 F.3d
at 823 (applying intermediate scrutiny to a law mandating
ten-day waiting periods for the purchase of firearms); Fyock,
779 F.3d at 999 (applying intermediate scrutiny to a law
prohibiting the possession of large-capacity magazines);
Jackson, 746 F.3d at 965, 968 (applying intermediate scrutiny
to laws mandating certain handgun storage procedures in
homes and banning the sale of hollow-point ammunition in
San Francisco); Chovan, 735 F.3d at 1138 (applying
intermediate scrutiny to a law prohibiting domestic violence
misdemeanants from possessing firearms).

    Similarly, our sister circuits have overwhelmingly applied
intermediate scrutiny when analyzing Second Amendment
challenges under Heller’s second step. See, e.g., Kwong,
723 F.3d at 168 & n.16 (law imposing a $340 licensing fee on
all handguns); NRA v. McCraw, 719 F.3d 338, 348 (5th Cir.
2013) (law prohibiting 18-to-20-year-olds from carrying
handguns in public); Woollard v. Gallagher, 712 F.3d 865,


     4
      Although the DROS fee is not a licensing fee, it is analogous in the
sense that it applies to essentially all means of acquiring a firearm, just as
a licensing fee applies to all those who acquire and possess a firearm
under a licensing or registration scheme.
                    BAUER V. BECERRA                       13

876 (4th Cir. 2013) (law requiring a “good and substantial
reason” for issuance of a handgun permit); Kachalsky v. Cty.
of Westchester, 701 F.3d 81, 96–97 (2d Cir. 2012) (law
requiring a showing of “proper cause” to obtain a concealed
carry permit); Heller v. Dist. of Columbia (Heller II),
670 F.3d 1244, 1256–58, 1261–62 (D.C. Cir. 2011) (laws
imposing registration requirements on all firearms and
banning assault weapons and large-capacity magazines);
Reese, 627 F.3d at 802 (law prohibiting possession of all
firearms while subject to a domestic protection order);
Marzzarella, 614 F.3d at 97 (law effectively prohibiting
possession of firearms with obliterated serial numbers);
United States v. Skoien, 614 F.3d 638, 641 (7th Cir. 2010)
(law prohibiting domestic violence misdemeanants from
possessing firearms); but see Ezell v. City of Chicago,
651 F.3d 684, 708 (7th Cir. 2011) (applying “a more rigorous
standard” than intermediate scrutiny, “if not quite ‘strict
scrutiny,’” to a law mandating firing-range training as a
prerequisite to gun ownership but banning all firing ranges
within the City of Chicago). In short, intermediate scrutiny
is the appropriate standard for the minimal burden posed by
the portion of the DROS fee challenged in this case.

                              B

    Our intermediate scrutiny test under the Second
Amendment requires that “(1) the government’s stated
objective . . . be significant, substantial, or important; and
(2) there . . . be a ‘reasonable fit’ between the challenged
regulation and the asserted objective.” Silvester, 843 F.3d at
821–22 (quoting Chovan, 735 F.3d at 1139). The challenged
portion of the DROS fee survives this test.
14                  BAUER V. BECERRA

    The government’s stated objective for using a portion of
the DROS fee to fund APPS, as expressed in the legislative
findings in Senate Bill 819, is to target “[t]he illegal
possession of . . . firearms” because illegal possession
“presents a substantial danger to public safety.” 2011 Cal.
Stat. 5735, § 1(d). Thus, the State asserts that its goal is
“improving public safety by disarming individuals who are
prohibited from owning or possessing firearms.” The
legislative findings in Senate Bill 819 estimated that there
were more than 18,000 armed prohibited persons in
California at the time the law was passed, and the APPS
program aims to target these violations. 2011 Cal. Stat. 5735,
§ 1(d).

    As we have previously stated, “‘[i]t is self-evident’ that
public safety is an important government interest,” and
reducing “gun-related injury and death” promotes public
safety. Jackson, 746 F.3d at 965 (quoting Chovan, 735 F.3d
at 1139). Moreover, in light of Heller’s specific approval of
“prohibitions on possession of firearms by felons and the
mentally ill,” 554 U.S. at 626–27, we have recognized that
public safety is advanced by keeping guns out of the hands of
people who are most likely to misuse them for these reasons.
See e.g., Chovan, 735 F.3d at 1139–40; accord, Fortson v.
L.A. City Attorney’s Office, 852 F.3d 1190, 1193 (9th Cir.
2017). We therefore conclude that the State has established
a “significant, substantial, or important interest” in the
challenged law. Silvester, 843 F.3d at 821–22. The use of
the DROS fee to fund APPS thus satisfies the first prong of
intermediate scrutiny.

    Under the second prong of the intermediate scrutiny test,
we require a “reasonable fit” between the government’s stated
objective and its means of achieving that goal, and we “have
                     BAUER V. BECERRA                         15

said that ‘intermediate scrutiny does not require the least
restrictive means of furthering a given end.’” Id. at 827
(quoting Jackson, 746 F.3d at 969).

    Given the State’s important interest in promoting public
safety and disarming prohibited persons under the first prong
of the test, there is a “reasonable fit” between these important
objectives and the challenged portion of the DROS fee. As
we have noted, the statute provides that the DROS fee is
intended to fund “costs associated with funding Department
of Justice firearms-related regulatory and enforcement
activities related to the sale, purchase, possession, loan, or
transfer of firearms.” Cal. Penal Code § 28225(b)(11).
Because the APPS program involves the investigation of
illegally armed individuals and enforcement of firearms laws,
there is certainly a fit between the legislative objective and
the use of the DROS fee. Indeed, the unlawful firearm
possession targeted by APPS is the direct result of certain
individuals’ prior acquisition of a firearm through a DROS-
governed transaction.

    The legislative history supports this conclusion. The
California Senate Committee considering the legislation
stated in its report that it “would clarify that [the Department]
is permitted to use DROS funds to pay for its efforts to
retrieve unlawfully possessed firearms and prosecute
individuals who possess those firearms despite being
prohibited by law from doing so.” Sen. Comm. on Public
Safety, Analysis of S.B. 819, 2011–12 Reg. Sess., at 11 (April
26, 2011). In addition, the legislative history indicates that,
like the use of the DROS fee to fund a background check at
the time of purchase, the use of the DROS fee to fund APPS
simply allows ongoing enforcement when some of “those
same individuals” later become prohibited from possessing a
16                   BAUER V. BECERRA

firearm. Assem. Comm. on Appropriations, Analysis of S.B.
819, 2011–2012 Reg. Sess., at 2 (July 6, 2011).

    Moreover, we have emphasized that “‘intermediate
scrutiny does not require the least restrictive means of
furthering a given end.’” Silvester, 843 F.3d at 827 (quoting
Jackson, 746 F.3d at 969). Accordingly, the fact that not all
DROS fee payers will later be subject to an APPS
enforcement action does not signify that this use of the DROS
fee is unconstitutionally broad. Cf. Jackson, 746 F.3d at 967
(concluding that the fit was reasonable even though the
regulation could have been drawn more narrowly, because the
burden was minimal and intermediate scrutiny does not
require the least restrictive means). Thus, with the limited
burden and the close relationship between firearm acquisition
and monitoring of illegal possession, the State has established
the requisite “reasonable fit” to satisfy the second prong of
the intermediate scrutiny test.

                              C

    Bauer argues that traditional Second Amendment
intermediate scrutiny should not apply because this case
involves a fee. He urges us to apply the line of “fee
jurisprudence” that was developed by the Supreme Court in
the First Amendment context to assess the constitutionality of
fees imposed on the exercise of constitutional rights. We
have recognized that there are other elements of Second
Amendment jurisprudence that have First Amendment
analogies. See Jackson, 746 F.3d at 960. However, we need
not—and do not—decide whether First Amendment fee
                         BAUER V. BECERRA                               17

jurisprudence applies here because the fee easily survives that
inquiry.5

    Under First Amendment fee jurisprudence, the two
seminal cases on the constitutionality of fees are Cox v. New
Hampshire, 312 U.S. 569 (1941), in which permit and fee
requirements for parades and public rallies were upheld, and
Murdock v. Pennsylvania, 319 U.S. 105 (1943), in which
license and fee requirements for solicitors were struck down.
In Cox, the Supreme Court explained that a fee imposed on
the exercise of a constitutional right must not be a general
“revenue tax,” but such a fee is lawful if it is instead designed
“to meet the expense incident to the administration of the act
and to the maintenance of public order in the matter
licensed.” 312 U.S. at 577. The Court reiterated this
principle in Murdock, striking down the licensing fee in that
case because it was “not a nominal fee imposed as a
regulatory measure to defray the expenses of policing the
activities in question.” 319 U.S. at 113–14. Following this
precedent, we have similarly held that a “state may . . .
impose a permit fee that is reasonably related to legitimate
content-neutral considerations, such as the cost of
administering the ordinance” in question, as long as the
ordinance or other underlying law is itself constitutional. S.
Oregon Barter Fair v. Jackson Cty., 372 F.3d 1128, 1139 (9th
Cir. 2004).

  Attempting to apply this precedent in the Second
Amendment context, Bauer argues that the APPS program is


    5
      The fact that the State did not contest which form of intermediate
scrutiny applied before the district court, but only raised that question on
appeal, also cautions against us deciding an issue not fully developed in
the district court.
18                  BAUER V. BECERRA

not sufficiently related to the DROS fee because targeting
illegal firearm possession via APPS is not closely related to
the legal acquisition of firearms governed by the DROS
requirements. Because he defines the regulated activity as
being limited to firearm acquisition, Bauer contends that the
cost of APPS cannot be considered an “expense[] of policing
the activities in question.” Murdock, 319 U.S. at 113–14.
However, this argument is undermined by Bauer’s own
contention, under the first step of Heller, that the DROS fee
burdens the Second Amendment right of possession precisely
because it governs essentially all means of acquiring a
firearm in California. See Cal. Penal Code §§ 27545, 28050,
28055(b). In light of this reality, DROS-regulated firearm
transactions are in fact a close proxy for subsequent firearm
possession, and targeting illegal possession under APPS is
closely related to the DROS fee.

    Moreover, despite Bauer’s emphasis on the fact that only
a small subset of DROS fee payers will later become illegal
possessors targeted by APPS, we note that essentially
everyone targeted by the APPS program was a DROS fee
payer at the time he or she acquired a firearm. Cf. Silvester,
843 F.3d at 827 (explaining that intermediate scrutiny does
not require least restrictive means). Indeed, each instance of
firearm possession targeted by APPS is a direct result of a
DROS-governed transaction. Along similar lines, Bauer
concedes that it is appropriate for the State to use the DROS
fee to fund a background check at the time of purchase. The
APPS program is, in essence, a temporal extension of the
background check program. The APPS program therefore,
can fairly be considered an “expense[] of policing the
activities in question,” Murdock, 319 U.S. at 113–14, or an
                         BAUER V. BECERRA                              19

“expense incident to . . . the maintenance of public order in
the matter licensed,” Cox, 312 U.S. at 577.6

    Because a tax on a constitutional right may not be used to
raise general revenue, Cox, 312 U.S. at 577, Bauer contends
that the DROS fee may not exceed the “actual costs” of
processing a license or similar direct administrative costs.
But in fact, nothing in our case law requires that conclusion.7
While we have not previously decided whether ongoing
enforcement costs may be considered part of the “expense
incident to . . . the maintenance of public order in the matter
licensed,” Cox, 312 U.S. at 577, several of our sister circuits
have held that “it is permissible to include the costs of both
administering and enforcing [the relevant licensing or
permitting statute] in determining the constitutionality of [a]
registration fee.” Nat’l Awareness Found. v. Abrams, 50 F.3d
1159, 1166 (2d Cir. 1995) (upholding a registration fee on
charitable organizations, fundraisers, and solicitors); see also
Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville &


    6
       The other federal courts that have considered firearm licensing or
registration fees under the fee jurisprudence framework have similarly
upheld those fees, each of which was larger than the challenged portion of
the DROS fee here. Heller III, 801 F.3d at 301; Kwong, 723 F.3d at 166;
Second Amendment Arms v. City of Chicago, 135 F. Supp. 3d 743, 766
(N.D. Ill. 2015); Justice v. Town of Cicero, 287 F. Supp. 2d 835 (N.D. Ill.
2011). Again, although the DROS fee is not a licensing fee, it is
analogous in the sense that all those who possess a firearm must pay the
fee at the outset.
    7
      The case Bauer cites in support of this argument, Kaplan v. Cty. of
Los Angeles, 894 F.2d 1076 (9th Cir. 1990), does not actually require that
fees be limited to the direct costs of processing licenses or permits; it
merely states that the statute in that case was clearly narrowly drawn
because it allowed local agencies to “recover actual costs alone,” id. at
1081.
20                      BAUER V. BECERRA

Davidson Cty., 274 F.3d 377, 395–96 (6th Cir. 2001)
(accounting for ongoing enforcement costs in upholding a
licensing fee on nude dancing establishments).

    Moreover, where the initial fee enables an activity that
has ongoing impacts, such as the purchase of firearms or the
licensing of an adult entertainment establishment as in Deja
Vu, there is an even stronger argument for including ongoing
enforcement as part of the costs of “policing the activities in
question.” Murdock, 319 U.S. at 113–14. To the extent that
fee jurisprudence applies in the Second Amendment context,
therefore, we conclude that enforcement costs are properly
considered part of the “expense[] of policing the activities in
question” permitted under Murdock and Cox. Murdock,
319 U.S. at 113–14. Accordingly, the enforcement activities
carried out through the APPS program are sufficiently related
to the DROS fee under this line of jurisprudence, and the
second prong of the intermediate scrutiny test is therefore
satisfied even considered through the lens of First
Amendment fee jurisprudence, which may or may not apply.

                                   D

    In sum, the use of the DROS fee to fund APPS survives
intermediate scrutiny because the government has
demonstrated an important public safety interest in this
statutory scheme, and there is a reasonable fit between the
government’s interest and the means it has chosen to achieve
those ends.8 Accordingly, the district court did not err in



     8
      In reaching our conclusion, we need not, and do not, decide what the
result would be if the DROS fee were used to enforce firearm possession
laws in general through the APPS program, or otherwise, rather than
                       BAUER V. BECERRA                           21

concluding that the use of the DROS fee to fund APPS,
through California Penal Code § 28225, does not violate the
Constitution.

                                 IV

    Where a law poses a minimal burden on core Second
Amendment rights in furtherance of an important government
interest, the federal courts have universally upheld it. We do
the same here. In doing so, we need not—and do not—
decide whether the fee implicates the Second Amendment,
nor do we decide whether First Amendment fee jurisprudence
should be applied in analyzing whether the provision passes
the intermediate scrutiny test. Because, even assuming the
Second Amendment applies in this context, California’s use
of the DROS fee to fund the APPS program survives
intermediate scrutiny under either test, we affirm the district
court’s grant of summary judgment in favor of the State.

    AFFIRMED.




firearm possession laws as they apply to those who legally acquired a
firearm by paying the fee.
