Second Amendment

Suit Challenges California's New Background Check Law for Ammunition

The law demands use of Real I.D. compliant identification for background checks that many state residents don't have

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California's new statewide law requiring background checks to purchase ammunition is facing a legal challenge supported by the California Rifle and Pistol Association. Among other complaints, the suit says the law, which went into effect last month, violates Californians' Second Amendment rights.

A hearing to consider a motion to enjoin the state from enforcing the ammo background check is currently scheduled for August 19.

One sticking point involves the law's demand that a citizen present identification in order to go through the background check. The plaintiffs in the case, known as Rhode v. Becerra, complain that the state is enforcing more stringent requirements in this context than it uses for most other legal purposes, enforcing federal "real ID" requirements that go beyond what most Californians currently possess:

Under [the state's] regulation, a California driver license or identification card with the notation "FEDERAL LIMITS APPLY" is sufficient for virtually all other purposes, yet not to acquire ammunition….While this form of ID is issued by the State itself, as proof of both identity and residence, individuals possessing this state-issued ID must nonetheless present additional documentation (such as a valid U.S. passport or certified copy of a U.S. birth certificate) to purchase ammunitiion…Should this additional proof not match precisely the name appearing on the California ID, additional documentation must be provided explaining the reason for the name change.

The plaintiffs consider it absurd that the state says

the identification that California issues as a default and thus implicitly deems sufficient for all other purposes is insufficient for purchasing ammunition—a constitutional right!…Making matters worse, the State does not even have the excuse here that federal law compels its extra identification requirement because the federal government accepts FLA ["federal limits apply,"meaning it is not federal REAL ID compliant] IDs as sufficient for its own purposes—including to pass background checks to purchase a firearm. There is simply no plausible basis on which a state can claim that an ID issued by the state itself, and accepted as sufficient by the federal government, is nonetheless insufficient even to allow an individual to undergo a background check to determine whether he may exercise his Second Amendment rights.

Because of this, "some Vendors have reported that they have been forced to turn away about half of their customers in a given day for lacking a federally compliant ID or supplemental documentation." This reportedly includes "customers whose job entails gun use, including some serving in the United States military and a Department of Defense firearms instructor."

Various vendors have filed declarations to accompany the suit. They paint a picture of a business now hobbled by bureaucracy. "Before the System's implementation, a typical ammunition transaction could take less than a minute to complete," the injunction request reports. "But it now can take 20 minutes—often more—just to enter and process the required information through [the dealer entry system], in addition to the time necessary for [the state] to approve or reject the transaction." Some sellers "have reported estimated losses of nearly half the daily revenues they enjoyed before the new restrictions took effect."

Vendors associated with the plaintiffs report 10–60 percent rejection rates of would-be customers with the new system, while "Typical rejection rates for firearm purchases, on the other hand, average around 1%." As the filing argues, "Such a high (and disproportionate) denial rate cannot accurately reflect the number of persons who are prohibited from possessing a firearm, meaning that many law-abiding people are being unjustifiably denied the ability to obtain ammunition for the firearms that they are constitutionally entitled to keep and bear."

The suit also raises commerce clause issues, arguing that the law substantially burdens any ammunition vendor without a physical presence in the state from selling ammunition to Californians.

In its filing to oppose the motion, the state claims that the vendors' complaints about how the system is working in practice are merely "anecdotal reports" that "do not establish a constitutional violation." The state argues that the plaintiffs cannot win under the Supreme Court's Heller standard. Heller is the 2008 case that established the Second Amendment defines an individual right to be able to have commonly used weapons, at least for self-defense in the home; the ruling does state that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions" preventing certain types of people from owning weapons, or barring arms from certain places, or, most relevant to this case, "imposing conditions and qualifications on the commercial sale of arms."

Because of that language in Heller, California insists its challenged ammo background check law is "the kind of presumptively lawful regulatory measures that the Supreme Court has said do not implicate the Second Amendment."

That isn't necessarily as clear as the state's lawyers claim, since no similar statewide background check for ammunition purchases law existed in the country at the time Heller was decided. The opposing side argues that the existence of similar laws in two California cities before Heller (though only about a decade before it) are not enough to make ammo background checks the sort of "longstanding prohibitions" that are presumptively OK under its doctrine.

California Attorney General Xavier Becarra is proud, the Los Angeles Times reports, that the system has prevented more than 100 prohibited persons from buying ammo in the last month. As usual with restrictions of types of people from access to weapons, there is no proof that many or even any of the prohibited would have harmed the innocent with their access to the contraband. The state's filing notes that Los Angeles and Sacramento had such ammo background checks already, but it does not present evidence that this had an effect on gun crime in those areas.

When the law prevents citizens from purchasing ammunition "until the purchaser can prove that they are not prohibited persons," the law's challengers argue, that "flips constitutional order on its head. The State has the burden to prove that a person is not entitled to exercise a right—not the other way around."