Second Amendment

Court Strikes Down California's Ammunition Background Check Requirement

The state has already appealed the decision to the 9th Circuit Court of Appeals.

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U.S. District Judge Roger T. Benitez has issued a preliminary injunction overturning California's ammunition sales laws. Those rules required all ammo sales to be conducted face-to-face with a licensed dealer, and they also forced all ammo buyers to undergo computerized background check through the California Department of Justice.

The state has already appealed the ruling to the 9th Circuit Court of Appeals, and the Court has already placed a stay on actually enforcing the decision.*

Benitez's decision in the case of Rhode v. Becerra,** which launched last summer with the backing of the California Rifle and Pistol Association, breaks at times into the sort of strong language one might ordinarily associate with a pro-Second-Amendment op-ed. "The casualties have been counted," he writes. "California's new ammunition background check law misfires and the Second Amendment rights of California citizens have been gravely injured" by the state's "onerous and convoluted new laws requiring ammunition purchase background checks and implementing ammunition anti-importation laws."

California's ammo laws are constitutionally defective, the judge argues:

First, criminals, tyrants, and terrorists don't do background checks. The background check experiment defies common sense while unduly and severely burdening the Second Amendment rights of every responsible, gun-owning citizen desiring to lawfully buy ammunition. Second, the implementing regulations systematically prohibit or deter an untold number of law-abiding California citizen-residents from undergoing the required background checks. Third, in the seven months since implementation, the standard background check rejected citizen-residents who are not prohibited persons approximately 16.4% of the time. Fourth, the ammunition anti-importation laws directly violate the federal dormant Commerce Clause.

Because the law makes it illegal for a California citizen to buy ammunition directly from out-of-state dealers, Benitez thinks it also runs afoul of the Constitution's Commerce Clause. And he is disturbed that the standard to prove oneself a citizen—step one of the background check process for legally buying ammunition—requires a federal "REAL ID"–compliant drivers license not yet enforced on all Californians, which is a more onerous hurdle than even buying a gun legally right now. (Without one, the prospective ammo buyer must also produce either a passport or a certified birth certificate. Only around 7 million of California's approximately 28 million adults have a REAL I.D.)

He saltily adds that law's title—the Safety for All Act—is "a misnomer,"

The injunction analyzes how the ammo background check system has worked so far. The judge finds that 616,257 people underwent a "standard" background check, and that of these

there were 188 would-be purchasers identified as "prohibited persons" (felons, fugitives, violent misdemeanants, etc.) and denied authorization to purchase ammunition….These are the people the new laws are designed to stop. Unfortunately, the Standard background check also rejected 101,047 other law-abiding citizen residents that the laws were not designed to stop. Later analysis reveals the rejections were either because the State has no record of gun ownership or because of identifier mismatches. To put this in perspective, 16% of those who established their citizenship were rejected and prevented from lawfully exercising their Constitutional right.

The only guidance a rejected would-be buyer gets, Benitez complains, is

a 15-digit number and a government website address for the California Firearms Application Reporting System (CFARS). The rejected citizen must then go to that website to discover the reason for rejection. Of course, this requires the person have access to a computer and the internet. The State says that the most common reason a person is rejected is a mis-match of addresses. Address mis-matches caused about 38% of the rejections. The second most common reason for a rejection accounting for about 26% of all rejections is that the purchaser did not have an AFS [Automated Firearms System] record. The AFS database is a record of firearm transfers, but it is limited to shotguns and rifles purchased since 2014 and handguns purchased mostly since 1990. Thus, a person may lawfully own a firearm and have no AFS entry.

Benitez notes that the number of people officially denied under the system doesn't count those who, lacking REAL-ID or its alternatives, don't even reach the step of getting checked. "How many gave up? If it is any indication, early on at two California stores, approximately one-half of the potential ammunition customers were turned away without a background check."

Tangled Standards of Review

Benitez digs deep into an issue that Second Amendment forces hope the Supreme Court will eventually tackle nationally: What is the proper judicial standard of review for Second Amendment cases?

The state of California thinks the proper standard is intermediate scrutiny, in which the "government's interest must be important and the fit of the law to the objective must be reasonable." The government's lawyers support this with what Benitez calls "a complex analysis that only a law professor can appreciate." The judge adds that "these complicated legal tests usually result in upholding Second Amendment restrictions upon something akin to a rational basis test." (In a rational basis test, the law merely must be seen to have some rational relation to some state goal, and that is more properly applied to laws where no fundamental constitutional right is at issue, which is not the case with the Second Amendment, Benitez believes.)

Benitez doesn't think that's what the Supreme Court wanted when it ruled, in the 2008 Heller decision, that the Second Amendment protected an individual right to possess commonly used weapons for self-defense in the home. "It is obvious," he writes, "that the California background check laws that de facto completely block some law-abiding responsible citizens from buying common ammunition are unconstitutional." He argues that the ammo law "is not one of the presumptively lawful regulatory measures identified in Heller," and further that "an ammunition background check has no historical pedigree."

If the ammo rule burdens the Second Amendment, the judge argues, another analytical hurdle must be jumped and "the correct level of scrutiny must be selected. For that selection [another] two-step evaluation is required. The first step measures how close the statute hits at the core of the Second Amendment right. The second step measures how severe the statute burdens the Second Amendment right." By keeping lawful buyers from purchasing ammunition, the rules "directly burden the Second Amendment right directly to its core, which is the right to defend one's self, family, and home." This makes them "unconstitutional under any level of scrutiny."

Still, Benitez dabbles with existing 9th Circuit precedent, which imposes on the Second Amendment a "sliding scale of scrutiny." Since some people initially denied the right to purchase ammo do indeed eventually succeed after much effort on their part, California believes the burden is not strict enough to require anything other than "intermediate scrutiny" from courts.

Benitez responds: "The government has certainly not demonstrated that the blanket background check system will cure any disease and alleviate harm in a direct and material way without unnecessarily burdening the rights of citizens. So far, the benefit of the background check laws is that a very small number of prohibited persons have been denied authorization to buy ammunition at a licensed ammunition vendor. On the other hand, the burden is that 101,047 law-abiding citizens (plus an untold additional number who may have been discouraged by the clumsiness of the system) were unable to exercise their Second Amendment right to acquire ammunition for their firearms."

Benitez spends many pages showing the thinness of the data California used to defend the idea that the ammo laws would reduce firearms violence. He notes that in 1968 the federal government imposed a requirement for recordkeeping on ammo buys, and that nearly two decades later "the Treasury Department and the Bureau of Alcohol, Tobacco and Firearms informed Congress that the ammunition recordkeeping requirement was not useful for law enforcement. Congress then removed the ammunition regulations in 1986. The result of that national experiment calls into question the effectiveness of new state ammunition regulations."

The Appeal is Underway

With an appeal already launched in the 9th Circuit—which in the past has not exactly been prone to upholding a vigorous version of the Second Amendment—how is this decision likely to hold up?

That past performance may not be a guarantee of future results. During the Trump presidency, the 9th Circuit has undergone an ideological shift that might make its panels more likely to uphold the Second Amendment. Chuck Michel, a lawyer who serves as president of the California Rifle and Pistol Association, points to the appeals panel that earlier this month considered a previous pro–Second Amendment decision from Judge Benitez. This was in the case of Duncan v. Becerra, in which he enjoined state laws restricting weapons' magazine size. The panel's questioning, Michel reports, seemed at least somewhat sympathetic to the gun-rights cause.

But he grants that it's always risky to predict what a court panel will or won't do until a decision has been issued. We'll have to wait to see how it rules on Duncan—and then whether that's a bellwether for Rhode v. Becerra.

 

Corrections:

*The Appeals Court having already stayed the order pending final resolution was not noted in original posting of article.

**The case name was misspelled in original posting of article.

 

NEXT: Is there an express cause of action under the Takings Clause?

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  1. Heller actually got applied to something? I thought that ruling existed in some kind of vacuum.

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    2. California is by far the most fascist state in the U.S., with Minnesota close behind. This may be while the South is seeing wealth and population growth.

  2. “”If the ammo rule burdens the Second Amendment, the judge argues, “”

    Be careful not to use the word infringed.

  3. >>common ammunition

    there is uncommon ammunition?

    1. Yes. And that’s one of the legal gotcha’s. Lots of courts will not support violating ‘commonly used’ or ‘reasonable expectations’ – but by tweaking things slowly and surely, over the decades a thing stops being ‘commonly used’ and an expectation stops being ‘reasonable’ and then the courts have no issues with stomping down on it.

      Take ‘armor piercing ammunition’, for example.

      1. Also by heavily regulating something that is uncommon now, it prevents it from even becoming common in the future, thus preventing any new technology from ever being adopted

      2. This is why I’m a big fan of Palmetto State Armory. They’ve said on a few occasions that their mission is to get as many guns into as many hands as possible (scary black guns for the most part) because it’ll be hard to say they aren’t “commonly used” when there are millions of them in circulation. They aren’t the best guns on the market, but they’re affordable and quantity has a quality all it’s own.

        1. Of course there are “better” guns if you mean more expensive [BCM, LMT, DD, FN, etc,] but in my experience [I own two] PSA works. And as you say they are affordable. As are the Ruger and S&W rifles.

          1. Some of those are more expensive for a reason, but yeah price doesn’t always mean “better”. I’m by no means bashing PSA, everything I’ve ever shot that they made went bang every time without issue. I’m not an AR guy so I don’t have anything of theirs currently, but the AKs they’re making now have caught my eye and I plan on getting one when they’re available again. I’ve always been skeptical of American AKs, but PSA seems to have figured it out. I also need a 10/22 because I somehow don’t own one, so Ruger will be getting some of my money here soon too.

            Lots of people can make guns that work, I’m mostly a fan because they saw that “common use” language in court rulings and decided the best response was to turn the factory up to 11. Good on ya PSA.

    2. I would guess that any wildcat cartridge could be considered “uncommon”, as well as any literally uncommon caliber such as .300 Blackout. Also of note is that without wildcat cartridges, we wouldn’t have rounds like 10mm Auto, now often used by law enforcement agencies. Protection of “uncommon” rounds and arms is important not only to avoid “boil the frog slowly” strategies employed by statists like Becerra – it’s part of how the technologies are evolved.

  4. The San Diego newspaper said this morning that the 9th Circuit has granted a stay – they apparently worked overtime to do it – not a big surprise – so Californians still can’t buy ammo without jumping all the hoops –

    1. Fortunately, Nevada is only a day’s drive away.

      1. That same law also makes it illegal to bring in ammo from out of state. Of course, they have to see it to stop it.

        1. That’s easy though – send some CA cops over to NV to hang around gun stores and take down CA license plates. Feed the plates into the computer and set up your CHiP cars with automated license plate readers at the border and stop anyone who gets pinged.

          Let the courts sort out how legal that is in 5 or 6 years.

          1. This already happen on hwy 80. They stop people at the agg station

            1. They stop everybody at the ag stations, especially if you’ve out of state plates. The ag stations are on most of the roads into the state. A few of the minor highways don’t have them, but you’ve got to go out of your way to avoid them.

              I guess the stations are good for one-stop-cop-shopping.

            2. I think the most scrutiny I’ve ever been through at an ag station is being asked to roll down my window and asked if I had any fruit in the car. That’s happened maybe twice in several hundred times re-entering the state on road trips via I-10, I-15, and I-80.

              These days, they’re pretty much just waving most people through without even making them completely stop, and at least 1/3 of the time the checkpoints aren’t even manned anymore. Sometimes they’ll have an RV or two pulled over, or a box truck, but it’d be easy to carry 5k-10k rounds of 9mm or 223 in the trunk of a Prius without sagging the ride and you’re almost guaranteed to not get searched.

              1. Vegetables in the car?

                Just my mother-in-law, Sir.

          2. So many of the gun stores on the Vegas strip are also tourist destinations (they rent full-auto at a number of the ranges for those willing to wait in the lines to pay $5/round to run some 9mm through a MP5), the return on this would be minimal at best, and if people from L.A. who were looking to import some ammo illegally got wind of this, it’s so easy to just cab/uber to the place while your car and it’s plates never leave the hotel lot that they’d pretty quickly end up only having info on the people who just went to shoot. Up north, they’d pretty much have to go all the way to Reno/Sparks/Carson City to do this; I go to Tahoe every year and can’t remember ever seeing a gun/ammo store on the lake itself (although I’ve also never gone looking for one).

            If they really had enough concern to go to that much trouble, they’d have been doing it to catch CA people going to stores in NV to buy “high capacity” magazines, which have been pretty much unrestricted in NV since the federal ban expired 16 years ago.

  5. Well NY city and state has set the tone for future litigation. Gets to the Supreme Court, they reverse the law, gets kicked out without a ruling. Later the law will get reapplied but changed just enough to force it all through the courts again. Rinse and repeat.

    Meanwhile – innocent people who bought the “wrong” ammo, didn’t fill out all the “right” paperwork, or were caught with a magazine with too of high a capacity, are all ripe for convictions because the cops and prosecutors just don’t have enough to do I guess.

  6. “[Benitez] is disturbed that the standard to prove oneself a citizen—step one of the background check process for legally buying ammunition—requires a federal “REAL ID”–compliant drivers license not yet enforced on all Californians . . . without one, the prospective ammo buyer must also produce either a passport or a certified birth certificate.”

    That the government of California, a sanctuary state, would require us to prove we’re U.S citizens–as a prerequisite for exercising our constitutional rights–is appalling. The only rights of citizenship are the right to get a passport, the right to run for office, and the right to vote. It is understandable for the government to confirm your citizenship before you do one of those three things. It is completely unacceptable for the government to check people’s citizenship before they decide whether to violate any of their other constitutional rights.

    Our rights do not originate with the government or the Constitution–not even according to the Constitution. The idea that our rights only exist if and when the government says so is practically the definition of authoritarianism. Freed from the Constitution, California’s government would be an authoritarian state. They’d license you to speak your mind if they could, too.

    1. Preach, brother!

    2. Wait. What? Non citizens can’t buy ammo?

      Lol.

      1. What a bunch of racists.

    3. Amen, brother Schultz!

    4. “The only rights of citizenship are the right to get a passport, the right to run for office, and the right to vote. It is understandable for the government to confirm your citizenship before you do one of those three things.

      Except for voting, confirming your citizenship (or heck, even confirming your residency in the district in which you are voting) before voting is considered to be racist.

      Meanwhile, citizens are required to be fingerprinted, subjected to investigations, paying non-trivial application and processing fees, and still may not be allowed to exercise their 2nd Amendment rights unless some government lackey says “Mother may I?”

      1. Do you not know brother, this is all “ok” because guns are bad? Constitution stuff just doesn’t apply here.

  7. I really hope this application of the Commerce Clause sticks.

    That would put an end to all of the alcohol monopolies around the country as well. No more Banning out-of-state orders of wine.

    1. Alcohol is complicated. The amendment that ended Prohibition added strings. The Commerce Clause alone does not govern alcohol.

      1. Indeed. If a state wants to ban out of state orders of alcoholic beverages, the federal government is constitutionally obligated to assist.

  8. I’m glad it’s like that in California. They deserve it.

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  10. Simmer down, Doherty, we all know what’s going to happen. The 9th will overturn to lower court’s holding, and the SC will refuse to hear an appeal. Happens so regularly you can practically set your watch to it.

    1. “Will”? I think they’d overturned it by the time this was posted.

      1. They have issued a stay. However, this law is so egregious that I cannot fathom even the 9th circuit upholding it. A 1000 to 1 false-positive rate? The fact that you have to have purchased a gun before you can buy ammunition? You cannot buy ammunition for anyone else or have a loaned or inherited gun? This is quite extreme.

        The fact that you would have to run multiple background checks on the same person after they have already passed a background check should make everyone look at this oddly.

        This is also ignoring both the criminal element and self-loaders. Ammunition isn’t terribly difficult to craft. These items completely negate any possible benefits from the law.

        1. I think it doesn’t occur to a lot of the leftists in CA that more than a handful of people would deign to use tools and do the manual labor involved in loading ammo at home. Even after more than a decade living in the L.A. area, it still surprised me how shocked people looked when I moved to the west-side and would occasionally do some work on my own car within view of the general public; just carrying a couple of wrenches in my hands I felt like I’d have attracted less attention if I’d been dressed as “Master-Blaster” from “Beyond Thunderdome” complete with a live dwarf riding in a crow’s nest on my back.

  11. I think the 9th tossed this injunction before this article even hit the wires.

  12. “Second Amendment forces hope the Supreme Court will eventually tackle nationally: What is the proper judicial standard of review for Second Amendment cases?”

    Hmmmmm…..what are the chances?

  13. I’m a American citizen born in California who is not prohibited from owning firearms or ammunition.
    I can not go into a store and buy a box of ammo even with a govt issued I.D. ( My valid CA drivers license).
    Neither am I allowed to buy it in another state and bring it back.
    WTF!

  14. A good ruling, and maybe one that will stop similar silliness from spreading. Too much bad legislation spreads from California like ripples in a pond.

  15. Capturing point-of-sale ammunition data nationwide for peaceable, lawful citizens is a colossal undertaking that once again, ignores the criminals who don’t ask permission to acquire it. They steal or buy it from relatives or an underground market.

    The U.S. consumes so much ammunition that quantitative numbers aren’t available and it’s normally measured in dollars. That said, at least 10-15 billion rounds of ammunition are manufactured annually in the U.S. and about 20,000 tons of ammunition are imported.

    Here’s the thing. The proposal doesn’t include final consumption of the product. As usual, it makes no mention of how those who legally purchase ammunition use it. Generally, they use it to plink, practice, hunt and protect self and family. That leaves us in the dark regarding who, when, where and how criminals use it.

    Democrats seem determined to control freedom for peaceable, lawful citizens and avert their eyes from the criminal element. I wonder why.

  16. Stripping rights of misdemeanors?!? Hooray freedom…”

    violent misdemeanants

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