Guns

Ninth Circuit Panel Stays (by 2-1 Vote) Injunction Against California Ammunition Restrictions

|The Volokh Conspiracy |

From Rhode v. Becerra (9th Cir.) (by Judges Barry Silverman and Jacqueline Nguyen), released yesterday:

This appeal challenges the district court's preliminary injunction prohibiting the enforcement of California restrictions on the purchase of ammunition on Second Amendment and dormant Commerce Clause grounds. The California Attorney General moves for a stay of the injunction pending appeal.

In evaluating a motion for stay pending appeal we consider four factors: "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies."

Appellant [the AG] satisfies the first factor because he has "show[n], at a minimum, that [he] has a substantial case for relief on the merits." As the Supreme Court recognized in Heller, Second Amendment rights are not unlimited. See District of Columbia v. Heller, 554 U.S. 570, 626-27 (2008) ("[N]othing in our opinion should be taken to cast doubt on … laws imposing conditions and qualifications on the commercial sale of arms."); see also Jackson v. City & Cty. of San Francisco, 746 F.3d 953, 970 (9th Cir. 2014) (Second Amendment right to purchase ammunition "may be subjected to governmental restrictions which survive the appropriate level of scrutiny").  The dormant Commerce Clause does not prohibit a state from enforcing a law that does not "discriminate[] against or directly regulate[] interstate commerce" and is not "clearly excessive in relation to the putative local benefits."

Appellant has also shown sufficient likelihood of irreparable harm absent a stay, and that the remaining factors favor a stay. The provisions of state law at issue were in effect for more than nine months before the district court's preliminary injunction.  Appellees do not contend that they were unable to purchase ammunition lawfully and with minimal delay while those provisions were in effect….

Judge Daniel Collins dissented:

In my view, Appellant has not made a sufficient showing on the merits, and the balance of hardships also weighs against a stay here.

[1.] The Second Amendment, which "is fully applicable to the States," protects "the right to keep and bear arms for the purpose of self-defense." This Second Amendment "right to possess firearms for protection implies a corresponding right to obtain the bullets necessary to use them." Because the challenged scheme for requiring background checks for ammunition purchases thus directly "burdens conduct protected by the Second Amendment," Appellant must show that it satisfies the appropriate level of constitutional scrutiny…. Because I conclude that Appellant has failed to make the requisite strong showing on the merits of his defense of the ammunition background check system under intermediate scrutiny, I have no occasion to decide whether a higher level of scrutiny should be applied.

[a.] As a threshold issue, Appellant argues that Plaintiffs lack standing to bring a facial challenge. According to Appellant, Plaintiffs' contention that the background check system fails intermediate scrutiny impermissibly rests in large measure on how the law operates as a whole, rather than as applied only to Plaintiffs.

This argument appears to misconceive the nature of intermediate scrutiny as applicable here. Our intermediate scrutiny standards in the Second Amendment context have "looked to the First Amendment as a guide" and similarly require a showing of a "significant, substantial, or important" objective and "a reasonable fit between the challenged regulation and the asserted objective." Even in the commercial speech context, where the expansive overbreadth doctrine does not apply, an "attack upon a commercial-speech restriction on narrow-tailoring grounds" requires some consideration of how the law operates as a whole, and therefore, in a successful challenge, "the rationale of the narrow-tailoring holding may be so broad as to render the statute effectively unenforceable." Board of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 483 (1989); see also Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N.Y., 447 U.S. 557, 565 n.8 (1980) (expressly distinguishing between the overbreadth doctrine and an intermediate-scrutiny narrow-tailoring challenge, and noting that, in the latter type of challenge, "to the extent the limitations are unnecessary to serve the State's interest, they are invalid").

Applying comparable principles in the Second Amendment context, I conclude that, at least at this stage, Appellant has not made a sufficient showing that the district court erred in employing a broader focus in evaluating Plaintiffs' contention that they (including those whom the organizational plaintiff represents) are being impermissibly subject to burdens by regulations that lack a sufficient reasonable fit to survive intermediate scrutiny.

[b.] Appellant's motion does not establish a reasonable probability of success under intermediate scrutiny. For purposes of this motion, I assume that California has a substantial interest in ensuring that ammunition does not fall into the hands of persons prohibited under California or federal law from possessing it, such as felons, aliens unlawfully present in the United States, and "mental defective[s]." California law and/or federal law already impose criminal penalties on such possession, and both impose systems for conducting background checks in connection with purchases of firearms. The question is whether the additional restriction that California has imposed here, i.e., generally requiring background checks before each purchase of ammunition, has been shown by Appellant to be "reasonably tailored" to providing further material support to that goal in light of its impact on constitutional rights. Here, the factual findings of the district court indicate a particularly lopsided imbalance between the claimed benefits and burdens.

The district court found that, through January 2020, there were some 754 instances in which a prohibited person was prevented from purchasing ammunition through California's ammunition background check system, and approximately 101,047 instances in which "residents who are not prohibited persons … failed a background check."  Appellant argues that the district court apparently overlooked the possibility that many of these instances involved the same person failing on multiple occasions, and Appellant contends that when that factor is considered, the court's number overstates the "number of unique individuals" involved by about 25%. (The evidence cited by Appellant on this point suggests that he thinks the number should instead be about 81,112 persons.) Appellant also emphasizes that many of these 81,000 or so persons were subsequently able to pass a different, more cumbersome form of background check and to purchase ammunition.

But as the district court noted, "between 53.5% and 60% of residents who are rejected each month still ha[d] not been authorized to purchase ammunition" as of January 2020, and "the resolution process" for those who had succeeded was "hardly quick." Taking these adjustments into account indicates that, through January 2020, approximately 750 prohibited purchasers had been stopped from buying ammunition but roughly 45,000 or so "residents who are not prohibited persons" had also been prevented from doing so. { Appellant's motion speculates that, for the approximately 30% of rejections that occurred due to the would-be purchaser's lack of a firearm record in the relevant state system, "it is possible" that some subset of those persons "were prohibited persons." Appellant points to no evidence that substantiates that speculation, much less attempts to quantify it.} And beyond this disparity in impacts, the district court also noted the system's apparent effect on the overall volume of ammunition transactions: although California had forecast that "approximately 13 million ammunition transactions" would occur in one year, the number of background checks conducted using the two primary methods was "only 635,856" over a seven-month period.

The purpose of the tailoring requirement is to ensure that the benefits of a regulation are not disproportionate to the burdens on constitutionally protected conduct. Without endorsing everything that the district court said in its voluminous opinion, I agree that the sort of stark imbalance between benefits and burdens here suggests poor tailoring.

[2.] Although the Commerce Clause is a positive grant of power to Congress, the Supreme Court has held that there is a "negative" aspect to the clause that prohibits "state laws that unduly restrict interstate commerce."

We analyze dormant Commerce Clause claims using a "two-tiered approach." Under the first tier, we ask whether the state law "either discriminates against or directly regulates interstate commerce." If the state law does either, it is "virtually per se invalid and will survive only if it advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives." Under the second tier, we ask whether "the burden [the state law] imposes on interstate commerce is clearly excessive in relation to the putative local benefits." I do not believe that Appellant has made a sufficiently strong showing on his claim that California's restriction on direct interstate sales of ammunition is consistent with the dormant Commerce Clause.

The district court concluded that, by requiring that all sales of ammunition "occur in a face-to-face transaction," California has both discriminatorily favored in-state ammunition merchants and has imposed burdens on interstate commerce that "far outweigh whatever benefit it is designed to achieve." Particularly given Appellant's likely lack of success concerning the background check system (which might otherwise be thought to provide some arguable justification for the face-to-face requirement), Appellant has not shown at this stage that he has a fair chance of success in his contention that the district court erred in finding that the challenged provision violates the Commerce Clause.

[3.] Even if I were to conclude that Appellant has at least raised "serious legal questions" on appeal, I do not think that he has made the concomitant showing that "the balance of hardships tips sharply in [his] favor." I do not disagree with Appellant's contention that "a state suffers irreparable injury whenever an enactment of its people or their representatives is enjoined," but it is likewise true that the loss of constitutional rights "generally constitute[s] irreparable harm."

Particularly given the very lopsided allocation of burdens and benefits occasioned by California's wholly novel effort at ammunition background checks, the balance of equities, if anything, tips sharply against Appellant here.

For these reasons, I would deny the request for a stay of the preliminary injunction. I respectfully dissent.

To read more about the district court decision that's being appealed, see this post by David Kopel.

NEXT: Josh Trank’s Capone Is a Portrait of a Director in Meltdown

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. “We analyze dormant Commerce Clause claims using a “two-tiered approach.” Under the first tier, we ask whether the state law “either discriminates against or directly regulates interstate commerce.” If the state law does either, it is “virtually per se invalid and will survive only if it advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives.” Under the second tier, we ask whether “the burden [the state law] imposes on interstate commerce is clearly excessive in relation to the putative local benefits.”

    Which is exactly the concern I have with Maine Dictator Janet Mill’s residents-only policy on hotel reservations.

  2. So, if a restriction is passed, and it prevents 80,000 to 100,000 people from doing something they are constitutionally allowed to do, in order to stop 754 people from doing something they are disallowed form doing.

    Is it a good law?

    Discuss.

    1. It’s having the desired effect – keeping a lot of people from buying ammunition.

      1. It would seem that a law that was designed to make it so a lot of people who should be able to lawfully purchase ammunition were denied that ability, would be in violation of their second amendment rights….

        1. Exactly. – Read the Koppel article linked above.

          The first check is a check of a list of permitted persons. If someone fails that background check they can opt for a different one that costs a lot more but if they pass their name is not added to the good list.

          The Feds on the other hand maintain a list of prohibited persons and if a name is not on that list then they are clear ro make a purchase.

          The California system is designed to deny as many purchases as possible and make it harder for people to overcome the obstacles.

          1. The California system is designed to deny as many purchases as possible and make it harder for people to overcome the obstacles.

            Sounds like voter ID laws, but the sides are flipped.

            1. Indeed. In fact, the decision, and the logic (IE, tens of thousands prevented from legally doing something they were entitled to, just hundreds stopped) reminded me a lot of the Kansas voter ID case and logic there.

              Of course, for some reason, THERE the court struck down the law.

    2. Of the 754, I wonder how many decided to straighten up, fly right, and forego whatever crime they planned to use the ammo for, and how many just got ammo by some other means.

      1. I suspect, that like with firearms background checks through the NICS, that the prohibited persons are often enough people that have no idea that they are a prohibited person. People with an old domestic charge, or something like that, unaware that they can’t buy guns.

    3. By analogy, don’t most folks agree with the proposition that it’s better to let 10 guilty men go free than have one innocent person in prison? In this case, as opposed to a 1 in 10 ratio, it’s a 1 in 106 to 132 ratio at that. Or is it different with guns.

      1. Slight edit. You need to reverse your ratios in order to fully make sense.

        IE, “In this case, as opposed to a 1 in 10 ratio, it’s as 106 in 1 ratio

        1. ” it’s as 106 in 1 ratio”

          I’d like to see 106 women denied an abortion.
          It’d be interesting….

      2. You premise is backwards.

        If it is better to let 10 guilty people go free that convict 1 innocent person

        California has decided to deny 100 innocent people a right so 1 person is legitimately prevented from doing something they are not allowed to.

        Of the 700 odd people legitimately denied I’d wager that very few pose an actual threat.

        Finally California has decided to deny the ability to purchase ammunition to people who are illegally in the country but will fight to allow those same people to stay in the country illegally.

    4. “So, if a restriction is passed, and it prevents 80,000 to 100,000 people from doing something they are constitutionally allowed to do, in order to stop 754 people from doing something they are disallowed form doing.”

      80,000 to 100,000 women are prevented from having an abortion in order to prevent 754 women prevented from having an abortion doing so.

      1: Would this be acceptable?
      2: Why are the 754 women being denied a Constitutional right?

      Convicted felons are one thing, but the Brady Bill dramatically expanded the categories of excluded persons, and I’d argue that it did so unconstitutionally.

      1. How would that hypothetical even work?

      2. “Convicted felons are one thing”

        Make that felons convicted of a crime of violence and I’d agree. But the law as it presently stands bars both Martha Stewart and a convicted armed robber from possessing guns.

    5. Its all a facade.
      We all know there are people that are 100% opposed to citizens having guns/rifles of any type, let alone use them. These people are represented by a large enough group of legislators and the governor that they push through laws that chip at the edges of what gun owners can do.
      This is the same mentality that requires abortion clinic doctors to have privileges at the local hospital. They are not trying to make it safer for the women (even if that is what they claim publicly).
      To not recognize/acknowledge this is disingenuous.
      The same mentality makes the drinking age 21… In that case, mainly because 18-21 year olds don’t vote (and don’t file lawsuits).

    6. Additionally, they’re on pace for a little over 1 million background checks a year, when they were anticipating 13 million.

      People are buying less because it’s a hassle, which is also part of what they want.

    7. Isn’t this the debate with voter rights and legislation such as IDs, registration deadlines, polling place locations, and availability of absentee voting?

  3. “The provisions of state law at issue were in effect for more than nine months before the district court’s preliminary injunction.”

    I found this particular line a crock of shit from the court. The wheels of justice turn very slowly. Regardless of the rightness or wrongness of the law, you’re using the fact that the process to go to court is so slow, as a reason to leave the law in place? So petty.

    1. Had the system not been in operation for some time the court likely would have ruled an injunction was premature as it was not clear that the system needlessly burdened a citizens rights.

      Heads I win.
      Tails you lose.

    2. No more senseless than saying a law is unconstitutional if it burdens possession of a weapon in common use, and then arguing that the current restrictions on machine guns are fine, because they’re not in common use (mainly due to the federal law that unconstitutionally burdened their possession a long time ago when they were).

    3. Kalak,
      Its easier to rebut something when you quote only half of it. The half you omitted:

      “Appellees do not contend that they were unable to purchase ammunition lawfully and with minimal delay while those provisions were in effect.”

      Before you switch to attacking the complete rationale, please either acknowledge the misleading quote or explain to me how I’m confused (a distinct possibility:-). Thanks.

  4. The Second Amendment, which “is fully applicable to the States,” protects “the right to keep and bear arms for the purpose of self-defense.”

    I got some bad news for you, Judge.
    The second amendment says nothing about WHY we can keep and bear arms, so the ‘purpose of self defense’ part is bullshit.
    This is an infringement, pure and simple, and unconstitutional.

    1. Sure it says so. It is to help create a well-regulated militia, being necessary to the security of a free state.

      So everyone should have their guns, so they can form this militia straight away, and, specifically, so government cannot deny arms, which impacts this and advantages wannabee and actual tyrant kings.

      1. Don’t for get the ‘Keep” part.
        Remember the Battles of Lexington and Concord were fought because the Government attempted to seize weapons the militia had gathered for collective self defense.

        I’m not sure how widespread it was but in Europe the Kings built armories and stockpiled weapons to be issued when he called forth the militia to defend the kingdom. Only some people (generally nobles) had the right to bear arms otherwise.

  5. As the Supreme Court recognized in Heller, Second Amendment rights are not unlimited. See District of Columbia v. Heller, 554 U.S. 570, 626-27 (2008).

    Funny that this is the only part of Heller that the Ninth ever follows.

    1. I’m tired of lower courts quoting that to justify upholding ANY limit.

      Liberal Jews should never be allowed near any court system. They’re evil, disgusting, ungodly people who seek to undermine Western society.

      1. Those Vietnamese Jews may be the sneakiest of all.

        1. Silverman wrote the opinion. And I’ve written extensively on the danger of flooding the West with Asians as well. While they’re law abiding unlike many other immigrants, they don’t seem to cherish individual liberty the way Westerners do.

    2. The way lower courts make that citation you would think that was the only question that Supreme Court answered in Heller.

      1. IMHO, never before has dicta been cited so much by so many. Amazing.

  6. SCOTUS will bitch-slap the Nutty Ninth once again.

  7. I know SCOTUS usually doesn’t get involved in preliminary relief, but here I think they might. Considering the denial of relief doesn’t produce any binding precedent I would take it up and see what happens.

  8. If the background checks are not a serious burden, then California should have no problem with the feds requiring the same procedures for voting for federal offices.

Please to post comments

Comments are closed.