The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On April 23, the U.S. District Court for the Southern District of California issued a preliminary injunction against California's background check law for ammunition purchases. As the court found, the failed system improperly prevents lawful purchases by very large numbers of law-abiding citizens.
Starting in 2018, California prohibited consumers from purchasing ammunition by mail. Then in 2019, California forbade Californians from buying ammunition at stores in other states, and required background checks for in-state retail sales. All the new restrictions are now blocked by the preliminary injunction. Some mail-order ammunition vendors have prioritized sales to Californians, and began fulfilling orders on the evening the decision was issued.
Lead plaintiff in the case is Kim Rhode, who shoots skeet and trap, is the only U.S. individual athlete to win medals in six consecutive Olympics and the only American to win Olympic medals on five different continents. (The sole other athlete with six consecutive medals in the Olympics is Italian luge racer Armin Zoggler.) Also among the plaintiffs is the California Rifle & Pistol Association. Attorneys for the plaintiffs are Michel Associates, and their page for all the filings in the case is here.
Today, California Attorney General Becerra asked U.S. District Judge Roger Benitez for a stay of the injunction pending appeal. This afternoon, the motion was denied; the balance of the equities did not favor unconstitutionally preventing law-abiding Californians from acquiring ammunition. The Attorney General then filed a notice of interlocutory appeal with the Ninth Circuit.
Judge Benitez's opinion explains the Catch-22 that California has created for persons attempting to purchase ammunition. According to California law, only citizens may purchase ammunition. But California issues drivers licenses to "illegal aliens" (the term used in federal statutes). Millions of California citizens have drivers licenses that are indistinguishable from the drivers licenses carried by illegal aliens in California. Therefore, a standard California drivers license is insufficient for attempting to purchase ammunition. The California citizen with a California driver's license must instead obtain and present a passport or a certified birth certificate. Plaintiffs say that obtaining a certified birth certificate in California takes up to 22 weeks, while the California government promises delivery in less than 8 weeks. A passport would take even longer, since the application usually requires a certified birth certificate.
It is doubtful that requiring law-abiding Californians to spend weeks or months obtaining alternative identification is motivated by a sincere determination to keep ammunition out of the hands of illegal aliens. Given that the legislature has declared California to be a sanctuary state, an illegal alien who did try to illegally buy ammunition would presumably not be prosecuted.
The district court noted the plight of David Dodd, a retired veteran. Because he was adopted at a young age, and does not know his biological father's full name, he cannot obtain a certified birth certificate. And thus California prevents him from purchasing ammunition at all.
Six hundred and forty thousand Californians who apparently did have passports or certified birth certificates did attempt to purchase ammunition. Of those, 188 were properly rejected because of disqualifying condition found in the California background check database (e.g., felony conviction, certain misdemeanors, mental health holds). Additionally, 101,047 lawful applicants were improperly blocked.
In other words, 99.8% of ammunition check denials were erroneous.
Many lawful would-be buyers were blocked because they are not in California's database of gun owners. But there is no legal requirement that a person must be in the database in order to possess ammunition; the California gunowner registration database is compiled by harvesting records of firearm background checks; persons who acquired their firearms before the registration system was imposed are lawful owners who are not in the registry. (The registry was created for handguns in 1990 and for long guns in 2014.)
Other buyers were rejected because of identifier mismatches, such as currently living at a different address than they did when they bought a firearm years before.
It might not be accurate to consider system of mass false denials to be merely the result of incompetence. Ever since the gun control lobbies were founded in the 1970s, they have endeavored to place every possible obstacle in the way of lawful firearms ownership and use, as part of a long-term strategy to drive down the number of gun owners, as I detailed in a recent article for Colorado Politics. One of the most activate anti-gun litigants, the Gifford organization, moved to file an amicus brief in defense of the quasi-prohibitory ammunition law, although Judge Benitez denied the motion. (Practice tip: appellate courts are generally lenient in accepting amicus briefs and have procedural rules for filing them; trial courts rarely have amicus rules, and some trial judges do not favor amicus briefs.)
As Judge Benitez's opinion explains, buyers who are improperly rejected must then proceed through an opaque and slow process to ask the California Department of Justice to put them on its list of persons who allowed to purchase ammunition.
In effect, the California DOJ has inverted the normal system of background checks to turn it into a system of presumptive denial. In a normal background check system, such as the National Instant Check System run by the FBI, the buyer's name is checked against a list of prohibited persons (e.g., persons with certain criminal convictions). Unless the buyer is on the prohibited list, the sale proceeds. But in California, unless the buyer is on the California registry of gun owners, and lives at the same address as when the buyer purchased a firearm years before, the sale is denied.
As an alternative to the above dysfunctional California system, a would-be ammunition buyer may pay an extra fee for a different background check. There were 19,599 Californians who chose this route. Of them, 570 were properly denied, and 342 were improperly denied. Of those who were approved, a quarter were approved promptly, while the rest had to wait one to three days for an approval. The functional check costs $19, while the dysfunctional check costs only $1. If you pay the $19 for the mostly-functional check on Monday and are allowed to purchase the ammunition on Thursday, the state should put you on the list of approved buyers, so you could buy more ammunition the next week and use the $1 check. But the state government refuses to add people to pay the extra fee to the list of approved buyers.
The chilling effect of the California system is powerful. Before the system was implemented, the state estimated that of the 4.5 million people in its gun owner registry, about 3 million would purchase ammunition 4 of 5 times a year–resulting in about 13 million ammunition background checks annually. The actual number has been far less: about 630,000 in the seven months since the retail limits went into effect on July 1, 2019. In other words, the new California system seems to have deterred or prevented over 2 million law-abiding Californians from purchasing ammunition.
Starting on July 1, 2025, the dysfunctional ammunition check system will be extended to gun parts (Calif. AB 879, signed into law by Gov. Newsom in 2019), thus serving to prevent law-abiding Californians from replacing a worn-out barrel, buying a better trigger, and so on.
In issuing the preliminary injunction, Judge Benitez found that plaintiffs had a strong likelihood of success on the merits. The right to keep and bear arms necessarily includes the right to acquire ammunition, as the Ninth Circuit and all other courts that have examined the issue have held.
A law that improperly prevents huge numbers of law-abiding persons from acquiring ammunition is straightforwardly unconstitutional under the methodology used by the Supreme Court in its leading Second Amendment cases, District of Columbia v. Heller and McDonald v. Chicago, the judge noted.
Rather than copying the methodology of Heller and McDonald, most of the federal circuit courts, including the Ninth, have adopted a complicated interest-balancing test, as urged by Justice Breyer in his Heller dissent. The California quasi-ban on ammunition purchases fails that test as well, according to Judge Benitez. Because the law is completely novel in American history, it does not qualify for any presumption of constitutionality. (Heller said that certain "longstanding" laws, such as "conditions and qualifications" for firearms stores, were "presumptively" constitutional.)
A de facto ban on ammunition acquisition by law-abiding citizens is "the severest burden" on the Second Amendment right. Imposing this burden on over a hundred thousand lawful citizens is unconstitutional per se. Of the persons who are improperly denied in a given month, only 40-48% are eventually able to convince the California DOJ to let them buy ammunition later. Even for them, the wrongful denial of their right to purchase ammunition for weeks or months is still is significant constitutional injury.
If the burden were instead assumed to be relatively modest, then the often lenient standards of intermediate scrutiny might apply. Yet under intermediate scrutiny, the Attorney General still failed to carry his burden of proving that the law is appropriately "tailored" for a reasonable "fit." To the contrary, the mass numbers of false denials show that the law is very badly tailored.
Moreover, a recent study by a gun control research center created by the California legislature showed that California's firearms purchase background check system, implemented in 1991, had no discernible benefits in reducing suicide or homicide. The study also reported that repeal of background check systems in Tennessee and Indiana had no statistically discernable adverse effects. Alvaro Castillo Carniglia, et al., California's Comprehensive Background Check and Misdemeanor Violence Prohibition Policies and Firearm Mortality, 30 Annals of Epidemiology 50 (2019).
There is only one policy enshrined in the Bill of Rights. Guns and ammunition in the hands of criminals, tyrants and terrorists are poisonous; guns in the hands of law-abiding responsible citizens are the antidote. To give full life to the core right of self-defense, every law-abiding responsible individual citizen has a constitutionally-protected right to keep and bear firearms and ammunition. No legislature or popular vote has the constitutional authority to dictate to a citizen that he or she may not acquire ordinary and popular ammunition for his or her guns. Nor may the acquisition process be made so unreasonably difficult that she simply throws up her hands and surrenders the right. Plaintiffs have made a sufficient showing of their likelihood of succeeding on the merits of the Second Amendment claims.
Plaintiffs also challenged the ammunition restrictions under the dormant commerce clause, since the restrictions favor California vendors over those from other states. Non-California ammunition vendors can sell to Californians only by: 1. opening a store in the state, or 2. convincing a California ammunition vendor to act as an in-state retailer for the out-of-state product. A similar discrimination between New York in-state and out-of-state wineries was held unconstitutional by the U.S. Supreme Court in Granholm v. Heald, 544 U.S. 460 (2005).
If California had a functional system of ammunition background checks, it could require non-California vendors to use the same background check system for California residents that California vendors do. "The isolationist burdens on interstate commerce created by California's Proposition 63 appears at this early stage of litigation to far outweigh whatever benefit it is designed to achieve."
Another element in preliminary injunctions is irreparable injury. As with the First Amendment, the loss of Second Amendment rights for even a short time is an irreparable injury. Indeed, "The right to keep and bear arms is the insurance policy behind the right to life. If a state regulation prevents a citizen from protecting his life, his other constitutional rights will be superfluous. The right to keep and bear arms protects both tangible and intangible interests which cannot be compensated by damages. . . When one needs to defend herself, family, or property right now, but is defenseless for lack of ammunition, it is the heaviest kind of irreparable harm."
A third factor in preliminary injunctions is the balance of harms. The Ninth Circuit has rejected the view that temporary non-enforcement of a state statute pending trial on the merits is such a terrible hardship that it outweighs the continuing harm of denial of citizens' constitutional rights.
The final factor in preliminary injunctions is the public interest. "It is always in the public interest to prevent government from violating a citizen's constitutional rights." This is especially true when the harm suffered by the public is denial of necessary tools for lawful defense of life.
In the current pandemic, "Courts are limping by while police make arrests for only the more serious crimes. Maintaining Second Amendment rights are especially important in times like these. Keeping vigilant is necessary in both bad times and good, for if we let these rights lapse in the good times, they might never be recovered in time to resist the next appearance of criminals, terrorists, or tyrants."
In conclusion, Judge Benitez points out that the preliminary injunction does not mean that all background checks on ammunition purchasers are necessarily unconstitutional. What is unconstitutional is California's often-prohibitory system:
If the state objective is to make it extremely difficult, if not impossible, for its law-abiding citizens to purchase protected ammunition, then this law appears to be well-drafted. However, if the genuine object is to keep ammunition out of the hands of those who should not be able to buy it, perhaps the State could create a database (that would include persons prohibited, i.e., aliens unlawfully present, felons, and others) and simply make that information available to sellers by cross-checking with the magnetic strip on a standard driver's license and by allowing out-of-state vendors the same ability to engage in commerce as it does California vendors.
The next stage of this case will be the interlocutory appeal to the Ninth Circuit. There, some gun control groups and advocates will reveal their true character. Rather than urging the California legislature to adopt a functional and fair system for ammunition background checks, they will demand the perpetuation of a grossly abusive system for denying law-abiding citizens the tools to defend themselves and their families.