Federal Court Strikes Down California Law Requiring Ammunition Purchase Background Checks
“California’s new ammunition background check law misfires and the Second Amendment rights of California citizens have been gravely injured.”
The myriad way state and local governments try to strip away Second Amendment rights is maddening. And almost always, the restrictions come with benign sounding names and acronyms hiding the agenda, like New York’s S.A.F.E. Act (Secure Ammunition and Firearms Enforcement Act of 2013), a mindblogging mix of requirements meant to make purchasing and owning guns difficult.
In California, the state imposed a background check requirement for the purchase of ammunition, an unprecedented move.
It was done via ballot initiative, Proposition 63 (the “Safety for All Act of 2016”) combined with various legislative actions. A federal judge in San Diego (Judge Roger T. Benitez, a George W. Bush appointee) has just issued a preliminary injunction halting enforcement of the law.
The Order (pdf.) has some really interesting language, kind of ‘stand up and cheer’ stuff. Here are some excerpts:
The experiment has been tried. The casualties have been counted. California’s new ammunition background check law misfires and the Second Amendment rights of California citizens have been gravely injured. In this action, Plaintiffs seek a preliminary injunction enjoining California’s onerous and convoluted new laws requiring ammunition purchase background checks and implementing ammunition anti-importation laws. For the reasons that follow, the motion for preliminary injunction is granted.
Cheering yet? Keep reading.
The purported state interest to be achieved by these new laws is keeping ammunition out of the hands of prohibited Californians. These new laws are constitutionally defective for several reasons. 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.
The Order then goes through the myriad of requirements under the law that burden doing what always (until 2016) was a routine ammunition purchase.
For the last 170 years, California citizens were able to purchase wanted or needed ammunition without background checks. They could order ammunition over the internet and from vendors outside the state. Today, the first state in the nation to do so, California extends the idea of firearm background checks toammunition purchasers.1 2 In other words, every time a person wants to buy ammunition legally, a licensed ammunition dealer must first conduct a California Department of Justice background check in a face-to-face transaction….
A California resident who seeks to buy firearm ammunition must first pay for and pass an electronic background check each time he or she wishes to make a purchase. And a resident may not purchase from vendors outside of California, whether in person or through an internet transaction, unless the ammunition is delivered directly to a California-licensed ammunition vendor, whereupon the resident must then pay for and pass the background check in a face-to-face transaction. Id.; § 30314….
Proposition 63 has constructed an unnecessarily complicated maze that all ammunition purchasers must navigate….
* * *
The majority of citizens who use common ammunition do so for lawful purposes, including self-defense. Under Heller and McDonald, that is all that is needed for citizens to have a right under the Second Amendment to acquire and keep common ammunition. Using the simple Heller test, it is obvious that the California background check laws that de facto completely block some law-abiding responsible citizens from buying common ammunition are unconstitutional.34 Under the simple Heller test, judicial review could end right here….
In this case the California state statutes not only burden the core of the Second Amendment but often impose upon the core the severest burden – a complete ban. It is true that many have been able to buy ammunition. But at least 101,047 or 16.4% of applying citizen residents have not. Under this law, an inexplicably large number of firearm owners are suffering the severest burden. Because a severe restriction on the core right of self-defense amounts to a destruction of the Second Amendment right, it is unconstitutional under any level of scrutiny….
The court then went through a lengthy analysis of the evidence showing that the ammunition restrictions do not even accomplish the goal of keeping guns out of the hands of criminals.
The court concluded:
Together, the background check requirement for all ammunition purchases in California and the anti-importation provisions that prohibit direct sales to residents often effect a complete statutory barrier to the lawful purchase of ammunition. Moreover, the provisions are interlocking and derive from the same section of Proposition 63. See §§ 8.1 through 8.16. The anti-importation provisions are not severable from the ammunition background check requirements. Even if only one part was unconstitutional both parts would need to be enjoined. But severability does not matter here, as both parts fail constitutional muster and require injunctive relief….
Law-abiding citizens are imbued with the unalienable right to keep and bear firearms along with the ammunition to make their firearms work. That a majority today may wish it were otherwise, does not change the Constitutional right. It never has. California has tried its unprecedented experiment. The casualties suffered by law abiding citizens have been counted. Presently, California and many other states sit in isolation under pandemic-inspired stay-at-home orders. Schools, parks, beaches, and countless non-essential businesses are closed. 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.
If you are not cheering now, then leave. Immediately.
Is it over? It’s never over. The California files an ex parte emergency motion for a stay pending appeal, which the judge rejected.
Here the Attorney General focuses on the possibility that a prohibited person may acquire ammunition. Buying ammunition is something that prohibited persons have managed to accomplish for 170 years and these new laws show little likelihood of success of preventing prohibited persons from unlawfully possessing future acquisitions. This Court’s focus is on the 101,047 + law-abiding, responsible citizens who have been completely blocked by the operation of these laws. Without an injunction, these law-abiding individuals have no legal way to acquire the ammunition which they enjoy the constitutional right of possession. These law-abiding individuals whose numbers are vast have no way to lawfully acquire ammunition to defend themselves, their families and their homes. The injunction restores that right.
California now has filed an interlocutory appeal, so expect a motion for a stay in the 9th Circuit.
The new 9th Circuit, with plenty of Trump judges. So the Second Amendment may get a favorable appellate hearing, depending on the judges on the panel.
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I hope javier bacerra is stupid enough to push the issue. The guy is the biggest idiot to ever be CA AG. I’m predicting more of CA’s draconian anti-2A laws to be crammed back in becerra’s face.
He’s pretty stupid, but even more radical. We can thank Stanford University and the Stanford Law School for this anti-American creep.
Bracero has already filed with the 9th Circus, after his request for a stay was rejected the same day he filed it.
it’s a page and a half of “LOLGF” and a thing of beauty.
Maybe we can get traitors Feinstein and Pelosi in the next shot with him.
San Franciscans thought Feinstein was a ghoul making an unwarranted power grab in 1978 squatting over the still warm bodies of Harvey Milk and the mayor.
They must have been right?????
Obviously some were right. The rest continued to vote for her.
What is LOLGF? Thank you.
LOLGF = “laugh out loud” plus the salty admonition to “get f*ed”
That’s saying a lot, considering he replaced Kamela Harris…
She just might have been the dumbest person ever to be attorney general in California. Though that’s not saying much.
Now she is competing with barbara boxer for dumbest senator in the history of california.
Sadly though, he uses taxpayer money to fight in court to put the crews to the taxpayers. This should be more personal for all these traitors!
Refreshing decision. If we can just get more like this on illegal aliens, travel bans, etc.
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I hope this works.
America became great not because of what government was enabled to do, but rather because of what government was prevented from doing. For an informative 30-minute video on this point, type “Overview of America – Georgia Constitution Party”
Thanks Red, yep that is the one.
Nope, sorry it didn’t work.
Professor: thanks for poasting this. i mentioned to you back in January at the shindig that my better 2/3rds is one of the plaintiffs.
needless to say, we will be buying ammo on line this weekend.
for those interested, you can follow the case here, and read all the filings.
Wow! A judge basing his decision based upon The Bill of Rights? Oh are the Progs going nuts on this. Add to that is how many on the Left personally found out that buying a firearm wasn’t as easy as they thought with all the laws THEIR representative kindred spirits put in their way. It ain’t over… it is never over…Jefferson and Franklin were right.
lots of idiots here in #Failifornia were shocked when the found out what they had to go through to purchase a firearm and/or ammo here in @Failifornia, according to the toy store folks i know…
I have to admit to experiencing a certain small amount of glee when I read the article on the liberals trying to purchase a firearm.
Every time I read “Again, no one working at this shop voted for these laws. Perhaps someone you know did, and you could discuss it with them?” I about lost it.
i would also note that this is the same judge who ruled the magazine ban illegal.
unlike there, where he granted a stay, to ensure that zeks here who dared to buy magazines would be protected, since it seemed likely that someone at the 9th would issue one, w/o said protections, this time it would seem he feels as if his ruling is on more solid ground.
and the magazine lawsuit is still grinding forward:
I suppose we can expect a new unconstitutional law banning guns/ammo in the very near future. They will not stop until there is price to pay, personally, for legislation that is clearly unconstitutional.
The legitimacy of any California election, save the most local Republican election, is dubious at best. It has little to do with the amount of illegals. The democrats have complete control of the vote counting and most of the precincts. The only remedy is to sweep the state clean of illegals, democrats, and H’wood dead-enders. The hard way. It must happen someday or America is lost. The infection has spread to NV, OR, WA and now CO. Soon MT and ID will become hopelessly infected.
The CA state total collapse of their revenue – which they are 100% accountable for – is a good start.
Businesses must be encouraged to flee corrupt CA, IL, NY, MA, VI, ETC.
Truer words never spoken, with the possible exception of Hollywood. There are a substantial number infected with TDS, that may prove fatal, however I would venture a guess that many are like a willow tree and just sway whatever way the wind is blowing that day. No real conviction, few substantial thoughts, just an abject devotion to stupidity.
They will not stop until there is price to pay, personally
THIS. Always ^^THIS^^.
Reminds me of the old joke about a junior member of a law firm who was sent several states away to argue a case. When the judge ruled in his favor, he was so glad he immediately sent a telegram back to the firm.
JUSTICE HAS TRIUMPHED
The firm wasted no time in replying.
APPEAL AT ONCE
We could use a bit of that in Massachusetts.
We don’t have to go through NICS for ammo, but we can’t have any shipped in. Even components (cases, bullets, etc) are much harder to get than they should be, though everybody realizes that even the most energetic criminal isn’t going to get out his reloading press and assemble a batch of ammo just so he can rob a gas station.
Can’t have any shipped in? That’s a state restricting interstate commerce!
Precisely, but it is true.
I am fondling a serial-numberless 9mm 1911 loaded with internet ammo as I type. In a Republican state.
gotta admit that was some “hell yeah” language.
Vote to empower and to ensconce Dhimmi-crat totalitarians in office, reap totalitarian consequences. As sure as the day is long.
Hey DEMS you can’t touch this!
The dem party may not have invented the tactics of Jim Crow, but they certainly perfected them during reconstruction. Now they have replaced blacks with gun owners and the beat (down) goes on.
Not just gun owners, any white male, unless they identify as a female. Me, I identify as a gun owning, white, male, Army vet, adult who treasure his guns and has a real bead attitude towards any who would even attempt to infringe on my God given rights!
Anyone care to explain how a state has the power to restrict rights guaranteed in the national Constitution? Seems that our Constitutional rights should be the same throughout the country
Ty Mark, 63 million dollar question..
Yes. And no.
Originally the Bill of Rights was only intended to be restrictive of the federal gov’t. Just as it only structured the federal gov’t. There are only a handful of restrictions on the states written into the Constitution.
And the 10th Amendment very clearly left most things up to the states.
However, the 14th Amendment came along, and the Supreme Court gave us the “incorporation doctrine”. That applied all of the Bill of Rights directly to the states, instead of relying on their state constitutions to protect the rights of their citizens.
So, to explain, a state has the power to do a lot of things the federal gov’t can’t because they are sovereign in their own right. That’s the point of our federal structure.
The national gov’t took a bunch of that independence away with the 14th Amendment. And now rights are supposed to be uniform.
That was about the most concise way I’ve ever seen this explained. But as an example when I cop “reads someone their rights” those are rights in the us bill of rights where the second amendment resides. Same pool of rights yet we’ve allowed states and municipalities to cherry pick which ones they agree with.
That’s the legal explanation.
The logical explanation is that the Bill of Rights doesn’t prevent Congress from infringing upon citizens’ rights just so the States can. The BOR’s existence is evidence that its authors presumed State citizens had certain rights that would, in turn, need protection from Congress. It was presumed that they would be preserved by the States themselves. Indeed, the constitutions of most States have statements that are similar (if not identical) to the exposition of rights found in the BOR. Some states have statements in their constitutions that are even more expansive, less ambiguous, and far more difficult to “interpret” against their plain meaning.
However, Article VI states:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The BOR was adopted as the first ten amendments to the Constitution, making them also “the supreme Law of the Land,” and binding upon “the Judges in every State.” Additionally, State law that contradicts the declaration of rights in the BOR, being “(some)Thing in the…Laws of” a “State” that are “Contrary” thereto have no standing. Article VI had the effect of obligating the States to respect the Bill of Rights.
The purpose of the 14th Amendment was to apply the protection of the Bill of Rights to people whose legal status was uncertain – the freed slaves. They are the only class of people for whom the 14th Amendment was operative. Today, the amendment is a unnecessary relic because the class of persons for whom it was crafted no longer exist.
a mindblogging mix
LOL. Methinks you got blogging on the mind! 🙂
I wonder how the LA Times would look at this if they had to have a “background check” every time they bought their (state limited) ink and paper? No “high capacity” printing presses. No semi- of full- automation. Limitations of number of copies printed and “on the streets”. They would still have “freedom of the press”….
Isn’t the current chief justice of CA9 the same guy who killed the Peruta case? If the appellate panel doesn’t overturn the injunction I wouldn’t be surprised to see him do the same here.
in that case, it’s on to SCOTUS
SCOTUS has avoided every gun case since Heller. They will provide no relief here.
the hacks in black @ the 9th Circus strike again. it’s as if they didn’t even read the injunction.
Guns in the hands of honest citizens is the greatest protection honest citizens can have against criminals both inside and outside government.
My jaw dropped at this:
“Fourth, the ammunition anti-importation laws directly violate the federal dormant Commerce Clause.”
I’ve been saying this for years about CA’s, NY’s, NJ’s, MA’s, etc gun laws. CA was given permission from Congress to write its own laws on auto emissions in order to regulate the type of automobiles (CA-compliant) that may be sold there – laws that without permission would be in violation of the Commerce Clause that gives Congress exclusive legislative jurisdiction over everything that moves in interstate commerce. All of CA’s laws (as an example) forbidding this and requiring that with regard to firearms, written without the express permission of Congress, infringe upon that exclusive legislative jurisdiction. (An argument could be made that Congress has no authority to abrogate any portion of its obligations nor to grant any portion of any of its legislative authority to the states. It can be further argued to CA’s exercise of such permission creates problems that were supposed to be prevented by granting Congress exclusive legislative authority over interstate commerce.)
9th Circuit stayed in favor of PDRK at the “11th hour”.