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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