From left, California Gavin Newsom and California Attorney General Rob Bonta
PASADENA - The state of California cannot force people to undergo a background check and pay a fee each and every time they buy ammunition of any kind, or in any amount, without violating the Second Amendment, a divided federal appeals panel has ruled.
A dissenting judge, however, blasted the decision, saying the state's fee and relatively quick background checks did not meaningfully constrain "access" to ammo or violate people's rights to keep and bear arms.
On July 24, a three-judge panel of the U.S. Ninth Circuit Court of Appeals handed a win, for now, to California gun owners in their challenge to a California law that established the Golden State's ammunition background check mandate.
Established by California voters through a ballot proposition in 2016, the ammo background check regime took effect in 2019. The rules require anyone purchasing ammo in California - or California residents purchasing ammunition anywhere - to undergo background checks at the time of purchase, every time they purchase ammunition for their rifles, handguns, shotguns or other firearms.
The background checks cannot be virtual. Rather, the law requires gun owners to undergo a face-to-face background check, conducted by a licensed ammunition dealer using a state system, before they can legally be allowed to acquire their bullets, shells or other ammo rounds.
If Californians purchase ammunition online, the ammo must be sent to a licensed dealer in California for processing and the required in-person background checks.
Generally, people are required to pay a $1 fee per background check transaction.
Should gun owners fail that so-called Standard Ammunition Eligibility Check, they can pay a $19 fee for a different background check, in which a state employee manually reviews their eligibility. That kind of check, called a Basic Ammunition Eligibility Check, can take up to six days to process.
Gun owners are also required to pay a $22 annual fee and a so-called Dealers' Record of Sale of firearms (DROS) fee of $31.19 for each firearm purchased.
The ammunition background check regime was challenged in federal court by a group of gun owners and Second Amendment rights advocates, led by Olympic champion trap and skeet shooter Kim Rhode, together with the California Rifle & Pistol Association.
The challengers asserted the first-of-its-kind background check mandates violate their Second Amendment rights, among other constitutional and legal violations.
A San Diego federal district court judge agreed, slapping an injunction on the state to prohibit the law's enforcement while the case moved forward.
California Attorney General Rob Bonta appealed to the Ninth Circuit. Bonta, just as many California Democrats, is a noted supporter of a wide range of gun control laws, including outright bans on the sale and ownership of many kinds of firearms and consistently defends California gun laws against Second Amendment challenges.
On appeal, however, Bonta's lawyers failed to persuade the Ninth Circuit majority that California's ammunition background check requirements can withstand Second Amendment scrutiny.
The majority opinion was authored by Ninth Circuit Judge Sandra S. Ikuta. She was joined by Circuit Judge Bridget S. Bade.
Circuit Judge Jay Bybee dissented.
Ikuta and Bybee were both appointed by former President George W. Bush. Bade was appointed during the first term of President Donald Trump.
In the majority decision, Ikuta said it was clear to the majority that the California law's unprecedented requirement that gun owners undergo background checks every time they purchase ammunition, in any amount, anywhere, imposes a restriction with no historical constitutional analog.
They said this means the law cannot hold up under the Second Amendment or the constitutional legal tests established by the U.S. Supreme Court in the landmark Bruen decision.
In dissent, Bybee asserted the reasoning employed by the majority was legally and constitutionally dangerous, as he asserted it could be used to strike down not only this regulation, but a host of other firearms regulations Bybee said courts had previously determined were constitutional.
Bybee said he believed states, like California, should be allowed to impose small fees and wait times on ammunition purchasers, including at every purchase, if the state deems necessary.
Bybee said courts have identified a difference between the Constitution's guarantee of people's rights to keep and bear arms, and their concurrent right to access and acquire ammunition, without which their arms would be useless.
Bybee did not address how often those instant background checks may fail, resulting in much longer wait times and more costly fees imposed on people otherwise legally cleared to buy ammo for their legal firearms.
Bybee said he could not agree to the "boundless" interpretation of the Second Amendment he asserted was endorsed by the majority.
In response, however, Ikuta said Bybee's assertions concerning the practical effects of the background checks were irrelevant, compared to the Second Amendment and in light of the Bruen decision.
"The dissent analyzes the costs and delays worked by California’s ammunition background check regime on certain ammunition buyers," Ikuta wrote for the majority. "But Bruen rejects this approach," as the decision's constitutionality test "does not generally entail a consideration of the fees and wait times placed on particular buyers."
They further noted Bybee's assertions concerning the relative harm from the background checks were also factually wrong. The majority noted the federal district court had determined "Californians are denied the Second Amendment right to buy ammunition for self-defense at least 11% of the time because of problems with the background check system."
Bybee had asserted "99%" of ammo purchasers were cleared to purchase using the instant, or "standard" background check system.
The decision means the lower court's injunction stands, for now.
The state could now petition the full Ninth Circuit court to take up the case, en banc - meaning, it would be heard by a panel of 11 Ninth Circuit judges. The court's full complement of judges could also move on its own to vacate the three-judge panel's decision and reconsider the appeal en banc.
California could also seek to appeal to the U.S. Supreme Court.
Rhode and her fellow challengers were represented in the case by attorneys Michael D. Rown, Erin E. Murphy and Paul D. Clement, of the firm of Clement & Murphy PLLC, of Alexandria, Virginia; and C.D. Michel and Sean A. Brady, of Michel & Associates, of Long Beach.
The case also drew briefs from prominent gun control groups in support of the California law.
A group of 24 Republican-led states filed a brief opposing California, saying the law violated the Second Amendment and constitutional commerce rules because it prohibited California residents from purchasing ammunition directly from out-of-state vendors or online without the face-to-face background check transaction.
