BREAKING: Ninth Circuit Panel Rules California’s Ammunition Background Check Law Violates the Second Amendment

Last January, United States District Judge Roger Benitez ruled in Rhode v. Bonta that California’s ammunition background check law violates the Second Amendment. He then issued an injunction blocking enforcement of the law. As Judge Benitez wrote at the time . . .

The ammunition background checks laws have no historical pedigree and operate in such a way that they violate the Second Amendment right of citizens to keep and bear arms. The anti-importation components violate the dormant Commerce Clause and to the extent applicable to individuals travelling into California are preempted by 18 U.S.C. § 926A.

California Attorney General Rob Bonta, as rabid an anti-gunner as has ever held public office, then appealed the ruling to the Ninth District Court of Appeals. Unfortunately for him, a three-judge panel agreed with Judge Benitez today in a two to one ruling.

Affirming the district court’s grant of a permanent injunction, the panel held that California’s ammunition background check regime, which requires firearm owners to complete background checks before each ammunition purchase, facially violates the Second Amendment.

The panel applied the two-step framework set forth in New York State Rifle and Pistol Association v. Bruen in assessing plaintiffs’ Second Amendment challenge. 

Applying the first step, the panel held that California’s ammunition background check regime implicates the plain text of the Second Amendment because the regime meaningfully constrains the right to keep operable arms.

Applying the second step, the panel held that the government failed to carry its burden of showing that California’s ammunition background check regime “is consistent with the Nation’s historical tradition of firearm regulation.” The historical analogues proffered by California were not within the relevant time frame, nor were they relevantly similar to California’s ammunition background check regime.

Accordingly, the panel held that California’s ammunition background check regime did not survive scrutiny under the two-step Bruen analysis.

The panel next considered Bruen’s footnote stating that “nothing in [the Supreme Court’s] analysis should be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes.” The panel explained that the Supreme Court indicated that shall-issue regimes may be constitutional, but did not hold that they were per se consistent with the Second Amendment. Moreover, Bruen shed no light on the constitutionality of an ammunition background check regime, which is meaningfully distinguishable from a shall issue licensing regime.

Finally, the panel considered the implications of the nature of plaintiffs’ facial challenge to California’s ammunition background check regime. The panel held that Bruen’s two-step framework applies regardless of whether a plaintiff brings a facial or as-applied challenge to a law alleged to violate the Second Amendment.

Because California’s ammunition background check regime violates the Second Amendment, the panel held that the district court did not abuse its discretion in granting a permanent injunction.

You can read the panel’s ruling here. As night follows day, Bonta will move for an en banc review of the panel’s decision, so this isn’t over yet. Watch this space.