How This California Ammunition Law Fell Over Itself

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posted on February 4, 2024
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For the second time, a federal judge has struck down a California law requiring background checks for purchasing ammunition. U.S. District Judge Roger Benitez of San Diego said the law, which took effect in 2019, “treats all citizens as if they do not enjoy a right to buy ammunition. It forces Americans to entreat and supplicate the state for permission.”

California voters, in 2016, approved Proposition 63, which required Californians to acquire a purchase permit and present it in order to buy ammunition. It was supposed to cost $50 and was good for four years. But the California legislature amended Proposition 63 before it could be implemented with a more complicated system, requiring a background check for every ammunition purchase. To pay for the background checks, a fee also had to be paid each time someone bought ammo.

The law also prohibited purchasing ammunition by mail or bringing ammunition in from other states. You could avoid this when buying ammunition at a commercial range, but the ammo could not leave the range. 

In this case, the plaintiff who sued was Kim Rhode, the Olympic trap and skeet shooter who won medals in six consecutive Olympics. Rhode is a Californian. To compete, she has to practice; a lot. If she competes outside California and buys ammo there, she cannot bring any of it home, nor can she mail order it by the ton, as she needs to do. (It takes a lot of practice to win gold.) The case is Rhode v. Bonta (S.D.Cal. 2024).

The background-check law was a mess. In 2019, during the system’s first seven months, over 100,000 law-abiding citizens were rejected—about 16% of the purchase attempts. These were almost entirely recordkeeping errors or mismatches on names (“Bobby,” not “Robert”; a misspelled middle name; or a person having a similar name as someone who is prohibited from owning firearms).

By 2023, California had made some improvements to its system, as only 11% of the law-abiding were rejected. Theoretically, these erroneous rejections can be fixed, but more than a third who first tried to buy ammunition had not done so six months later. It is unknown what percentage of these people were law-abiding citizens who just gave up.

Okay, the system rejected a lot of apparently lawful buyers, but what about the bad guys it rejected? In the first seven months, 770 people were rejected as “prohibited persons.” Sixteen, at least, were not really prohibited persons. Those remaining 754 led to 51 investigations, 15 arrests and six criminal convictions. These must be the prohibited who thought the background check was not smart enough to catch them or had forgotten they had a felony conviction. So, all this cost and trouble was to take away ammunition from a tiny number of possible criminals who didn’t think the teeth of the justice system would sift them out and chew them up.

In Rhode v. Bonta, Judge Benitez writes that the obvious flaw in the ammunition-background-check law was that it disregarded the Second Amendment. The right to keep and bear arms is meaningless without the right to buy ammunition. Think of the freedom of the press if you needed government permission to buy ink and paper.

Judge Benitez compared this law to a Texas state law requiring identification documents to vote.  The Fifth Circuit Court of Appeals has ruled that Texas denying 4.5% of the population the right to vote violated the Fifteenth Amendment and that law was therefore unconstitutional. A California law that then denies 11% of its population from lawfully purchasing ammunition violates the Second Amendment.

The U.S. Supreme Court’s Bruen (2022) decision requires states that wish to defend a gun law must show that there was some similar law in the Founding Era. If a similar law existed between 1791 and 1868 (from when U.S. Bill of Rights was ratified to when the Fourteenth Amendment was passed), then it just might be constitutional. 

California’s historical examples were bad. The state produced a list of 148 laws. Some dated from the 1400s, which Bruen specifically rejected as too far removed from the Founding Era. At least 40 laws were passed after 1868 and some were from the 20th century—way too late. None of the laws from the relevant date range required a background check to buy ammunition.  Therefore, those 148 laws California presented were not relevant to the constitutionality of this law.

For this case, I produced a rebuttal to their “expert” witnesses. Many of the witnesses for the state were embarrassingly bad; their experts actually cited laws that prohibited white traders from buying guns (not ammunition) from Native Americans.

The best part of Benitez’s decision was:

The State’s compilation lists 48 laws which made it a crime to possess a gun and ammunition by Negros, Mulattos, slaves, or persons of color, and two laws that prohibited sales to Indians. For example, the Attorney General lists a 1798 Kentucky law which prohibited any “Negro, mulatto, or Indian” from possessing any gun or ammunition. An 1846 North Carolina law offers another example wherein it was prohibited to sell or deliver firearms to “any slave.” This is the third time the Attorney General has cited these laws in support for its laws and restrictions implicating the Second Amendment. These fifty laws identified by the Attorney General constitute a long, embarrassing, disgusting, insidious, reprehensible list of examples of government tyranny towards our own people.

California and its experts have been defending California gun laws for several years by citing racist laws as evidence that gun control is part of the American history and tradition. This is so inconceivably hypocritical that I would sound like an extremist by just quoting them.

Judge Benitez also pointed out that the U.S. Constitution grants Congress the authority to pass laws regulating interstate commerce. For the first few decades, the courts recognized this as a limit on the authority of states to regulate interstate commerce; the federal government was the only level of government that could prohibit a company in Oregon from selling goods in California. This is called the Dormant Commerce Clause. Judge Benitez pulled this out to hold that banning shipments of ammo to California is unlawful.

Finally, he brought out the Firearms Owners Protection Act of 1986 (FOPA). You likely know that if you are travelling from one state where your firearms and ammunition may be lawfully possessed to another state where your firearms and ammunition may be lawfully possessed that you can travel with those guns, as well as the ammunition for them, if the firearms are unloaded, locked in a case and not accessible to passengers or driver. Should you travel through an area while on your journey where there are restrictions on transporting or possessing your particular firearms or ammunition, FOPA offers protection against prosecution for violating those laws and, thus, overrides California’s law because it is not a restriction on possessing the ammunition, but on transporting it.

Unlike some other decisions where judges (even Benitez) have granted California a “stay,” or delay in the ruling going into effect to give the state time to appeal, this decision took effect immediately.

It is safe to assume that the state of California will file an appeal to challenge this ruling.

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