On April 23, 2020, the United States District Court for the Southern District of California, in Rhode v. Becerra,[1] granted the plaintiffs’ motion for preliminary injunction enjoining what the Court called California’s “onerous and convoluted new laws” requiring ammunition purchase background checks and implementing ammunition anti-importation laws.  Writing for the Southern District, Judge Roger T. Benitez declared, in a lengthy 77-page opinion, that the laws “gravely injured” the Second Amendment rights of California’s citizens.

The following day, on April 24th, the Attorney General requested a stay of the District Court’s preliminary injunction.  The District Court denied the request the same day. However, the Ninth Circuit subsequently issued a stay of the preliminary injunction on the evening of April 24th following the filing of an interlocutory appeal and request for stay by the Attorney General.  As such, the preliminary injunction issued by the District Court enjoining the State of California from enforcing the ammunition sales background check provisions set forth in California Penal Code sections 30370(a) through (d) and 30352, and the ammunition anti-importation provisions in Sections 30312(a) and (b), 30314(a), currently is stayed.

Background

Proposition 63

Prior to the November 2016 passage of Proposition 63 (the “Safety for All Act of 2016”), California citizens were able to purchase wanted or needed ammunition without background checks, and they could order ammunition over the internet and from vendors outside the state.

Proposition 63 amended the state Penal Code to regulate the purchase of all firearm ammunition, extending the concept of background checks for firearms.  The proposition requires that ammunition sales, deliveries, or transfers in California be conducted by a state-licensed ammunition vendor in a face-to-face transaction.  (Penal Code section 30312(a)-(b).[2])  The initiative also mandates that a California resident who sought to buy firearm ammunition must first pay for and pass an electronic background check each time he or she wanted to make a purchase.  Moreover, 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.; Section 30314.

The Main Gate and Four Doors

The changes to the laws resulting from the passage of Proposition 63 implemented what the Southern District called “The Main Gate and Four Doors,” a concept the Court described as follows:

Metaphorically, all ammunition to be bought or sold must be kept in the back storeroom of a licensed ammunition vendor.  In order to be admitted to the storeroom to buy ammunition, a California resident must first pass through a main gate.  The main gate requires proving citizenship.  Proceeding through the gateway, the California resident is then presented with a choice of four doors.  Each door is a different kind of background check and each doorway leads to the back storeroom.  Door No. 1 is the “Standard” background check.  It is supposed to be quick and costs one dollar but it is only for people who have previously bought a firearm through a California licensed firearm dealer or who have registered a firearm.  Most try this door first.  Door No. 2 is a “Basic” background check.  It is slow and costs $19.  Anyone can try this door and many do.  Door No. 3 is a Certificate of Eligibility Verification check.  It is quick and cheap, but it is only for those who have already gone through a long, expensive, and arduous process of obtaining a Certificate of Eligibility (“C.O.E.”).  Door No. 4 leads to the new firearms showroom.  Here, a person purchases a firearm and submits to an expensive and slow full background check conducted through federal and state databases.  If the Californian passes the Door No. 4 background check, she may also be admitted to the ammunition storeroom after the statutory ten-day cooling off period.  Though based on complete database searches and live analyst reviews, background checks for Doors No. 2 and No. 4, are good for one purchase only—just like a Door No. 1 check.

Under this system, before a person may go through the main gate and start a background test, he or she must prove citizenship.  However, a United States Citizen who has only a standard California-issued driver’s license (“DL”) or identification card (“ID”) will not qualify to take the first step in purchasing ammunition, i.e., the ammunition background check.  This is because by itself, a standard California driver’s license or identification card is not sufficient to prove citizenship.  If a person is relying on only his driver’s license to prove citizenship in order to buy ammunition, he needs a new California REAL ID-compliant DL or ID.

However, other California law directs the Department of Motor Vehicles (“DMV”) to issue California DLs to aliens who may be unlawfully present in the United States and reside in California, and these DLs look exactly like the standard DLs and IDs now issued to California’s U.S. Citizen-residents.  Thus, all standard California driver’s licenses now look exactly the same, whether issued to a citizen resident or to an unlawfully present alien.  However, such an alien commits a federal crime by possessing either a firearm or ammunition, while a U.S. Citizen has a federal constitutional right to possess a firearm and buy ammunition.

Without additional proof of citizenship, everyone who wants to buy ammunition with a standard California DL is rejected at the main gate because a person who presents a standard California DL at the main gate may be either a U.S. Citizen or an unlawfully-present alien.  Thus, a United States Citizen who has only a standard California-issued DL or ID does not qualify to take the first step in purchasing ammunition, i.e., the ammunition background check because they will never be admitted through the main gate.  The Southern District estimated that in the past two years,[3] as many as 12 million California citizen residents could carry the standard DL, and thus could be completely blocked from purchasing ammunition.  Because selling ammunition to a citizen with only a standard California-issued DL or ID is a misdemeanor,[4] there is no place within California where that citizen can go to buy ammunition.  Moreover, the anti-importation laws block citizens with only standard DLs or IDs from purchasing ammunition through the internet or from bringing ammunition purchased outside of California back into California.  Without a REAL ID, a person must present a U.S. Passport or a certified birth certificate along with their standard California DL, neither of which are obtained quickly or inexpensively.[5]

Statistics showed that for the 640,000 California citizens succeeding past the main gate, 616,257 chose Door No. 1 amongst the four doors.  Door No. 1, the “Standard” background check, was intended for people who had previously bought a firearm through a California licensed firearm dealer or who have registered a firearm.  With the Standard background check, there were 188 would-be purchasers identified as “prohibited persons” (felons, fugitives, violent misdemeanants, etc.) and denied authorization to purchase ammunition.  The Standard background check also rejected 101,047 other citizen residents mostly because the State had no record of gun ownership or because of identifier mismatches.  Thus, 16% of those who established their citizenship were rejected and prevented from lawfully acquiring ammunition and 0.030% of those who made it through the main gate were found to be prohibited persons.  For those rejected, the reason for the rejection was not conveyed immediately, and the subsequent process of identifying the specific reason for rejection or the particular mismatched data was often complicated and time-consuming.

Door No. 2, the “Basic” background check, also had drawbacks of rejecting non-prohibited persons improperly and for 75% of the time involved a manual review that could last up to more than a week and required a return trip to the same store on another day to acquire the ammunition.  Door No. 3, the C.O.E. Verification check, was quick and cheap, but was only for those who had already gone through a long, expensive, and difficult process of obtaining a C.O.E.  Door No. 4 led to the new firearms showroom where a person purchases a firearm and submits to an expensive and slow full background check conducted through federal and state databases.  Though based on complete database searches and live analyst reviews, background checks for Doors No. 2 and No. 4, were good for one purchase only—just like a Door No. 1 check.

Proposition 63’s Prohibitions on Ammunition Importation

Proposition 63 also prohibited a seller of ammunition physically located beyond California from selling directly to customers in California. (Section 30312(b).)  Prior to January 1, 2018, any merchant physically located outside California was allowed to sell ammunition directly to a customer in California, whether the transaction was done by U.S. Mail, email, an internet web store, a text message, or a telephone.

Plaintiffs’ Motion for Preliminary Injunction

A group of U.S. citizens residing in California,[6] an association of firearm owners, and several out-of-state ammunition sellers (“Plaintiffs”) sought a preliminary injunction enjoining California’s new laws pertaining to ammunition.  Plaintiffs brought a facial challenge through 42 U.S.C. section 1983 seeking a declaratory judgment that Penal Code sections 30312, 30314, 30342, 30347, 30348, 30350, 30352, 30370, 30385, 30390, and 30395, as well as California Code of Regulations, title 11 section 4263, were unconstitutional on their face or, alternatively, as applied to plaintiffs, because these sections violated the Second and Fourteenth Amendments to the United States Constitution.

Plaintiffs also claimed that the anti-importation provisions of Proposition 63, codified at Sections 30312, 30314, 30370, and 30385, violated the dormant Commerce Clause, Article I, section 8 of the United States Constitution.  In the motion for preliminary junction, Plaintiffs also sought a declaratory judgment that these Penal Code sections, as well as California Code of Regulations, title 11 section 4263, were unconstitutional on their face because they discriminated against interstate commerce in violation of the Commerce Clause by erecting a barrier to ammunition sellers in other states, thereby favoring California businesses.

In other words, Plaintiffs’ motion for preliminary injunction sought to keep the status quo as it was previously by enjoining the State from enforcing the ammunition background check system that went into effect on July 1, 2019 and the anti-importation laws that went into effect on January 1, 2018.

Discussion

The Second Amendment, part of the United States Constitution’s Bill of Rights, provides that “the right of the people to keep and bear arms, shall not be infringed.”  U.S. Const. amend. II. The Southern District Court explained that one intended effect of the Bill of Rights was to protect the minority from abuse by the majority by keeping some rights beyond the reach of majoritarian rule.  The Southern District explained that a state’s claim to public safety may not “eviscerate a citizen’s Second Amendment rights.”  The Court explained that this right to keep and bear arms is fundamental and is incorporated against the states under the Fourteenth Amendment.  McDonald v. City of Chicago, Ill., 561 U.S. 742 (2010).  Thus, as the United States Supreme Court made clear in District of Columbia v. Heller (554 U.S. 570 (2008)), “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.”  Heller, 554 U.S. at 636.

Although the Second Amendment does not explicitly mention ammunition, “the right to possess firearms for protection implies a corresponding right to obtain the bullets necessary to use them.”  Jackson v. City & Cty. of San Francisco, 746 F.3d 953, 967 (9th Cir. 2014) (quotation marks omitted).  The right to bear arms includes at least the right to keep and carry ammunition for both self-defense and to be ready to serve in a militia.  United States v. Miller, 307 U.S. 174, 179-80 (1939).[7]

The District Court observed that with regards to related California law, “the State has enacted incrementally a burdensome web of restrictions on the Second Amendment rights of law-abiding responsible gun owners.  The ammunition background check system and anti-importation laws add even more complexity….”  The Court observed that “California already has an universal background check for firearms, an ‘assault weapon’ ban, a ban on magazines holding more than 10 rounds, a gun registry, firearm confiscation orders, a minimum gun purchase age of 21 years, a limit of one firearm purchase per month, a requirement that would-be gun buyers first earn a safety certificate, a 10-day waiting period on gun purchases even for persons who already own a firearm, a ban on campus carry for self-defense, a ban on K-12 teachers being armed for self-defense, a ban on openly carrying a firearm, a highly restrictive concealed carry law, and a moribund roster of handguns permitted for retail sale, among others.”

In their motion for preliminary injunction, Plaintiffs argued that the new ammunition background check system violated the Second Amendment.  In arguing against the motion for preliminary injunction, the California Attorney General contended that the system successfully prevented prohibited persons from acquiring ammunition and that rejections to lawful would-be purchasers were easily resolved.  The California Attorney General did not contest the idea that acquiring and keeping ammunition was protected by the Second Amendment.  However, the Attorney General argued as most relevant here for the Court’s analysis that the background check system was a reasonable fit to achieve the State’s legitimate public safety interest of keeping ammunition out of the hands of prohibited Californians.

Preliminary Injunction Standard

The Court explained that the standard for issuing a preliminary injunction requires a plaintiff to establish: (1) that he is likely to succeed on the merits; (2) that he is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an injunction is in the public interest.  Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008); Doe v. Harris, 772 F.3d 563, 570 (9th Cir. 2014).

Considering the likelihood of success on the merits, the Southern District observed that for a Second Amendment challenge, the Ninth Circuit Court of Appeals uses a more complex test than the test presented by Heller.  Heller asks whether the challenged law bans the types of firearms commonly used for a lawful purpose.  The Southern District explained that as applied to laws prohibiting ammunition, the simple Heller test would ask:  is the ammunition commonly used by law-abiding citizens for a lawful purpose?  If yes, then it is protected ammunition.  The Court found it obvious that the California background check laws that fully blocked some law-abiding responsible citizens from buying common ammunition were unconstitutional, thus failing the Heller test.

The Southern District proceeded with the Ninth Circuit’s method of inquiry, which involved looking at how close the challenged statute struck at the core of the Second Amendment right, followed by a determination of how severe the statute burdened the Second Amendment right.

Here, the Southern District found that the California statutes directly burdened the Second Amendment right directly to its core, which was the right to defend one’s self, family, and home because under California law resulting from Proposition 63, a citizen resident unable to pass the background check for whatever reason may not purchase ordinary ammunition at all.  The Court also found that the California state statutes not only burdened the core of the Second Amendment, but often imposed upon the core the most severe burden — a complete ban.  The Court noted that at least 101,047 or 16.4% of applying citizen residents had not been able to buy ammunition, thereby suffering the severest burden.  The Court explained that “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.  Once again, judicial review could end right here.  Where a law imposes the severest burden on the core of the Second Amendment right for 101,047 citizen residents (and counting), the law is unconstitutional per se.[8]

The Intermediate Scrutiny Standard

The Southern District nonetheless proceeded to apply the “overly relaxed” standard of intermediate scrutiny, which the Attorney General argued was appropriate.  The intermediate scrutiny test under the Second Amendment requires that “(1) the government’s stated objective … be significant, substantial, or important; and (2) there…be a ‘reasonable fit’ between the challenged regulation and the asserted objective.”  Silvester v. Harris, 843 F.3d 816, 821-22 (9th Cir. 2016) (quoting United States v. Chovan, 735 F.3d 1127, 1139 (9th Cir. 2013)).

The Southern District determined that the Attorney General identified a public safety interest in preventing criminals from buying ammunition at gun shops, sporting goods stores, and other lawful vendors, in preventing violent felons and other persons prohibited from possessing firearms and ammunition to perpetuate gun violence.  Thus, the State’s objective passed the first prong of the intermediate scrutiny test.

What remained was the second prong of the test.  Under intermediate scrutiny, the government must carry the burden of establishing that its regulations are reasonably and narrowly tailored to the government’s significant objective.

The Court noted that California already criminalized the possession of ammunition by felons, prohibited persons, and aliens unlawfully in the United States, even without the background check system as implemented under Proposition 63.  This prompted to Court to ask: “Is a state-wide blanket background check system and anti-importation barriers for purchasing ammunition on top of existing felon-in-possession and alien-in-possession laws a reasonable fit for achieving these important goals?”  The Court was skeptical.

Here, the Court explained that the government had not demonstrated that the blanket background check system would alleviate harm in a direct and material way without unnecessarily burdening the rights of citizens.  The Court explained that so far, the benefit of the background check laws was “that a very small number[9] of prohibited persons have been denied authorization to buy ammunition at a licensed ammunition vendor.”  The Court also observed that the State did not provide any data on the amount prohibited out of this “very small number” of denied prohibited person because of unlawful alien status.

Considering the burden on the other hand, the Court observed that over 101,047 citizen residents who were not prohibited persons, yet still failed a background check, were unable to exercise their Second Amendment right to acquire ammunition for their firearms.  The Court stated that the California background check system’s long-term average rejection rate of 16.4% suggested that the system was deeply flawed, observing that Californians purchasing firearms using the federal NICS background system failed background checks at a much lower rate of approximately 1.1%.[10]

The Court also believed that “an untold additional number of ammunition purchasers were turned away or deterred and did not even start a background check” due to the difficulties of passing through the aforementioned main gate.  The Court observed that the State’s own predicted annual estimate of 13 million ammunition transactions with Standard background checks vastly overstated the actual results, with only about 636,000 Standard and Basic background check transactions over a 7- month period (roughly 8% of the State’s expectations).  To account for this disparity, the Court posted that the background checks could have had “incredibly chilling effects on law-abiding gun owners,” or possibly “the onerous and inescapable burden these background check laws impose are forcing purchasers to find alternative, possibly illicit, sources.”  Moreover, only 14% of the 4.5 million California gun owners on the electronic Automated Firearms System (“AFS”) list had tried to buy ammunition with a background check.

The Southern District Court cited an obvious absence of legislative history for California’s ammunition background check “experiment” to support the State’s cause.  The Court noted that in another such experiment, the federal Gun Control Act of 1968 (which both required ammunition recordkeeping and prohibited interstate mail-order ammunition sales), was repealed after 18 years because the federal Bureau of Alcohol Tobacco and Firearms and the Treasury Department said the ammunition recordkeeping had no substantial law enforcement value.

As for studies in the record proffered by the State, the Court determined that none of the studies suggested that the new regulations would achieve the State’s interest of reducing gun violence.  To the contrary, the studies indicated that persons with criminal intent would avoid background checks by using alternative sources such as out-of-state retailers, private person-to-person transfers, or straw buyers.  The Court found that the State’s “experiment is based on a naive assumption that prohibited persons will subject themselves to background checks to buy ammunition,” adding that “criminals, tyrants, and terrorists don’t do background checks.”  Meanwhile, the Court stated that these ammunition statutes unduly and severely burdened the Second Amendment rights of responsible, gun-owning citizens who desired to lawfully buy ammunition.  The Southern District determined that the evidence did not support the notion that Proposition 63’s background check and anti-importation provisions for ammunition acquisition would make the public safer.

The Court observed that the ammunition background check laws were not tailored to differentiate between different amounts and types of ammunition, nor between different types of people (e.g. between a former law enforcement officer and an edgy-looking, furtive-glancing, impatient and angry customer).  The laws were not tailored to differentiate between ammunition needs in rural and urban areas.

For these reasons, the Court concluded the government had not carried its burden of demonstrating that the restriction of Second Amendment rights resulting from the laws here were a reasonable fit for the asserted substantial interest.  The Court instead found “[t]he fit [wa]s that of a large square peg for a small round hole.”

The Southern District concluded its discussion of the merits of the State’s ammunition background check system by discussing the government’s infringements upon a law-abiding citizen’s constitutionally-protected right to keep and bear firearms and ammunition.  The Court explained that no legislature or popular vote had the constitutional authority to dictate to a citizen that he or she could not acquire ordinary and popular ammunition for his or her guns.  Nor could the acquisition process “be made so unreasonably difficult that she simply throws up her hands and surrenders the right.”  Thus, the Court found that Plaintiffs had made a sufficient showing of their likelihood of succeeding on the merits of the Second Amendment claims.

Ammunition Anti-Importation Laws and the Commerce Clause

Plaintiffs also claimed that Proposition 63’s anti-importation provisions violated the Commerce Clause because they favored businesses in California by erecting a barrier to ammunition sellers in other states.

The Commerce Clause, Article I, section 8, clause 3 of the United States Constitution, gives Congress the power “[t]o regulate commerce … among the several states.”  Courts have consistently held that this affirmative grant of power to Congress includes a negative implication, which restricts the ability of states to regulate and interfere with interstate commerce.  Tenn. Wine & Spirits Retailers Ass’n v. Thomas, 139 S. Ct. 2449, 2459 (2019); Camps Newfound/Owatonna, Inc. v. Town of Harrison, Maine, 520 U.S. 564, 571 (1997).  That restriction upon the states, referred to as the dormant Commerce Clause, “prohibits economic protectionism — that is, ‘regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors.’“  Fulton Corp. v. Faulkner, 516 U.S. 325, 330 (1996).  Under the dormant Commerce Clause, courts “protect[ ] the free flow of commerce, and thereby safeguard[ ] Congress’ latent power from encroachment by the several States[ ]” when Congress has not affirmatively exercised its Commerce Clause power.  Merrion v. Jicarilla Apache Indian Tribe, 455 U.S. 130, 154 (1982).

The Supreme Court has held that “in all but the narrowest circumstances state laws violate the Commerce Clause if they mandate differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter.”  Granholm v. Heald, 544 U.S. 460, 472, (2005) (citing Oregon Waste Systems, Inc. v. Department of Environmental Quality of Ore., 511 U.S. 93, 99 (1994)); see also New Energy Co. of Ind. v. Limbach, 486 U.S. 269, 274 (1988).  The Southern District explained that under Proposition 63, the sole circumstance of residence in another state foreclosed a vendor of ammunition from selling directly to California residents, despite Granholm’s declaration that “[t]he mere fact of non-residence should not foreclose a producer in one State from access to markets in other States.”  Id. (citing H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 539 (1949)).

Before January 1, 2018, any merchant physically located outside California was permitted to sell ammunition directly to a customer in California, whether the transaction was accomplished by U.S. Mail, email, an internet web store, a text message, or a telephone.  Proposition 63 prohibited a seller of ammunition physically located beyond California from selling directly to customers in California. (Section 30312(b)).  Now an out-of-state merchant must open a physical store in California and obtain a California ammunition vendor license to conduct such transactions.  The only alternative is to hire and arrange for a third-party California-based and California-licensed ammunition vendor to complete the delivery.  The out-of-state product must be delivered first to the California vendor and then from the California vendor to the California customer. In-state ammunition merchants are not required to accept such a delivery from a non-California merchant.

The Court observed that due to the face-to-face delivery requirement in Proposition 63, out-of-state businesses who want to continue to sell directly to their California customers will have to open not just one store inside California, but stores in every local market inside California in which they seek to sell ammunition.  Consequently, California’s resident businesses are the only businesses that may sell directly to ammunition consumers.  Sales of any quantity, by all other sellers, anywhere else in the country, must be funneled through a California resident vendor licensed to sell ammunition.

The District Court explained that courts analyze dormant Commerce Clause claims using the Supreme Court’s two-tiered approach.  Pharm. Research & Mfrs. Of Am. v. Alameda, 768 F3d 1037, 1041 (9th Cir. 2014).  The first tier test is whether the state law discriminates directly against interstate commerce or directly regulates interstate commerce.  Id.  If the state law does either, “it violates the Commerce Clause per se, and we must strike it down without further inquiry.”  Id. (citation omitted).  The Court concluded that Proposition 63 did both and thus directly violated the dormant Commerce Clause.

In the second tier, where a statute regulates even-handedly to effectuate a local public interest and has only incidental effects on interstate commerce, courts weigh whether the burden on commerce is excessive in relation to the putative local benefit.  Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).  The Court found reason to infer that Proposition 63 would significantly burden interstate commerce in ammunition, noting that out-of-state firms could administer the same background checks for ammunition purchases as California sellers did.

The Attorney General contended that stopping the flow of ammunition into the state was a matter of public safety, but the Southern District explained that Granholm stated that “[o]ur Commerce Clause cases demand more than mere speculation to support discrimination against out-of-state goods.  The burden is on the State to show that the discrimination is demonstrably justified.”  Id. at 492 (internal quotation marks omitted).

The Court found that the State had not provided any evidence that out-of-state ammunition businesses had been selling ammunition to prohibited persons in California.  The Court speculated that impatient or circumspect criminals would not be likely to attempt to purchase from out-of-state vendors.  The Court concluded that, under Granholm, which “require[d] the clearest showing to justify discriminatory state regulation” (Id., 544 U.S. at 490), California’s purely legal argument without evidence did not suffice.

Having at last resolved the merits of both aspects of Plaintiffs’ claims, the Southern District addressed the final three elements of the preliminary injunction standard relatively quickly.  The Court found that Plaintiffs had carried their burden to show the likelihood of irreparable harm because, as with First Amendment harms, the loss of Second Amendment freedoms even for minimal times constituted irreparable injury.[11]  Moreover, the Court explained that for those intending ammunition for self-defense, loss of the peace of mind coming from knowing one could protect oneself if necessary, loss of the ability to acquire ammunition when needed, and the loss of enjoyment of Second Amend rights constituted irreparable injury.

As to the third element, the balance of hardships, the Court found that the hardships faced by Plaintiffs significantly outweighed those faced by the State of California because the ammunition background check statutes threatened criminal prosecution on sellers and residents, and posed the potential for harm by inhibiting Plaintiffs’ ability to defend themselves, their families, and their properties.

As to the final element for the preliminary injunction standard, the Court found that the public interest favored the exercise of Second Amendment rights by law-abiding responsible citizens because “[i]t is always in the public interest to prevent government from violating a citizen’s constitutional rights.”  The Court added that “the public interest also lies in maintaining the unitary strength of the many United States of America, which dormant Commerce Clause principles support… The anti-importation provisions insulate the state from ammunition commerce and competition from the other states.  The United States Congress may have the authority to do that, but not state lawmakers.”

The United States District Court for the Southern District of California declared its general conclusion early in its decision: “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.”  The Court accordingly granted Plaintiffs’ motion for preliminary injunction, and enjoined the State of California from enforcing the ammunition sales background check provisions in California Penal Code sections 30370(a) through (d) and 30352, and the ammunition anti-importation provisions in Sections 30312(a) and (b), 30314(a).

HOW THIS AFFECTS YOUR AGENCY

Agencies should observe that as the Court noted that while this motion had been pending, the Governor has signed additional new “gun violence prevention” laws into existence (including a firearm precursor part background check).  With the Southern District’s rejection of the State’s approach to its prevention goals, such laws will likely encounter similar challenges.  In addition, as noted above, the District Court’s preliminary injunction has been stayed by the Ninth Circuit.  Based upon the underlying nature of this legal challenge, and past history concerning such cases, we can anticipate an extended legal battle to determine the precise contours of the Second Amendment with respect to ammunition purchases in California.

As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446–1400 or via email at jrt@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice.  The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.

[1] 2020 U.S. Dist. LEXIS 71893 (S.D. Cal. Apr. 23, 2020).

[2] (a)(1) Commencing January 1, 2018, the sale of ammunition by any party shall be conducted by or processed through a licensed ammunition vendor.

(2) When neither party to an ammunition sale is a licensed ammunition vendor, the seller shall deliver the ammunition to a vendor to process the transaction. The ammunition vendor shall promptly and properly deliver the ammunition to the purchaser, if the sale is not prohibited, as if the ammunition were the vendor’s own merchandise. If the ammunition vendor cannot legally deliver the ammunition to the purchaser, the vendor shall forthwith return the ammunition to the seller. The ammunition vendor may charge the purchaser an administrative fee to process the transaction, in an amount to be set by the Department of Justice, in addition to any applicable fees that may be charged pursuant to the provisions of this title.

(b) Commencing January 1, 2018, the sale, delivery, or transfer of ownership of ammunition by any party may only occur in a face-to-face transaction with the seller, deliverer, or transferor, provided, however, that ammunition may be purchased or acquired over the Internet or through other means of remote ordering if a licensed ammunition vendor initially receives the ammunition and processes the transaction in compliance with this section and Article 3 (commencing with Section 30342) of Chapter 1 of Division 10 of Title 4 of this part.

[3] Beginning two years ago, the DMV began issuing standard DLs for citizens and the DLs for unlawfully present aliens that looked identical.

[4] See Section 30312.

[5] According to Plaintiffs, U.S. Passport would require citizens to pay fees of at least $145 and require a wait approximately six to eight weeks. The alternative to obtaining a passport is a certified copy of a state birth certificate. If a person does not possess a certified copy of their birth certificate, according to the Plaintiffs, obtaining a copy will require a search costing up to $34 and taking up to 22 weeks. Obtaining a certified copy of a California birth certificate may take between 3.5 weeks and 7.5 weeks.

[6] The group included an Olympic medalist in skeet and double trap shooting who used specialized competition ammunition and a Master Hunter Education Instructor under the California Department of Fish and Wildlife Hunter Education Program.

[7] See also Luis v. United States, 136 S. Ct. 1083, 1097 (2016) (Thomas, J., concurring) (quoting Jackson, 746 F.3d at 967):  “Constitutional rights thus implicitly protect those closely related acts necessary to their exercise . . . The right to keep and bear arms, for example ‘implies a corresponding right to obtain the bullets necessary to use them.’”

[8] See Bauer v. Becerra, 858 F.3d 1216, 1222 (9th Cir. 2017): “‘A law that imposes such a severe restriction on the fundamental right of self-defense of the home that it amounts to a destruction of the Second Amendment right is unconstitutional under any level of scrutiny.’” (quoting Silvester v. Harris, 843 F.3d 816, 821 (9th Cir. 2016).

[9] Statistics revealed that 0.030% of those who made it through the main gate were found to be prohibited persons.

[10] U.S. Department of Justice, Bureau of Justice Statistics, Background Checks for Firearm Transfers, 2015 Statistical Tables, (Nov. 2017) at Table 3.

[11] See the Ninth Circuit decision in Associated Press v. Otter, 682 F.3d 821, 826 (9th Cir. 2012) (alteration in original) (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976)): “…[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”