U.S. District Judge Roger T. Benitez has delivered another blow to California’s gun control regime, striking down the state statute that imposes background checks on every ammunition sale in the state while prohibiting California residents from bringing ammunition purchased elsewhere back home; declaring it to be a violation of both the Second Amendment and the Constitution’s dormant Commerce Clause.

In his 32-page decision, the judge affectionately known as “Saint Benitez” by California gun owners for miraculously adhering to the text and tradition of the Second Amendment and striking down multiple gun control laws in the state, hinted that a voter-approved initiative requiring ammo purchasers to obtain an ammunition purchase permit might have survived constitutional scrutiny, but the law approved by California lawmakers that preempted that requirement cannot.

It is Senate Bill 1235’s requirement of a background check for every purchase that is challenged here. Why the egislature eliminated the voter-approved 4-year permit system in favor of an everypurchase background check scheme is not apparent. Without prejudging the discarded 4-year permit system envisioned by the voters of California, such a system would clearly be a more reasonable constitutional approach than the current scheme.

Today, a person may choose to submit to a full credit check to buy an automobile. But he is not required to pass the same credit check every time he needs to refill his car with gas or recharge his battery at a charging station. And the Constitution does not mention a right to own automobiles (or carriages or horses). Similarly, when a person chooses to buy a firearm, he is required to undergo a full background check. However, until now, he was not required to also go through a background check every time he needs to refill his gun with ammunition. And the Bill of Rights commands that the right to keep and bear arms shall not be infringed. With the recently enacted ammunition background check laws, gun owners in California undergo background checks more than one million times each year simply to buy ammunition. They are not allowed to buy ammunition from out-of-state vendors and have it delivered to their homes. They are not allowed to buy ammunition in Arizona or Nevada and bring it with them back into California. Though they are citizens entitled to enjoy all of the constitutional rights, 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.

This is actually the second time that Benitez has reached this conclusion. The Rhode case was pending before the Ninth Circuit when the Supreme Court issued its decision in Bruen, but rather than simply applying the Court’s text, history, and tradition test to the law themselves, the appellate court kicked the case back down to Benitez for a do-over, even though it was pretty clear how he was going to rule. Benitez references his earlier decision repeatedly in the 32-page ruling issued today, finding that the Bruen test didn’t help Attorney General Rob Bonta in his fruitless job of defending the law.

"The Attorney General has not identified a single historical law that required a citizen to pass a background check in order to purchase ammunition." pic.twitter.com/KLA38l7X4D

— Firearms Policy Coalition (@gunpolicy) January 31, 2024

That’s because there were no laws at the time of the Second Amendment’s ratification (or the ratification of the Fourteenth Amendment) imposing background checks on either gun purchases or purchases of ammunition. But Benitez declared that none of the statutes presented by Bonta represent a historic analogue to California’s modern prohibition either.

What are the 50 historical laws dating from 1789 to 1868 that the Attorney General has compiled as potential historical analogues? One would expect to find laws or ordinances that required a gunsmith to check with the local sheriff before selling a firearm. Or one might expect to find laws that restricted gunsmiths from selling to any customer who was a stranger in his community. Or perhaps there would be historical laws uncovered requiring a customer’s proof of citizenship before a merchant was allowed to sell him gunpowder. These could be apt analogues to demonstrate a related historical tradition of constitutional regulation.

Nothing like this appears in the State’s compilation of laws. 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.

I would have found a way to use the word “odious” as well, but other than that I can’t quibble with Benitez’s reasoning. Laws banning gun possession against classes of disfavored groups are nowhere close to a mandate that California residents undergo a background check every time they purchase ammunition, nor do they have anything to do with the portion of California’s law that bars residents from bringing ammunition purchased in Arizona or Nevada back across state lines.

Judge Benitez declined to issue a stay of his decision, so as of right now, Californians are free to purchase ammunition online and at retail shops in the state without having to submit to a background check, as well as once again purchase ammunition in other states and bring it back across state lines. Attorney General Rob Bonta has requested both a long-term stay of Benitez’s judgment as well as a shorter administrative stay while he appeals the decision to the Ninth Circuit Court of Appeals. It sounds to me like Benitez isn’t inclined to grant that request, but the Ninth Circuit may be far more amenable.

We don’t know how long this will be the case, but at least for the moment a small bit of Second Amendment sanity has been restored in California thanks to Saint Benitez and his adherence to the Constitution. Congratulations to the attorneys and plaintiffs in the case, including Olympic gold medalist Kim Rhode and the California Rifle & Pistol Association, who are rightfully jubilant over the decision.

“Like I initially stated to Gavin Newsom, [Rhode said], “always happy to teach you about the guns and ammo you don’t trust me to own.” I’m happy that the courts agreed with me. Many generations of hunters, outdoorsmen and Olympians will be able to train and pass on the shooting heritage for many generations. I will never stop fighting for the 2nd Amendment and what I believe to be right and the court’s ruling supports that.

Both cases were intensely watched by Second Amendment advocates buoyed by the announcement of the Bruen decision last summer.  Today’s ruling, while the state will most certainly appeal them, represent continued progress in rolling back decades of attacks on the rights of lawful gun owners.

“Today’s ruling represents continued affirmation that the Bruen decision, and Heller before that, represent a sea change in the way courts must look at these absurdly restrictive laws,” stated CRPA President & General Counsel Chuck Michel.  “Sure, the state will appeal, but the clock is ticking on laws that violate the Constitution.”

Lead attorney for the Rhode case, Sean Brady of Michel & Associates, noted, “this particular background check system, instituted by California law, was so egregious and over the top that Judge Benitez never faltered in his determinations from his earlier rulings which gave gun owners a win. Today’s ruling reiterates that California’s restrictions on ammunition purchasing are unconstitutional under yet another ruling in our favor and one that is in line with the Supreme Court opinion in Bruen.”

Egregious and over the top is a good description of the entirety of California’s gun control regime, and as Michel says, the clock is ticking on many of those restrictions… including the onerous (and odious) requirements for buying ammunition.