It's been almost a year since U.S. District Judge Roger Benitez declared California's restrictions on ammunition sales violate our Second Amendment rights (for the second time), but the required background checks and prohibitions on online and out-of-state ammo purchases remain in place thanks to the Ninth Circuit Court of Appeals, which stayed Benitez's decision shortly after it was released back in January. 

A three-judge panel ruled that the law can be enforced while the case is on appeal, but after oral arguments took place today, Second Amendment attorney Kostas Moros is cautiously optimistic that the plaintiffs have convinced at least two of the three judges to uphold Benitez's decision. 

While you never know for sure and any panel can disappoint, I am predicting a 2-1 win for us in Rhode v. Bonta based on today's argument. Judge Bybee was most hostile, which is unsurprising given his mixed 2A history, but even he seemed to bend just a little on the dormant… https://t.co/iIiALETmS5

— Kostas Moros (@MorosKostas) December 4, 2024

Ninth Circuit Judge Jay Bybee authored the 2021 en banc decision upholding Hawaii's "may issue" open carry law a couple of years ago, despite the fact that the state had issued virtually no carry permits to average citizens. The Ninth Circuit had previously declared that the Second Amendment didn't protect a right to carry a concealed firearm, but in Young v. Hawaii, Bybee and six other judges ruled the Second Amendment does not guarantee an "unfettered, general right to openly carry arms in public for individual self-defense" either. 

During today's oral argument about California's ammunition background checks, Bybee seemed to take great pains to defend the state's statute, even though the plaintiffs have documented widespread false denials and lengthy waits for lawful gun owners who've been unable to purchase ammunition in a timely fashion. 

Judge Bybee didn't read the record. We got lots of declarations from CRPA members who were wrongfully denied.

I know because I gathered them up and drafted them.

— Kostas Moros (@MorosKostas) December 4, 2024

As Benitez noted in his ruling striking down the statute, "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."

Benitez first declared the statute unconstitutional in 2020, but the Ninth Circuit overruled his decision in 2022 and remanded the case back to Benitez for a do-over in light of the Supreme Court's decision in Bruen. Though there was virtually no chance that Benitez would suddenly find California's law acceptable, the Ninth Circuit's procedural move guaranteed that SCOTUS wouldn't get ahold of the case for at least a few more years... and in the meantime, the appellate court would allow the law to continue to be enforced.  

The California Rifle & Pistol Association, which brought the legal challenge alongside the NRA and individual plaintiffs like Olympic shooter Kim Rhode and several FFLs, expressed confidence in the outcome of today's hearing shortly after it concluded. 

Attorneys arguing for the plaintiffs made perfectly clear that the California law is unique, noting that not once in this country’s history has the government required background checks for securing ammunition under a scheme as restrictive as California’s. California was the first state to implement such a restriction, making it impossible to meet the Bruen‘s requirement for a “historical analog” to the modern-day law.

“The Supreme Court remanded this case back to the Ninth Circuit so that it could follow the directive laid out in Bruen,” stated CRPA President & General Counsel Chuck Michel. “Our arguments today forcefully demonstrate that ammunition is, of course, covered by the Second Amendment and that the restrictions put in place by the state simply don’t hold up to the standard established in Bruen.

California Attorney General Rob Bonta maintains that because the Supreme Court said in Bruen that "shall issue" concealed carry regimes are presumptively constitutional, even though they require background checks and built-in delays before applicants can be approved, background checks on ammunition purchases are likewise no impediment to the right to keep and bear arms. Judge Benitez disagreed, pointing out that "record data mismatches, lengthy and occasionally infinite wait times, and sometimes exorbitant fees, are currently denying ordinary citizens their right to public carry."

Benitez suggested that there might be a way to conduct background checks on ammunition purchases that won't infringe on our Second Amendment rights, but California's scheme doesn't come close to achieving that result. There were echoes of his assertion from the bench during today's oral arguments. 

"You can still buy ammunition, you just have to request and pass the regular background check."

1. You have to know to request it - if the simpler check fails, it doesn't tell you why.

2. It costs like $20 for the regular background check.

— Kostas Moros (@MorosKostas) December 4, 2024

California's licensing regime for ammo buyers has created untenable delays for many gun owners, and as Moros points out, the fallback option available to them imposes a significant financial burden. Benitez rightfully struck down the state's ahistorical statute, and though the Ninth Circuit has regularly overturned any good decision for gun owners that have from district court judges, like Moros I'm cautiously optimistic that at least of the three judges who took part in today's argument will uphold Benitez's verdict. If that happens Bonta could still appeal to the Supreme Court, but he and other anti-gun activists may decide its better to take the loss than to risk SCOTUS setting a nationwide precedent on ammo sales and background checks.