The Civil Rights Division of the Department of Justice is once again siding with plaintiffs challenging a state-level law infringing on our Second Amendment rights, this time taking aim at California's background check requirement on ammunition sales.
In an amicus brief filed with the Ninth Circuit, the DOJ contends California's law is "straightforwardly unconstitutional," and is purposely intended to hinder "law-abiding citizens’ exercise of their SecondAmendment rights." The ammo background check requirement "finds no analogue among valid regulatory schemes of the past," which the DOJ says isn't surprising given that "the history and tradition surrounding the Second Amendment establish that firearms regulations must serve legitimate objectives and may not be designed simply to inhibit the ability to possess or carry operable protected firearms."
An en banc panel of Ninth Circuit judges is set to consider the law during oral arguments in March, after Attorney General Rob Bonta appealed a previous decision by a three-judge panel that found the law a violation of the Second Amendment.
Though the Ninth Circuit accepted California's premise that the ammunition background check requirement is meant to ensure that prohibited persons can't access operable firearms, the DOJ contends in its brief that "those representations are hard to credit."
Every State has confronted that same problem for generations, yet virtually none of them has adopted anything like California’s approach. On the other hand, California’s regime is perfectly well-suited to thwart its residents’ exercise of their Second Amendment rights. If the costs and maze-like features of California’s background-check system at the front end do not discourage would-be ammunition purchasers from embarking on the journey, the complications experienced by thousands of Californians on the back end surely do. The delay and confusion of California’s regime is the point, all to frustrate the Second Amendment right.
That is unconstitutional, regardless of whether California achieved great or limited success in its goal. There is thus no need for this Court to compare California’s background-check regime’s requirements to those imposed by historical icensing rules, surety laws, or loyalty oaths—though even if it were to do so, California’s law would not pass muster. A law designed to antagonize the Second Amendment definitionally does not “comport with [its] principles.” (quoting Rahimi) This Court should affirm the judgment below.
DOJ isn't contending that the ammunition background check scheme is meant to deprive people of their Second Amendment rights, but to needlessly make it more difficult and burdensome to do so. Of course, the same argument could be made for any number of gun control laws, including some that the DOJ is currently defending. In U.S. v. Peterson, for example, the DOJ has argued that while suppressors are protected by the Second Amendment, the (now repealed) $200 tax and registration requirements imposed by the National Firearms Act are only "modest burdens" on the right to keep and bear arms. Yet here in Rhode, the DOJ's position is that "[w]hen firearms regulations are designed to thwart the right to bear arms, they are unconstitutional, no matter the size or characteristics of the burden they impose."
I suppose the DOJ's position would be that the NFA restrictions aren't designed to thwart the right to bear arms, but I think that would be a difficult position to defend given that the entire point of the National Firearms Act was to make it more difficult to own and acquire certain arms.
That's probably fodder for another post altogether, so let's get back to the DOJ's brief in Rhode, which doesn't just rely on the assertion that California's background check scheme is unconstitutional because of the intent behind it. The brief lays out several arguments in support of the panel's decision, starting with the premise that the background check scheme imposes a "meaningful constraint" on the right to keep and bear arms.
California’s background-check regime cannot be avoided by simply walking “down the street”; rather, it applies “to all ammunition transactions,” even ones “that occur in another state.”
In its petition, California fixates on that last point, claiming that the geographical burden placed by its background-check system is irrelevant. As the panel below explained, that is wrong under this Court’s precedents.In Teixera v. County of Alameda, this Court upheld a zoning restriction on firearm dealers because it would have “little or no impact on the ability of individuals to exercise their Second Amendment right” given “the number of gun stores in the County” and its geography. And in B & L Productions, Inc. v. Newsom, this Court upheld a ban on the sale of firearms on state property because—given that there were “six licensed firearm dealers in the same zipcode” and any individual could “acquire the [desired] firearms down the street”—“the record suggests that no individual’s access to firearms would be limited” at all. Here, by contrast, California’s restrictions on purchasing ammunition follows its residents down the street, outside their zip code, and even beyond the State’s borders. That—along with all its other burdensome features—renders California’s regime a “meaningful constraint,” and it must therefore be consistent with the history and tradition of firearm regulation in this Nation.
Residents of Needles, California can attest to this. Because it's illegal to bring back ammunition purchased out of state, residents on the California/Arizona border have to drive 70 miles west to the nearest gun store if they want to buy a box of 9mm instead of driving a few miles north to gun shops in Fort Mohave, Arizona.
The DOJ also contends that California's ammo background check scheme is not consistent with the history and tradition of firearm regulation, noting that the scheme a thoroughly modern creation and nearly unique among the 50 states (only New York has a similar scheme for background checks on ammo sales). And once again the DOJ returns to its main theme that California's law is meant to frustrate the exercise of our Second Amendment rights, not to prevent criminals from using operable firearms.
Under the challenged law, a Californian who desires to buy ammunition must undergo a background check before every transaction. Each transaction, that resident must pay a fee—for the two most-discussed options, $1 (the “standard” check) or $19 (the “basic” check) per purchase. And each background check has its own associated delays. When the process is working, the background check can take minutes or days; when, as for tens of thousands of gun owners, the system rejects the would-be purchaser for technical reasons, it could be months. On its face, California’s background-check regime serves only to place obstacles in the way of citizens seeking to exercise their Second Amendment rights, not to promote any legitimate objective. That is per se unconstitutional.
In this litigation, California has insisted that the purpose of these background check laws is “to prevent dangerous prohibited persons from acquiring bullets for their guns.” But courts “are not required to exhibit a naiveté from which ordinary citizens are free.” And they need not be “blind” to the “palpable” “regulatory effect and purpose” of a statute that “[a]ll others can see and understand,” regardless of how the State chooses to defend it in litigation. In the abstract, perhaps each provision of California’s regime could somehow be rationalized as a sincere attempt to keepammunition in lawful hands. But reality is not a vacuum. Taken together, the design and operation of California’s background-check regime evinces not a legitimate attempt to keep ammunition away from dangerous prohibited persons but rather a bare desire to curtail the Second Amendment right.
To buttress that argument the DOJ points to California's bizarre 18-hour time limit to purchase ammunition once a background check has been completed, compared to the 30 days allowed under federal law for a "firearms vendor to rely on a background check for a transaction".
The prices California charges per ammunition transaction, too, are hard to explain except as an intentional burden. For the two most-discussed background checks, the fees are $5 (standard check) and $19 (basic check) per transaction. The fee associated with purchasing ammunition via a certificate of eligibility is $5 per transaction, but maintaining a certificate requires an initial $22 application fee and an annual $22 renewal fee thereafter. The only other way to acquire ammunition is to purchase it in the same transaction as a firearm purchase—which itself requires a $31.19 fee. California has not explained why ammunition purchasers must undergo two background checks: one to obtain the certificate of eligibility and the second at point of sale.
As for the state's argument that the background check law is meant to thwart criminals from getting ammunition, the DOJ points out that in the first half of 2023, only 0.03% of all ammunition purchases were correctly flagged as coming from a prohibited person, while 11% of transactions wrongly rejected buyers for being prohibited persons when they were actually able to legally purchase ammo.
California’s background-check system is thus far more effective at keeping operable firearms out of the hands of law-abiding citizens than it is at withholding ammunition from dangerous prohibited persons.
Again, the same could be said for any number of gun control laws, including federal restrictions on machine guns in a day and age where cheap plastic switches are used to convert semi-automatic firearms into full-auto. But it's definitely the case with California's ammunition background check scheme, and the DOJ's brief makes a strong argument in favor of sustaining the previous Ninth Circuit decision that found the law unconstitutional.
