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Ninth Circuit:
Requiring Background Checks for Buying Bullets Is Invalid
Majority Says California’s Regulatory Scheme Runs Afoul of Second Amendment
By Kimber Cooley, associate editor
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KIM RHODE plaintiff |
A divided panel of the Ninth U.S. Circuit Court of Appeals held yesterday that California’s regulatory scheme that requires residents to undergo background checks and engage in face-to-face transactions with licensed vendors in order to legally purchase ammunition violates the Second Amendment and was properly permanently enjoined.
Writing for the majority, Circuit Judge Sandra S. Ikuta declared:
“By subjecting Californians to background checks for all ammunition purchases, California’s ammunition background check regime infringes on the fundamental right to keep and bear arms. Because California’s ammunition background check regime violates the Second Amendment, the district court did not abuse its discretion in granting a permanent injunction.”
Circuit Judge Bridget S. Bade joined in Ikuta’s opinion, and Senior Circuit Judge Jay S. Bybee dissented.
At issue is the statutory scheme, adopted in 2019, following the passage of a voter initiative in 2016 that greenlit the creation of additional regulations for ammunition purchases. One provision, Penal Code §30370, requires the California Department of Justice to approve a transaction “at the time of purchase or transfer, prior to the purchaser or transferee taking possession of the ammunition.”
Multiple types of background checks are available for consumers to obtain permission from the department to purchase the requested ammunition, ranging in cost from $1 to $31.19. Although the regulatory scheme does not expressly establish a timeline for approval, some eligibility certificates require the purchaser to transact within 18 hours while others last for 30 days.
The regulatory structure captures online purchases by demanding that the goods be delivered to a licensed vendor, who must verify that the buyer is authorized to purchase the ammunition and is authorized to charge storage and processing fees.
Pre-Enforcement Challenge
In April 2018, Kim Rhode—a San Bernardino resident and Olympic gold-medalist in skeet shooting—along with six other individuals, three out-of-state ammunition vendors, and the California Rifle & Pistol Association, Inc., filed a pre-enforcement action challenging the proposed regulations. The plaintiffs asserted, among other things, that the background check scheme violated the Second Amendment.
Following a trial on the merits, Senior District Court Judge Roger T. Benitez of the Southern District of California permanently enjoined the state from enforcing the background check and anti-importation provisions found in Penal Code §§30352, 30370, 30312, and 30314, as well as barring officials from criminally punishing individuals for violating the sections.
Benitez concluded that the statutes violated, among other principles, the Second Amendment’s protections of the right to keep and bear arms. After the state appealed, the Ninth Circuit granted a request to stay the injunction and judgment pending appeal.
Bruen Framework
Ikuta applied the two-step framework established for Second Amendment challenges by the U.S. Supreme Court in the 2022 New York State Rifle and Pistol Association v. Bruen decision.
In Bruen, Justice Clarence Thomas, writing for the majority, declared that “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct,” but concluded that the government may show that the challenged regulation is permissible if it shows that the scheme is “consistent with this Nation’s historical tradition of firearm regulation.”
Ikuta, noting that “[b]ecause arms are inoperable without ammunition, the right to keep and bear arms necessarily encompasses the right to have ammunition,” reasoned that “the text of the Second Amendment” applies to the case at hand.
She added that jurisprudence has established that the entitlement would be hollow without the ability to acquire guns and that laws imposing conditions on the commercial sale of firearms and ammunition implicate the plain text of the Second Amendment if they “meaningfully constrain[]” the right.
Application of Rule
Applying those principles, she wrote:
“California’s ammunition background check regime regulates all ammunition acquisitions by California residents….It requires California residents to pay for and complete an in-person background check before each ammunition acquisition…..Though not all the rules comprising California’s ammunition background check regime impose delays on their face, they do not require California to approve checks within a certain time frame….After approval,…a California resident may be required to purchase ammunition during a specified period of time….Given the fees and delays associated with California’s ammunition background check regime, and the wide range of transactions to which it applies, we conclude that, in all applications, the regime meaningfully constrains California residents’ right to keep and bear arms.”
California pointed to loyalty oath requirements and disbarments present at the founding and during the Reconstruction—the two applicable periods given the timeframe of the adoption of the Second and Fourteenth Amendments—as well as other early regulations as historical analogues to the current regulatory scheme.
Ikuta responded:
“Because none of the historical analogues proffered by California is within the relevant time frame, or is relevantly similar to California’s ammunition background check regime, California’s ammunition background check regime does not survive scrutiny under the two-step Bruen analysis.”
Case Footnote
Ikuta considered a footnote in Bruen distinguishing “shall-issue” regulatory schemes—in which authorities are mandated to authorize purchases following a clean background check—from the “may-issue” rule invalidated in that case. Thomas noted:
[B]ecause any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.”
Ikuta opined:
“California’s ammunition background check regime is not analogous to a shall-issue licensing regime. Among other differences, the 43 states’ shall-issue licensing regimes cited in Bruen generally provided individuals with a license to engage in a course of conduct for a year or several years. By contrast, California’s ammunition background check regime requires an ammunition purchaser to undergo a background check prior to each ammunition transaction, regardless of when the last background check occurred.”
She added:
“The dissent analyzes the costs and delays worked by California’s ammunition background check regime on certain ammunition buyers….But Bruen rejects this approach…Although these facts may bear on whether a shall-issue licensing regime is abusive,…Bruen’s two-step framework does not generally entail a consideration of the fees and wait times placed on particular buyers.”
Bybee’s View
Bybee wrote:
“California, which has administered the scheme since 2019, has shown that the vast majority of its checks cost one dollar and impose less than one minute of delay. Nevertheless, the majority concludes that the scheme violates the Second Amendment because it lacks a historical analogue….In reaching this conclusion—by applying Bruen’s historical analysis at all—the majority has broken with our precedent and flouted the Supreme Court’s guidance.”
He argued:
“Laws regulating firearm and ammunition acquisition ‘meaningfully constrain’ the right to keep and bear arms— and thus trigger Bruen’s historical test—by ‘imped[ing]’ ‘access’ to firearms….California’s one dollar fee and ‘time of purchase approval’ for ammunition purchases do not ‘impede’ ammunition ‘access’….[T]he majority’s logic, which dwells on hypothetical ‘delays,’ contradicts the majority’s own insistence that we only consider the law’s text in this facial posture, and the Supreme Court’s warning in a Second Amendment case that we avoid belaboring onerous ‘hypothetical scenarios.’ ”
The judge asserted that the scheme is presumptively lawful as a “shall-issue” regulation and added:
“The majority invents a new rule to exclude California’s law from the realm of ‘presumptively lawful’ licensing regimes endorsed by Bruen….The majority concludes—after it decides that California’s law is ahistorical, and thus unconstitutional—that California’s law is not ‘presumptively lawful.’…In reaching this conclusion, the majority cites no authority; ignores the criteria that Bruen provided for evaluating a law’s presumptive lawfulness; incompletely applies Bruen’s analogical mode of reasoning; and, paradoxically, punishes the government for making its ‘presumptively lawful’ background checks more efficient.”
The case is Rhode v. Bonta, 24-542.
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