Ninth Circuit hears debate over ammo background checks

(CN) — The Ninth Circuit heard arguments Monday on whether to reverse an order finding California’s ammunition background check requirement is unconstitutional by the federal judge largely responsible for eviscerating California’s overwhelmingly voter-approved gun control measure, Proposition 63.

In April, U.S. District Judge Roger Benitez, a George W. Bush appointee, blocked California from enforcing the provision in Proposition 63 that requires purchasers to undergo one of two main background checks to confirm they can legally purchase ammunition.

The Ninth Circuit granted an emergency stay of Benitez’s 120-page order this past May after state Attorney General Xavier Becerra said ammunition vendors — including online sellers — immediately began selling ammunition without performing background checks on purchasers.

Proposition 63 was passed by 63% of voters in 2016. The gun control legislation has been chipped away at by Second Amendment advocates, including the California Rifle & Pistol Association, whose lawsuits challenging the law have ended up in Benitez’s court due to an obscure court rule in the federal district in San Diego requiring “related cases” be assigned to the same judge.

On Monday, a Ninth Circuit panel considered whether to reverse Benitez’s finding that background checks for ammunition purchases are unconstitutional.

Deputy Attorney General Nelson Richards said the two background checks ammunition purchasers can use — standard or basic background checks — work in conjunction. He said Benitez got it wrong that being rejected under the default “standard” background check meant a purchaser was subject to a complete ban on the right to purchase ammunition in California.

“That’s just simply incorrect,” Richards said when responding to questioning by U.S. Circuit Judge Patrick Bumatay, a Donald Trump appointee.

“Someone can always use a basic check to purchase ammunition so long as they pass that basic check … The assumption when someone has a standard check rejected there’s been some kind of violation [is] an assertion that withstands virtually no scrutiny,” Richards added.

Richards said the majority of those who are rejected under the standard background check system — which costs $1 — is for name and address inconsistencies or because a purchaser has no record in the firearms database used by the state.

When asked by Bumatay why the background check process “isn’t onerous,” Richards noted it’s “the same check people go through to purchase a firearm, which has been around for decades.”

Richards said the background check system has stopped about 100 people a month from illegally purchasing ammunition in California.

“I think the state has a significant interest in saying ‘Look, there are hundreds of people — prohibited, dangerous people — being stopped from purchasing ammunition because of this law, while at the same time, hundreds of thousands of transactions are taking place in a process that costs a dollar and can take a matter of minutes,’” Richards said.

He added: “There’s no real burden here, and if there was, you would have to assess it based on someone’s unique situation.”

But Kirkland & Ellis attorney Erin Murphy, representing Olympic medalist skeet shooter Kim Rhode and the California Rifle & Pistol Association, said if California’s ammunition background check system were not burdensome, “pretty close to 100%” of those initially denied approval to purchase ammunition under the standard background check would simply “shift over” and go through the basic background check process.

Instead, half of those denied under the standard background check never went on to successfully complete a basic background check and legally purchase ammunition, Murphy said.

She said it “is [the best evidence] we have the basic check is unduly burdensome to preclude the exercise of constitutional rights.”

Murphy said the $19 cost of performing a basic background check, coupled with the waiting period to get approval, was problematic. She noted “many a box of ammunition costs $10” or less, with some only priced at $4 a box.

“So you can essentially pay a 500% tax and wait to come back multiple days later to get ammunition,” Murphy said of the basic background check.

But when asked by U.S. Circuit Judge Paul Watford, a Barack Obama appointee, whether there was evidence the $19 price tag exceeds the state’s cost to run the background check, Murphy said no.

“The basic check is having the effect of deterring one in two Californians who can’t use the standard check from proceeding with their purchases of ammunition,” Murphy said.

When asked by Watford why a waiting period for ammunition is problematic when there’s a waiting period to buy a gun, Murphy said it isn’t about the state’s interest — it’s about whether the state’s means are suitable.

“The state already has plenty of other things in place that make it highly unlikely the people they’re going after are going to come purchase their ammunition through these types of lawful channels since it is already illegal for them to do so in the first place,” Murphy said.

U.S. Circuit Judge Barrington Daniels Parker Jr., a George W. Bush appointee sitting by designation from the Second Circuit, rounded out the panel, which took the matter under submission.

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