Ninth Circuit kills California's ammo background check law

PASADENA, Calif. (CN) — California’s law requiring background checks every time a gun owner wants to buy ammunition violates the Second Amendment because it constrains people’s rights to keep “operable arms,” a panel of Ninth Circuit judges ruled on Thursday.

Because California’s law forced gun owners to pay a fee and face some delays while the state processes their background check, the three-judge panel found the law constrains residents’ right to keep and bear arms in violation of the Second Amendment.

“The Supreme Court has indicated that the Second Amendment protects ‘operable’ arms. Because arms are inoperable without ammunition, the right to keep and bear arms necessarily encompasses the right to have ammunition. A firearm is not available ‘for the purpose of offensive or defensive action,’ if it is unloaded. In other words, the right to keep and bear arms incorporates the right to operate them, which requires ammunition,” wrote U.S. Circuit Judge Sandra Ikuta, a George W. Bush appointee, in the panel’s majority opinion, quoting District of Columbia v. Heller , a 2008 Supreme Court decision.

In 2018, Olympic medalist skeet shooter Kim Rhode and other gun owners sued Xavier Becerra, then state attorney general, in San Diego federal court.

The suit challenged two intertwined state laws. Proposition 63, passed by voters in 2016, required gun owners to pay $50 and undergo a criminal background check to receive a four-year permit to buy ammunition. But before the proposition passed, the state Legislature prospectively amended it to require gun owners to submit a background check every time they wanted to buy ammunition and barred gun owners from purchasing ammo from out-of-state vendors.

In April 2020, a lower court judge blocked California from enforcing the background checks. The state then appealed, but the Ninth Circuit remanded following the U.S. Supreme Court’s ruling in New York State Rifle & Pistol Ass’n, Inc. v. Bruen , which requires any restrictions or regulations involving firearms must be justified through a “historical analogue” — a similar burden imposed in the past, namely when the Second Amendment was written.

The lower court permanently blocked California from enforcing the law in January 2024.

The state then challenged the ruling at the Ninth Circuit for a second time, but could not convince the appeals court of an appropriate 18th-century analogue to justify the background checks for ammo.

In his dissenting opinion, U.S. Circuit Judge Jay Bybee lambasted the majority opinion as breaking with precedent, flouting the Supreme Court’s guidance on Second Amendment law and suggesting that the court’s opinion now casts any and all laws regulating guns as unconstitutional.

“California’s law — which, on its face, imposes no delay, and a mere one-dollar fee — is not the kind of heavy-handed regulation that meaningfully constrains the right to keep and bear arms. The law does not categorically limit the amount of ammunition that Californians may purchase, akin to the law that we recently found unconstitutional in Nguyen ,” wrote Bybee, a fellow George W. Bush appointee, referencing a recent Ninth Circuit case that found California’s so-called “one-gun-a-month” law to be a violation of the Second Amendment and therefore unconstitutional.

“The majority has not even attempted to explain how these features necessarily ‘impede’ firearm access. Instead, the majority has described, in the broadest possible terms, the essential features of any state or federal regulation governing acquiring ammunition. Its conclusion is bereft of analysis; it describes California’s scheme and announces its conclusion, as though the Second Amendment violation were self-evident,” he added.

Ammunition is an “ancillary right,” Bybee wrote. The court only needs to proceed to Bruen ’s historical analysis step if the challenged law constrains the right to keep and bear arms.

“By the majority’s reasoning, any regulation of sales of ammunition is presumptively unlawful, unless the state can produce an identical historical twin. I doubt that any state will be able to do so, any more than a state will be able to show a strong tradition of state regulation of arms sales when the Second Amendment was adopted. The implications of the majority’s analysis flatly contradict Heller and Bruen ,” Bybee wrote.

A spokesperson for California’s Department of Justice expressed disappointment with Thursday’s ruling because it opens “a dangerous loophole.”

“Ensuring the safety of our communities starts with commonsense, lifesaving laws that prevent ammunition from falling into the wrong hands. Our families, schools, and neighborhoods deserve nothing less than the most basic protection against preventable gun violence, and we are looking into our legal options.”

Attorneys for the plaintiffs did not immediately respond to a request for comment.

“Strong gun laws save lives — and today’s decision is a slap in the face to the progress California has made in recent years to keep its communities safer from gun violence. Californians voted to require background checks on ammunition and their voices should matter,” California Governor Gavin Newsom wrote in a press release after the publication of the ruling.

U.S. Circuit Judge Bridget Bade, a Donald Trump appointee, rounded out the panel.