Judge: Background check for each bullet buy is unconstitutional

A federal judge in San Diego has struck down another part of a voter-approved California ammunition law as unconstitutional, setting up another appeal to the 9th U.S. Circuit Court of Appeals by the state — and a request for a stay of his decision in the meantime.

Senior U.S. District Judge Roger T. Benitez, an appointee of President George W. Bush, ruled that a law requiring background checks on ammunition purchases violates the Second Amendment and the dormant commerce clause, and is preempted by federal law.

“A sweeping background check requirement imposed every time a citizen needs to buy ammunition is an outlier that our ancestors would have never accepted for a citizen,” he wrote in an opinion filed Tuesday. “Therefore, California’s ammunition background check system laws are unconstitutional and shall not be enforced.”

Benitez enjoined Attorney General Rob Bonta and police officers from enforcing the law, which was passed by voters in 2016 and amended by the state Legislature three years later. Rhode et al. v. Bonta, 18-CV-00802 (S.D. Cal., filed April 26, 2018).

Bonta defended the law Wednesday in a post on X, formerly known as Twitter. “Background checks save lives,” he wrote. “We’ll continue to fight to keep Californians safe and ensure these vital protections remain in place.”

Deputy Attorney General Christina Lopez filed a renewed request Wednesday asking Benitez to stay his decision pending appeal or, failing that, to grant a 10-day administrative stay while the attorney general’s office seeks a stay from the 9th Circuit.

In two earlier cases before Benitez, in which the judge struck down California’s large capacity gun magazine ban and semi-automatic weapons ban as unconstitutional, 9th Circuit panels granted the state’s request for a stay. Duncan v. Bonta, 23-55805 (9th Circ., filed Sept. 25, 2023); Miller et al. v. Bonta et al., 23-2979 (9th Circ., filed Oct. 23, 2023).

“Just as in Miller and Duncan, a stay pending appeal — and at a minimum a brief stay to seek relief from the Court of Appeals — is warranted in this case,” Lopez wrote. “If the decision is allowed to stay in effect, it would irrevocably alter the status quo by enjoining enforcement of laws that have been in effect for over four years; allowing prohibited California residents to acquire ammunition during the appeal; and jeopardizing public safety.”

She added that it would be difficult to “restore the status quo” if a stay is not granted, because a lot of ammunition would have been sold while the case is on appeal.

C.D. “Chuck” Michel, a senior partner at Michel & Associates PC who is also president and general counsel of the California Rifle & Pistol Association, hailed the ruling in an email as a “big win.”

“This law, like most of California’s gun control laws, has not made anyone safer,” he wrote.”But it has made it much more difficult and expensive for law-abiding gun owners to exercise their Second Amendment right to defend themselves and their family, and has blocked many eligible people from getting the ammunition they need — which is the true political intent behind most of these laws.”

As he has done in two other Second Amendment cases, Benitez cited the U.S. Supreme Court’s decision in District of Columbia v. Heller, 554 U.S. 3 570, 594 (2008), and its new “history and tradition” standard for evaluating the constitutionality of gun laws established in a June 2022 U.S. Supreme Court ruling. New York State Rifle and Pistol Association v. Bruen, 20-843 (S. Ct., filed Dec. 17, 2020).

He rejected the state’s contention that there are historical analogues for its background check requirement. The judge wrote that “the flaw in the government’s argument is that there are no historical laws that have been identified that required ammunition background checks by any means, however slow or imperfect they might have been.”

This disagreement between Benitez and the state is a familiar one, as a similar debate played out in Duncan and Miller.

A 9th Circuit en banc panel is scheduled to consider the state’s appeal of his order striking down the large capacity magazine ban in mid-March, and a three-judge panel considered a near-identical debate last month over the law banning some semi-automatic rifles.

The state appears to have an advantage in the first two cases, because the en banc panel in Duncan — the large capacity magazine ban case — has already ruled 7-4 to grant a stay pending appeal that the state is likely to prevail. Judges on the Miller panel said during oral arguments last month that they would likely take their cue from the court considering Duncan.

The 9th Circuit’s consideration of Second Amendment cases has been noticeably partisan thus far. All seven of the judges in the Duncan majority were appointed by Democratic presidents. The four dissenters all were chosen by Republican presidents.

In the end, legal experts expect all of these cases to be decided by the U.S. Supreme Court.