ammo ammunition feat
Dan Z. for TTAG
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Late Friday evening, two judges from the Ninth Circuit Court of Appeals issued an “administrative stay,” blocking an injunction issued by District Court Judge Roger Benitez. The Benitez injunction halted enforcement of California’s deeply flawed ammunition background check system and allowed Californians to briefly buy ammo locally or online like normal people do elsewhere.

The Ninth Circuit judges three-line order staying the Benitez injunction promised to address the state’s emergency stay request in a separate motion.

Now, almost a week later, the plaintiffs in Rhode v. Becerra have filed a motion with the Ninth Circuit asking that the administrative stay be lifted and that the court deny the state’s emergency motion for a stay of Benitez’s preliminary injunction.

As the plaintiffs argue . . .

According to the State, its scheme is immune from Second Amendment scrutiny because it is one of those “laws imposing conditions or qualifications on the commercial sale of arms” that the Supreme Court described as “presumptively lawful.” Opp’n 12. But the Ninth Circuit has already said not only that the Second Amendment protects the acquisition of ammunition, but also that “Heller does not include ammunition regulations in the list of ‘presumptively lawful’ regulations.” Jackson v. City and Cty. of San Francisco, 746 F.3d 953, 967-68 (9th Cir. 2014). In all events, whatever the Supreme Court intended to be a “presumptively lawful” commercial sales regulation, it certainly did not have in mind a law that could deny substantial numbers of people their rights.

You can read the full motion read the full motion here.

Watch this space.


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  1. Denied. Stay in place until upholding this law as well as the mag ban in the years ahead.

    Thank you Mario, but our Princess is in another Castle. Forever.

  2. The Smart Money is ALWAYS on Gun Control with it’s further restrictions, bans, etc. It’d be nice to get a few victories for a change.

    • Perhaps. But consider the following:
      (1) It is an *extraordinarily* heavy lift for a USCA to reverse / stay a preliminary injunction, especially one that touched all the bases in a lengthy opinion with detailed findings / conclusions. To do so, they are going to have to overrule numerous findings of fact that are supported by considerable evidence. Even CTA9 is not going to want to set the precedent of doing so, as it would open the floodgates on other (non 2A) injunctive relief cases, as well as creating so small amount of havoc WRT Ninth Circuit procedural precedent.
      (2) The instant CTA9 ain’t your father’s Ninth Circus. There’s a way to go, but we’re approaching parity of GOP/Dem appointees, and so the numbers can sometimes be in our favor. See, e.g., panel opinion in Young v. Hawaii.
      (3) The record in this case is so bad for California that even the antis on CTA9 are going to have to worry that if they stretch out to enjoin this, they may be giving Los Supremos a very easy test case to expand Heller. (If you doubt that they are worried about this, look at how they are handling the en banc request in Young v. Hawaii.) Especially given that this law was enacted by referendum, it may just be a bridge too far for the antis on CTA9.

      We’ll see, but I won’t be shocked if the administrative stay is terminated fairly shortly.

  3. Ammo TAX law? I thought the case was about the background check and in-person purchase requirement.

    • It’s also a tax since you’re forced to pay for the background check every time you buy ammo.

      • Supreme court upheld obama care in the same way. As taxes are a legal authority of government. Look for the 9th to do likewise. The 2nd A has No friends in the court system. Regardless of level. It will always be a kite set adrift in the winds of political favor. Keep Your Powder Dry.

      • doesn’t this put the government at a legal impasse as far as gun control is concerned? Isn’t the NFA post-Hughes basically a tax that you will be arrested for not paying but the government will refuse to let you pay it? I’m not a lawyer but I don’t see how that could survive legal challenge.

        • You are correct. Another tactic that could render the NFA “null and void” that of “cruel and unusual punishment”. A ten-year prison sentence and a $10,000 fine could be construed as “cruel and unusual” punishment for failure to pay a $200 “tax”.

        • I recently read that DoJ dropped the prosecution of an NFA case because the defendant was challenging the Hughes Amendment on a similar argument. They were afraid that if it went up, based on the reasoning of the Obamacare decision the Hughes Amendment might go down.

        • If someone was brave enough it would be funny to use the ATF eForm site to pay the tax to make a machine gun. It would be hard to argue that you didn’t pay after they charged your credit card. It’s not your fault they decided to refund your money.

        • A non-FFL is not permitted to create/possess an NFA item until AFTER the stamp has been issued. If you attempt to create a machine gun, post-86 as a non-FFL, you’ll get your application back with a great big DISAPPROVED stamp on it. I believe they also instruct you to destroy anything you made in the mean time. Then you’ll have to wait another 6 months after that for the treasury to send you a check to replace the money they took at first.

          Yes, I know this from personal expxerience 🙂

    • This is only loosely associated with this article, though my comment has to do with California micro-managing everything, so…

      For those of us who live here in CA, remember when former Gov. Jerry Brown rode the “Fight For 15” wave and championed the biggest minimum wage increase in the state’s history? At the time he signed the (Democrat, of course) bill into law, our minimum wage was $9.00, and was scheduled for incremental increases until it reaches the much-ballyhooed $15.00. As it began to go up and businesses responded accordingly by reducing employee hours and/or positions, or leaving CA entirely, there was a line of reasoning that expected Sacramento to place a “pause” at some point (perhaps at $13.00?) to deal with the economic damage their folly had wrought. But it never happened. To put this into perspective, my employer had 350+ employees when Brown signed the bill into law. After the subsequent mandated increases, we were forced to compensate in order to balance our payroll and are now around 225.

      Two months from tomorrow, on July 1, unincorporated Los Angeles County will finally trigger the final upstep to $15.00/hr. You’d think that someone in Sacramento would have said by now “hey, we have this COVID debacle wiping out our hopes for a smooth economic recovery, so maybe we should postpone or cancel the upcoming wage increase, and help our remaining small businesses whom we haven’t yet driven into insolvency?”

      I’ve heard nothing on the matter, from any source anywhere.

      • When evil and idiocy marry it produces a really ugly off-spring. Sorry Californians.

  4. shared authority by both state and fed…taxes are bullshit and should be abolished. ninth has a set number of judges, two should not be legal to make any law……

    • Judges do not make laws. They can grant or deny motions, and a panel in the Court of Appeals is only three, so two out of three is enough. Further, a stay is not a “law,” it is a ruling on a motion, and only “temporary.” In this case, temporary is only long enough for them to rule on a formal motion to stay the preliminary injunction. Once that motion is decided, win or lose, the outcome will rule until the case is formally decided and remanded to the trial court. At this stage, the trial court has not entered a judgment on the merits of the case; the State is appealing a preliminary step in the liti8gation.

      But I do agree that the sole purpose of the State’s motion to stay the preliminary injunction is delay, i.e., to keep the law in effect until the trial court issues a final judgment and the inevitable appeal of the judgment is determined several years from now.

  5. And yet again, another absolute slaughter of the intended meaning of the phrase “presumptively lawful.”

    In Heller, Scalia used the phrase in a FOOTNOTE, to describe a sample list of prohibitions that were OUTSIDE THE SCOPE of Heller. There was no other possible way to describe those prohibitions, because Heller was not considering them. Not whether they were lawful. Not whether they were UN-lawful. Since Heller was not considering those prohibitions, it was “presumed” that they were lawful. Because there was no other mechanism to make any other finding about them.

    Scalia used “presumptively lawful” to describe the Status Quo of those prohibitions at the time.

    Nearly ALL the gun-haters have turned that meaning on its head to make the claim that Scalia’s acknowledgement of the Status Quo at that time should mean that he was actually blessing all other “not-in-scope-of-Heller” prohibitions to be “lawful.”

    As with virtually everything else the gun-haters say, this whole premise is nothing but a bold-faced LIE.

    • Scalia meant well but should have closed the door better. Still, Heller is probably the main reason Big O didn’t go to his funeral preferring to watch a baseball game with a murderous dictator instead.

    • The judges really screw us when they start getting to wordy. They should issue the opinions in the shortest, simplest term possible, and not venture off into something else. Like most book-smart people, they just don’t know when to STFU. They keep going, and going, and going.

      You know the friend that gets you in trouble because he talks to much and gives out information that irrelevant to the situation? That’s basically what the judges do.

  6. What is balls? Not worth a rat’s ass. I stay up top eating crackers. Them tunnel rats was something else. Cold blooded killers extriodinaire. I’m pretty bad ass but No Way. Not Worth A Rats Ass

  7. This is who rules you.
    This is who rules you.
    This is who rules you.
    Not elected representatives, but appointed judges.

  8. Yet another example of Heller being used against gun owners. They drive trucks through its loopholes.

    • Yup, and they’ve ever done so, not just with Heller. People here blaming Scalia for not shutting the door tight, but Roberts was the key player in this, aaaand the bartering that had to be done for his affirmation.

      • Not blaming, just an observation on the behind closed door history most aren’t aware of. I agree on the point that Scalia compromised too much for Roberts comfort zone, when the door should’ve been slammed on all of this back then.

    • See my comment posted above. No opinion can be perfect, but most of the abuse of Heller is from the intentional misrepresentation of the phrase, “presumptively lawful” by the gun-haters.

      They hijack that term to claim that Heller specifically found all existing gun control laws to be constitutional. This is absolutely wrong. The gun-hating judges on the lower courts are the ones to blame for this, far more than Scalia.

  9. Why don’t someone buy a old Ship/Aircraft Carrier with active Landing & Takeoff & float that thing off the coast of Commiefornia and sell ammo & guns free of regulations with free shuttle service……the buffoons in cali would lose their minds!

    Whoever does this I will only take 25% of sales…

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