Plaintiffs Move for Injunction Blocking California Ammunition Background Check Law

kim rhode california ammunition background checks

Olympic skeet shooter Kim Rhode (AP Photo/Mark J. Terrill)

The plaintiffs in Rhode v Becerra, the lawsuit filed to challenge California’s law requiring background checks on all ammunition sales, filed a motion with the court on Monday requesting an injunction blocking enforcement of the law until the suit can be decided.

The suit is supported by the California Rifle and Pistol Association and has a raft of individual and retailer plaintiffs (such as Ammunition Depot) behind it, but the named plaintiff is multi-Olympic champion shooter Kim Rhode, a California resident.

As the motion states . . .

Plaintiffs bring this motion because sections 30312(a), 30312(b), 30314(a), 30370, and 30352(a-d) violate the Second Amendment right to acquire and possess ammunition by placing undue and unjustified barriers to the exercise that right and California Penal Code sections 30312(b) and 30314(a) also violate the Commerce Clause by regulating extraterritorially and in a discriminatory fashion against non-California commerce.

Here’s the Associated Press’s report.

A California affiliate of the National Rifle Association has asked a U.S. judge to block a new law requiring background checks for anyone buying ammunition.

The California Rifle & Pistol Association asked San Diego-based U.S. District Judge Roger Benitez to halt the checks and related restrictions on ammunition sales.

Voters approved tightening California’s already strict firearms laws in 2016. The restrictions took effect July 1.

The gun owners’ association challenged the ammunition background checks in a lawsuit filed last year and on Monday asked for an injunction, alleging it violates the Second Amendment right to bear arms.

The lawsuit has been joined by out-of-state ammunition sellers and California residents, including Kim Rhode, who has won six Olympic shooting medals and is trying to become the only person to win seven medals at seven consecutive Games.

“The scheme purports to funnel everyone seeking to exercise their Second Amendment right to acquire ammunition into a single, controlled source, an in-state licensed vendor, for the purpose of confirming purchasers’ legal eligibility to possess ammunition and to keep track of all purchases,” lawyer Sean Brady wrote. “While making sure dangerous people do not obtain weapons is a laudable goal for government, California’s scheme goes too far and must be enjoined.”

The motion raised concerns about identification requirements and high rates of denials among ammunition buyers undergoing the new background checks. Moreover, the system blocks out-of-state ammunition vendors from the California market, the motion argues.

The judge is expected to decide in early August whether to order a halt, though any such decision is almost certain to be appealed.

Benitez in October rejected the state’s attempt to throw out the lawsuit. He allowed opponents to proceed on arguments that the ammunition restrictions impede interstate commerce and are pre-empted by federal law.

The measure “criminalizes all of those (ammunition) transactions with merchants conducting business in other states,” he wrote in a preliminary ruling that the restriction “significantly burdens interstate commerce.”

He also preliminarily supported the argument that the new state law conflicts with a federal law allowing gun owners to bring their firearms and ammunition through California.

The California law “criminalizes bringing ammunition into the state that was purchased or obtained outside the state,” he wrote.

Benitez earlier this year struck down California’s nearly two-decade-old ban on high-capacity ammunition magazines. That triggered a week-long buying frenzy before he stopped sales while the state appeals his ruling.

The impending ammunition background checks sparked a surge in sales as firearm owners sought to beat new requirements, including that dealers report the brand, type and amount of ammunition to the state Department of Justice.

Gun owners who already are in the state’s background check database would pay a $1 fee each time they buy ammunition, while others can buy longer-term licenses if they do not have certain criminal convictions or mental health commitments.

Gov. Gavin Newsom has criticized Benitez’s lifting of the state’s ban on magazines holding more than 10 bullets, saying he is confident it will be reinstated by the 9th U.S. Circuit Court of Appeals.

Attorneys with San Francisco-based Giffords Law Center to Prevent Gun Violence anticipated that Benitez is likely to block the ammunition restrictions, but the law would eventually be upheld on appeal.

“Unfortunately this may be the one judge in the country” willing to rule that “people should be able to buy unlimited quantities of ammunition without background checks,” staff attorney Ari Freilich, who directs the organization’s California legislative affairs, said prior to the filing.

Gun owner groups have been pinning their hopes on a more conservative U.S. Supreme Court. But the center’s litigation director, Hannah Shearer, said there are unlikely to be the kind of conflicting lower court opinions that would prompt the justices to weigh in.

She said courts have upheld ammunition licensing laws in other states and she expects the 9th Circuit would do likewise.

 

comments

  1. avatar Stateisevil says:

    Yeah, I can promise you this law will remain and expand. The courts are a dead letter. Sorry. Time to put up or shut up.

    1. avatar Vic Nighthorse says:

      You first.

    2. avatar frank speak says:

      would appear to be an attempt to make an entire state a gun-free zone…..

  2. avatar Geoff WWJWD - "What would John Wick do?" PR says:

    “The motion raised concerns about identification requirements and high rates of denials among ammunition buyers undergoing the new background checks.”

    …and something tells me Cali considers that to be a feature, instead of a bug.

    There will be no end to laws like that harassing gun owners from here until the end of time by states intent on denying gun rights.

    Is there any way SCOTUS can send a blanket message to stop states from playing bullshit gamess like that? How is it handled with first amendment issues where a state would rather a certain subject of books not be sold?

    1. avatar I Haz A Question says:

      This is similar to saying you can buy a car (which must be registered and taxed), but you can’t buy any gasoline for it unless you obtain approval from the state and registration for each and every fill-up. And if you’re not in the “approved” database even though you’re a fully legal car owner, tough luck.

      As a Californian, I can tell you this is an absurd law. Schwarzneggar tried to pass it for the Dems ten years ago, but it was struck down three weeks before implementation due to vague wording. This current AB63 is round two, with improved wording to pass that original scrutiny, but is now a complete infringement on the 2A.

      1. avatar WLPmustGo says:

        Worse. I believe it makes you a criminal if you go to Nevada to purchase ammunition (ie, fill up your car with gas) and then go back into CA.

        How does that even pass rational scrutiny?

        1. avatar Mark N says:

          You can biy smmo in Nevada but theseer has to ship it to an instate licensed ammo vendor to process the transaction. Bringing it over the border ( unless you are a vendor) is an infraction.

        2. avatar I Haz A Question says:

          Generally a CA resident may not, but there are certain circumstances in which up to 50 rds per person, per border entry is permitted, though the caliber must match the gun(s) in question.

        3. avatar Sam I Am says:

          “I believe it makes you a criminal if you go to Nevada to purchase ammunition (ie, fill up your car with gas) and then go back into CA.

          How does that even pass rational scrutiny?”

          If a state declares ammo brought in from out of state is contraband, then you have a condition of smuggling, which is always illegal. Same as if a state bans rifles with certain features, and a state resident travels to a bordering state, buys a gun the resident’s state declared illegal (contraband); smuggling.

        4. avatar Sian says:

          So much for the few remaining shooting sports in California. Can’t bring your own ammo from out of state and can’t purchase it while there without a rectal exam.

      2. avatar MDH says:

        California no longer adheres to any provisions of the US Constitution, and has become in every sense of the word a “Rogue State”.

        Time to send in federal troops to restore order, jail California’s corrupt bolshevik politicians and eventually restore the rule of US Law.

  3. avatar Sam I Am says:

    “…there are unlikely to be the kind of conflicting lower court opinions…”

    Although the above is often a throw-away line when discussing SC and jurisdiction, the “split” concept is not derived from the constitution, it is judicial fiat. Take a close look at the concept. If every circuit court decides that an unconstitutional law is permissible because it fits the greater good, the SC would have no cause to to intervene. This is a perfect example of the potential for judicial tyranny.

    Of course, the SC could take a flyer and grant cert because a majority sees a compelling need to restore individual rights enumerated in the constitution.

  4. avatar RayS says:

    You reap what you sow. They elected these idiots, now live with the results. I left Cali in 87′, mostly because of the crowds, but this and other unjust gun laws just cinches it about ever going back.

    1. avatar I Haz A Question says:

      Except that conservative John Cox got 40% of the votes against Newsom last year. That’s 2 out of every 5 voters *NOT* wanting this.

      So stop lumping everyone into the same crazy bag. When you left in ’87, CA was still a red state and didn’t even have gun registration yet, let alone any of our current maze of restrictions. A lot has changed since then, and you no longer have any idea of the local struggle.

      1. avatar GS650G says:

        3 out of 5 will soon be 4 out of 5. How much longer the 1 allows themselves to be abused by the other 4 is the question.

        1. avatar I Haz A Question says:

          As I’ve mentioned in previous comment threads, it’s really dismaying that so many of our so-called 2A supporters outside of CA resign their brethren to failure and abandon us to fight for ourselves. And remember that CA is the juggernaut that often affects the rest of the nation. We fight harder for our rights here behind enemy lines than anyone, and that means we recognize and cherish our natural rights because ours are in genuine danger.

          Those who enjoy their rights in Free America (and don’t get me wrong, I truly envy and support you) don’t see the danger staring them in the face as we do, and therefore risk taking them for granted. That is *exactly* the complacent attitude we had thirty years ago that let the anti-gunners gain the ground they hold today.

          Everyone here at TTAG…we need your support, not your insults.

  5. avatar Manse Jolly says:

    “…The California law “criminalizes bringing ammunition into the state that was purchased or obtained outside the state,”

    I’ve been wondering how Ammo is imported into Cali. Do LGS need an importers license?

    Many major ammo manufacturers are not located in California. Not understanding how buying ammo from out of State is criminal.

    1. avatar I Haz A Question says:

      Manse,

      That statement in the article is misleading. A non-Californian may bring in (import) as much as he likes without restriction. A resident, however, may only bring in a maximum of 50 rds (frequency is not defined) under certain circumstances.

      I can tell you that ammo is most definitely being brought in. I was in NV for a firearms course shortly after the law took effect, and other Californians there were having discussions about how much they were choosing to bring back.

      1. avatar GS650G says:

        Another example of non residents of a state being less oppressed than the residents.

      2. avatar Manse Jolly says:

        It’s as if the West Coast including Cali is another country.

        I get the 10th Amendment and Sate sovereignty as far as Gun Laws go, but damn!

        1. avatar Sam I Am says:

          “I get the 10th Amendment and Sate sovereignty as far as Gun Laws go, but damn!”

          That is the way it was designed. Constitution only limited the central committee. The idea was that States (they were big “S” then) only agreed to join together for very limited power transfer from States to the central government. Everything within the States were left to the devices of the individual States. Since unrestricted travel between states was not a contested issue, the individual people would move here, or there, wherever they would prosper most. In the beginning, the States could craft and enforce an official religion (since that was legacy of the colonies), but the central government could establish zero official religion for the States. Now, one active relic from the days of the founding is the form of state law in Louisiana: Napoleanic, not English; 9th and 10th amendments in action.

          If you want to be a constitutional “originalist”/”textualist”, the above should be noted carefully, and there is much more.

        2. avatar GS650G says:

          Except guns are addressed in the USC. The 10th was a catchall for rights not addressed. Abortion is one example. Drugs are another. Guns should not be.

  6. avatar Jay in Florida says:

    Just another laughable law from the land of frutz nuttz and berries. That wont stop a single crime. But will make life more difficult for honest hard working people. Who just want to blow holes in almost anything for no good reason as it should be.

  7. avatar The Crimson Pirate says:

    This law is racist and offensive. The democrats told me we can’t require an ID to vote because many blacks and Hispanics can’t get IDs. This law will also prevent them from getting ammo. It needs to be overturned by the courts as a matter of social justice. Poor brown people with no Id have as much right to guns and ammo as rich white people with IDs

    1. avatar Geoff "Guns. Lots of guns." PR says:

      You have to have a picture ID to fly commercial.

      I have yet to hear of one poor POC demanding to board an airliner with no ID.

      That rationale needs to be exploited for voter ID laws, as well…

  8. avatar Carbine Williams says:

    The SCOTUS is afraid to pony up that the Second is indeed what it says.The right of the people to keep and bear Arms, shall not be infringed.PERIOD. They need to finally throttle the Ninth and any other court trying to legislate law.Not their job

    1. avatar Sam I Am says:

      “They need to finally throttle the Ninth and any other court trying to legislate law.”

      How would you propose the SC “throttle” the 9th Circus? Heller(s) and McDonald are ignored entirely without consequence.

  9. avatar retmsgt says:

    A big part of the problem is that the law WAS NOT enacted by the state legislature, where it would be subject to discussion, evaluation, additional input (yea or nay) from the populace represented, but rather by mob rule, with no protections for those not part of the mob. Such is what “popular ballot initiatives” permit. As for those that might object? Well, they’re outnumbered, regardless of the validity of their claims.

    1. avatar Crabbyoldguy says:

      Seems like a good argument to make to strike down the legality of ballot initiatives.

      1. avatar UpInArms says:

        Article IV, Section 4: The United States shall guarantee to every State in this Union a Republican Form of Government…

        Ballot initiatives are direct democracy, not a Republic. This article of the Constitution ensures that the representatives in any government may not, by legislation, hand over the decision-making process to the mob, or anyone else.

        If the representatives feel they’ve had enough of that democracy stuff and want to put in a monarchy, in political theory they are free to do so. Or they could legislate in a dictatorship– whatever the choose. Article 4, Section 4 prevents them from doing that– the states must have a republican form of government, and the structure of a Republican government is pretty well set.

        Ballot initiatives are beyond the boundaries of what constitutes a Republican government. Therefore, any law created by ballot initiative should be invalidated.

        Not the case, unfortunately. I did a brief amount of research and couldn’t find anywhere where this issue has ever been raised in the courts. So, until someone jumps and challenges a ballot initiative law, we’re stuck with them.

        1. avatar Sam I Am says:

          “Article IV, Section 4: The United States shall guarantee to every State in this Union a Republican Form of Government…”

          The constitution does not prohibit direct democracy that is established through the republican government. Nebraska has a unicameral form of government. Republican form, or not? If not, how has it remained such from its inception and absorption into the nation as a state?

          Ballot initiatives cannot set aside the legislature, as in eliminate (which would end a republican form of government). Nor the executive or judicial branches. In states with ballot initiatives, the voters, through their elected representatives (the legislature) petitioned (lobbied?) the legislature to establish a means to correct the legislature when necessary. Else, a single-party government can disenfranchise the voters for the duration of elected office.

          A republican form of government does not require the legislature to serve the people, only that the legislature be elected representatives. Without ballot initiatives, what remedy for immediate legislative harm do the people have?

        2. avatar UpInArms says:

          ” Nebraska has a unicameral form of government. Republican form, or not? ”

          Republican, no doubt about it. The primary defining feature of a Republican government is the inclusion of a legislature composed of elected representatives. The laws are made by these representatives. It makes no difference if the legislature is one, two or even more houses– Great Britain is unicameral, and it is a Republican government.

          It is this step of separation the distinguishes a Republican form of government from a direct democracy. The ultimate authority– sovereignty, if you like– doesn’t rest with the voters. It rests with their representatives.

          A ballot initiative closes this separation. What the voters want to be law becomes law. The sovereignty is shifted away from the representatives and on to, if you will, the mob.

          In most cases, the ballot initiative is not (state) constitutionally granted. It is validated by an act of the legislature, meaning the legislature legislated itself out of the process, if only for a single issue. If it can do that, it can legislate itself into a monarchy (or whatever) and disband itself. This is the situation that Art4Sec4 is meant to prohibit. Therefor, any law that came about via ballot initiative is in violation of the US Constitution.

        3. avatar Sam I Am says:

          ” The ultimate authority– sovereignty, if you like– doesn’t rest with the voters. It rests with their representatives.”

          Not sure that would pass in a con law course, or among the founders. Every act of the legislature is at the will/permission of “the people”. Elected officials cannot exist if not elected by the people. If “the people” can elect and un-elect representatives, the legislature is not sovereign, nor the source of authority. The legislature is an “agent” of the majority of voters, having no power beyond that granted by the vote of the people.

          “Therefor, any law that came about via ballot initiative is in violation of the US Constitution.”

          Where ballot initiatives are permitted, the representatives are representing the will of the people (the actual sovereigns/authority) in establishing the initiative measure. The constitutional dictate that all state governments must be republican prevents the ballot initiative from eliminating legislatures. Such an attempt would be directly unconstitutional.

          On a practical note, not aware of any federal case attempting to invalidate ballot initiatives (there may be one, or some, I just am unaware).

        4. avatar UpInArms says:

          One of the primary purposes of a constitution is to establish a process for creating and enacting legislation. This process can not be altered unless the constitution is altered to allow it. The process has to be the same for every law or the government loses its legitimacy when laws come from arbitrary sources. This is not a trivial matter. Executive Orders and courts “legislating from the bench” are good examples of subverting the process and handing over sovereignty to arbitrary agents.

          Ballot initiatives alter the legislative process. They allow the legislature to kick the can down the road and forfeit the decision-making and the accountability of voting to pass legislation. But mostly they remove the very step of separation that defines a Republican form of government and turns it in to something that is NOT a Republican form of government. So any law passed by ballot initiative has not gone through the process that a Republican form of government mandates– it has not been voted on by the legislature– and it is therefor in violation of the US Constitution. And that, I believe, would pass muster in a con law course, and there is a plethora of evidence that the Founders were determined to hold the mob at bay.

        5. avatar Sam I Am says:

          “Ballot initiatives alter the legislative process. They allow the legislature to kick the can down the road and forfeit the decision-making and the accountability of voting to pass legislation. ”

          The republican form remains, does it not? People still elect representatives, a legislature still exists. The constitution does not prohibit ancillary political action within a republican form. The constitution dictates a form, not the inner workings of legislatures in States (which jealously guarded their internal governments, state and local).

          We all find it attractive to impute our own ideas of deduction from the written word, but truth is, if the founders had intended that no state be allowed to expand upon their republican form of government, they were clear-headed enough to foresee the need, and not dependent on later generations to fill the gaps in their thinking.

          “Unconstitutional” is a legal term of art. Since we know of zero legal actions to remove the very existence of ballot initiatives, those features remain “constitutional” until differently decided by the federal courts, ultimately the SC.

        6. avatar UpInArms says:

          ” The republican form remains, does it not? ”

          No, it does not. By definition, Republican demands that legislation be passed by the elected agents, not by the public via referendum.

          Instead of throwing initiatives on the ballot case-by-case, suppose the legislature decided to put every piece of proposed legislation up for referendum. If they can do it for one, they can do it for all. The legislature could then adjourn on the first day of session and all go home and do fund-raising. Would you say then that the Republican form remains?

          ” Since we know of zero legal actions to remove the very existence of ballot initiatives, those features remain “constitutional” until differently decided by the federal courts, ultimately the SC. ”

          The fact that ballot initiatives are in use does not make them constitutional, any more than an unsolved crime means the crime never happened. Ballot initiatives are not inherently constitutional simply because they exist. They are merely unchallenged, and will remain in use until someone takes the issue to court and obtains a ruling. Since this challenge has never been made, we will just have to wait it out until some ambitious lawyer files the lawsuit. Then we will know.

        7. avatar Sam I Am says:

          “Republican demands that legislation be passed by the elected agents, not by the public via referendum.”

          If an elected legislature exists, the republican form of government exists, by definition. Not seeing any definition of republican form of government that posits ballot initiatives negate, overturn, remove, eliminate the republican form.

          If the nation can accept judicial rule, why should it be denied the ability to discipline its elected representatives more directly than waiting for scheduled elections? If, as the founding documents and writings claim, government is the servant of the people (the electorate), then except as explicitly (not inferred) stated in the constitution, the people hold the only legitimate power, and can design governing regulations to meet the need of the people. While totally bypassing the legislator, relying completely on ballot initiatives, may, may be ripe for challenge, we do not see that anywhere in the nation.

          The real issue with ballot initiatives is that it throws in our faces that we, non-authoritarians, do not have the political power (inability to persuade the electorate) to stop the slide into total government control over our lives. Ballot initiatives accelerate, but are not the cause of, the destruction of the nation as founded.

        8. avatar frank speak says:

          ballot initiatives don’t seen to count for much when it comes to gay marriage…

    2. avatar Sam I Am says:

      “A big part of the problem is that the law WAS NOT enacted by the state legislature,…. but rather by mob rule, with no protections for those not part of the mob.”

      Were the pro-2A voters denied their votes? Are there enough pro-2A members of the legislature to have an ability to defeat, or heavily modify the ammo law?

      Seems that by elected representative vote, or popular vote, gun owners in Californication will continue to lose ground. And if granting a drivers license automatically establishes one as a registered voter, game over permanently.

  10. avatar route66paul says:

    Ca’s ballot initiatives have brought many laws that would never pass the scrutiny of the state legislature, prop 13 being one of the worst. They froze property taxes at the point(after 1976) that you purchased your home. So the people are not encouraged to move up, many neighborhoods that had kids in every home are full of 80 year old widows. The only help it gave was to commercial real estate owners, who just form o corporation and sell the corporation(the corporation owns the property, not the person, so all those high rise buildings and many apartment complexes do not pay any more property tax than they did in the 70s. They do rent to families with many children, and in these areas, the schools can not even afford a full set of books for each classroom.
    Any law initiative is just a bad law with a lot of money behind it – you can bet that it is not good for you.
    Yes, older Californians benefited a little from freezing property taxes, but the drop in services, the charging for fire department and paramedics has over run any real savings – plus they are stuck in a home that is too big, but they are paying taxes based on a 40k purchase, rather than a 500k purchase of a condo……..

    1. avatar I Haz A Question says:

      Close, but not quite. Prop 13 didn’t enact a freezing of property taxes; rather, it established a baseline that became more predictable and manageable. The taxes may be increased either (1) by about 2% per year or (2) if the County Assessor decides to re-assess your property. I know…when Jerry Brown became Governor back in 2011, one of the first things he did was rein in the state budget, which meant cancelling or cutting back financial aid to counties. Those counties, in turn, needed to make up for the losses and promptly went through their property assessments for review on a mass scale. My own annual taxes suddenly jumped about +25% the very next year. There’s an appeal process, but it’s very arduous and lengthy, and there’s no guarantee you’ll get the outcome you desire.

  11. avatar GS650G says:

    Gun control is still being enforced in stores and other points of sale. When this fails what’s next I wonder.

  12. avatar TommyJay says:

    If the Republican party and politicians had any chutzpa, all this garbage could be struck down via the interstate commerce clause. Madison explained that this a negative power. The clause was not intended to allow the feds. to add regulation on interstate commerce, but rather a power to remove onerous state regulation on interstate commerce. Like restrictions on ammo sales; or CA’s boutique gasoline formulations; or the state CARB auto emission regulations.

  13. avatar Scott Ackman says:

    Until the US Supreme Court puts an end to all of the states interfering with a constitutional right we will continue to suffer from tyrants like Newsome who want to do away with it.

  14. avatar Roh-Dog says:

    Someone I may, or may not, know has purchased ammo for out of state personnel here in the PRoConnecticut.
    All debts, public and private, in God we trust.
    Remember folks, America was founded on not paying taxes and armed ‘insurrection’.

  15. avatar Jim Bullock says:

    Ok, plain reading of various constitutional clauses seems to say you need the state overlords’ permission to exit their beneficent embrace. (Not sure plain reading counts for much, but…)

    But, we have lawyers, n finding a way through paper chains is what they do.

    You can’t split out to be another state, somebody said. OK, how about a federal territory? Once the Free Territory of Jefferson becomes a federal possession, they can maybe petition for statehood?

    I ask because the occupied territories of up-state NY have been looking for a way out for 40 years. Sadly, every time the down-staters decide *they* should secede, we say “Yes” and they chicken out.

    Or do we need to help Roberts find a penumbra? RBG (and the ghost of Stevens) an international precedent to follow?

    I do wonder when separatist became a bad word. States and nations: collections so good we have to use guns to keep people in them. (Just like the E U, now.) And we keep people disarmed so it’s too dangerous to leave.

    Govt crafted to be the lesser evil vs defenseless anarchy seems to be aiming a bit low. Maybe they should try to do better.

  16. avatar Vlad Tepes says:

    The Courts even Conservative Courts never met a gun or ammunition ban they did not love as it gives them ever more power over the proletariat. Expect this new law to stand or be slightly amended and to last until the Universe implodes upon itself.

  17. avatar Alan says:

    The ownership, the possession, the use of firearms in a lawfull manner is a basic civil right. It’s also a constitutional right. Correct me if you find my position in error. That being the case, when, if ever might the electorate in California wake up, smell the coffee, and assert their rights? When, if ever, might the above referenced wake the hell up and quit electing to public office, people who appear bound and determined to trash the basic civil and constitutional rights of California residents. I find myself really curious concerning the above posed question. Answers please, from knowledgeable and or from interested or concerned parties. By the way, once upon a time, it was many years ago, I lived for a while in California, The Bay Area as it was and is known.

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