Ninth Circuit: Ammo Background Check Likely Constitutional

May 15, 2020


Matthew Hoy

In response to a 120-page preliminary injunction by District Court Judge Roger T. Bernitez highlighting flaws in California's ammunition background check system and unconstitutional limits on interstate commerce, a three judge panel of the Ninth Circuit ruled 2-1 that the state was likely to prevail on the merits.

Judges Barry Silverman, a Clinton appointee, and Jacqueline Nguyen, an Obama appointee, stated that the landmark Supreme Court ruling in Heller, which acknowledged there is an individual right to keep a firearm for self-defense, also stated that those rights are not unlimited, therefore this law limiting access to ammunition is presumptively constitutional.

The judges also counted for the state the fact that Judge Benitez allowed the law to be in effect for nine months as evidence allowing the infringement of the rights of, at the very least, tens of thousands of Californians to purchase ammunition to continue.

Recall that Benitez's findings of fact showed that more than 100,000 Californians who are not prohibited possessors were prevented from buying ammunition while the state's background check regime only prevented about 700 prohibited individuals from buying ammunition.

Justice Clarence Thomas has decried that the Supreme Court's neglect of the Second Amendment over the last decade has allowed lower courts to treat the right to keep and bear arms as a second-class right. The panel's decision that tens of thousands of people hindered in their efforts to buy ammunition is outweighed by some 700 attempted-illegal purchasers would not demonstrate any kind of tailored fit to the law if it were applied to say…voting rights.

Ninth Circuit Panel Dissent

In a nine-page dissent, three times the length of the majority decision, Judge Daniel Collins, a Trump appointee and former law clerk to Supreme Court Justice Antonin Scalia, outlines why California is unlikely to succeed on the case on its merits.

The district court found that, through January 2020, there were some 754 instances in which a prohibited person was prevented from purchasing ammunition through California’s ammunition background check system, and approximately 101,047 instances in which “residents who are not prohibited persons . . . failed a background check.” Appellant argues that the district court apparently overlooked the possibility that many of these instances involved the same person failing on multiple occasions, and Appellant contends that when that factor is considered, the court’s number overstates the “number of unique individuals” involved by about 25%. (The evidence cited by Appellant on this point suggests that he thinks the number should instead be about 81,112 persons.) Appellant also emphasizes that many of these 81,000 or so persons were subsequently able to pass a different, more cumbersome form of background check and to purchase ammunition. But as the district court noted, “between 53.5% and 60% of residents who are rejected each month still ha[d] not been authorized to purchase ammunition” as of January 2020, and “the resolution process” for those who had succeeded was “hardly quick.” Taking these adjustments into account indicates that, through January 2020, approximately 750 prohibited purchasers had been stopped from buying ammunition but roughly 45,000 or so “residents who are not prohibited persons” had also been prevented from doing so.  And
beyond this disparity in impacts, the district court also noted the system’s apparent effect on the overall volume of ammunition transactions: although California had forecast that “approximately 13 million ammunition transactions” would occur in one year, the number of background checks conducted using the two primary methods was “only 635,856” over a seven-month period.

The purpose of the tailoring requirement is to ensure that the benefits of a regulation are not disproportionate to the burdens on constitutionally protected conduct. Without endorsing everything that the district court said in its voluminous opinion, I agree that the sort of stark imbalance between benefits and burdens here suggests poor tailoring. [Footnotes and internal citations omitted.]

It appears from the brevity of the majority opinion halting the district court's injunction and allowing background checks to continue, that Justices Silverman and Nguyen either a) didn't read Benitez's extensive ruling on the preliminary injunction, or b) believe that the Second Amendment can be effectively eviscerated by legislative or, in this case, popular referendums as long as you're still allowed to keep a gun in your home.

Ninth Circuit Next Steps

A formal hearing on the preliminary injunction is now awaiting assignment to a three-judge panel to hear actual arguments on whether Benitez abused his authority by issuing the preliminary injunction. The state's first formal brief is due June 12, after the state received a time extension to file from the same panel. The plaintiff's answering brief is due 28 days later, and an optional (but probably one that will be filed) reply brief is due 21 days after that. So it will likely be August before anything is actually done in this case.

There's also a strong possibility that the Ninth Circuit will put all Second Amendment-related cases on hold again if the Supreme Court decides to take one of the approximately one dozen cases it is currently considering.

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