U.S. District Judge Roger T. Benitez has issued a preliminary injunction overturning California's ammunition sales laws. Those rules required all ammo sales to be conducted face-to-face with a licensed dealer, and they also forced all ammo buyers to undergo computerized background check through the California Department of Justice.

The state has already appealed the ruling to the 9th Circuit Court of Appeals, and the Court has already placed a stay on actually enforcing the decision.*

Benitez's decision in the case of Rhode v. Becerra,** which launched last summer with the backing of the California Rifle and Pistol Association, breaks at times into the sort of strong language one might ordinarily associate with a pro-Second-Amendment op-ed. "The casualties have been counted," he writes. "California's new ammunition background check law misfires and the Second Amendment rights of California citizens have been gravely injured" by the state's "onerous and convoluted new laws requiring ammunition purchase background checks and implementing ammunition anti-importation laws."

California's ammo laws are constitutionally defective, the judge argues:

First, criminals, tyrants, and terrorists don't do background checks. The background check experiment defies common sense while unduly and severely burdening the Second Amendment rights of every responsible, gun-owning citizen desiring to lawfully buy ammunition. Second, the implementing regulations systematically prohibit or deter an untold number of law-abiding California citizen-residents from undergoing the required background checks. Third, in the seven months since implementation, the standard background check rejected citizen-residents who are not prohibited persons approximately 16.4% of the time. Fourth, the ammunition anti-importation laws directly violate the federal dormant Commerce Clause.

Because the law makes it illegal for a California citizen to buy ammunition directly from out-of-state dealers, Benitez thinks it also runs afoul of the Constitution's Commerce Clause. And he is disturbed that the standard to prove oneself a citizen—step one of the background check process for legally buying ammunition—requires a federal "REAL ID"–compliant drivers license not yet enforced on all Californians, which is a more onerous hurdle than even buying a gun legally right now. (Without one, the prospective ammo buyer must also produce either a passport or a certified birth certificate. Only around 7 million of California's approximately 28 million adults have a REAL I.D.)

He saltily adds that law's title—the Safety for All Act—is "a misnomer,"

The injunction analyzes how the ammo background check system has worked so far. The judge finds that 616,257 people underwent a "standard" background check, and that of these

there were 188 would-be purchasers identified as "prohibited persons" (felons, fugitives, violent misdemeanants, etc.) and denied authorization to purchase ammunition….These are the people the new laws are designed to stop. Unfortunately, the Standard background check also rejected 101,047 other law-abiding citizen residents that the laws were not designed to stop. Later analysis reveals the rejections were either because the State has no record of gun ownership or because of identifier mismatches. To put this in perspective, 16% of those who established their citizenship were rejected and prevented from lawfully exercising their Constitutional right.

The only guidance a rejected would-be buyer gets, Benitez complains, is

a 15-digit number and a government website address for the California Firearms Application Reporting System (CFARS). The rejected citizen must then go to that website to discover the reason for rejection. Of course, this requires the person have access to a computer and the internet. The State says that the most common reason a person is rejected is a mis-match of addresses. Address mis-matches caused about 38% of the rejections. The second most common reason for a rejection accounting for about 26% of all rejections is that the purchaser did not have an AFS [Automated Firearms System] record. The AFS database is a record of firearm transfers, but it is limited to shotguns and rifles purchased since 2014 and handguns purchased mostly since 1990. Thus, a person may lawfully own a firearm and have no AFS entry.

Benitez notes that the number of people officially denied under the system doesn't count those who, lacking REAL-ID or its alternatives, don't even reach the step of getting checked. "How many gave up? If it is any indication, early on at two California stores, approximately one-half of the potential ammunition customers were turned away without a background check."

Tangled Standards of Review

Benitez digs deep into an issue that Second Amendment forces hope the Supreme Court will eventually tackle nationally: What is the proper judicial standard of review for Second Amendment cases?

The state of California thinks the proper standard is intermediate scrutiny, in which the "government's interest must be important and the fit of the law to the objective must be reasonable." The government's lawyers support this with what Benitez calls "a complex analysis that only a law professor can appreciate." The judge adds that "these complicated legal tests usually result in upholding Second Amendment restrictions upon something akin to a rational basis test." (In a rational basis test, the law merely must be seen to have some rational relation to some state goal, and that is more properly applied to laws where no fundamental constitutional right is at issue, which is not the case with the Second Amendment, Benitez believes.)

Benitez doesn't think that's what the Supreme Court wanted when it ruled, in the 2008 Heller decision, that the Second Amendment protected an individual right to possess commonly used weapons for self-defense in the home. "It is obvious," he writes, "that the California background check laws that de facto completely block some law-abiding responsible citizens from buying common ammunition are unconstitutional." He argues that the ammo law "is not one of the presumptively lawful regulatory measures identified in Heller," and further that "an ammunition background check has no historical pedigree."

If the ammo rule burdens the Second Amendment, the judge argues, another analytical hurdle must be jumped and "the correct level of scrutiny must be selected. For that selection [another] two-step evaluation is required. The first step measures how close the statute hits at the core of the Second Amendment right. The second step measures how severe the statute burdens the Second Amendment right." By keeping lawful buyers from purchasing ammunition, the rules "directly burden the Second Amendment right directly to its core, which is the right to defend one's self, family, and home." This makes them "unconstitutional under any level of scrutiny."

Still, Benitez dabbles with existing 9th Circuit precedent, which imposes on the Second Amendment a "sliding scale of scrutiny." Since some people initially denied the right to purchase ammo do indeed eventually succeed after much effort on their part, California believes the burden is not strict enough to require anything other than "intermediate scrutiny" from courts.

Benitez responds: "The government has certainly not demonstrated that the blanket background check system will cure any disease and alleviate harm in a direct and material way without unnecessarily burdening the rights of citizens. So far, the benefit of the background check laws is that a very small number of prohibited persons have been denied authorization to buy ammunition at a licensed ammunition vendor. On the other hand, the burden is that 101,047 law-abiding citizens (plus an untold additional number who may have been discouraged by the clumsiness of the system) were unable to exercise their Second Amendment right to acquire ammunition for their firearms."

Benitez spends many pages showing the thinness of the data California used to defend the idea that the ammo laws would reduce firearms violence. He notes that in 1968 the federal government imposed a requirement for recordkeeping on ammo buys, and that nearly two decades later "the Treasury Department and the Bureau of Alcohol, Tobacco and Firearms informed Congress that the ammunition recordkeeping requirement was not useful for law enforcement. Congress then removed the ammunition regulations in 1986. The result of that national experiment calls into question the effectiveness of new state ammunition regulations."

The Appeal is Underway

With an appeal already launched in the 9th Circuit—which in the past has not exactly been prone to upholding a vigorous version of the Second Amendment—how is this decision likely to hold up?

That past performance may not be a guarantee of future results. During the Trump presidency, the 9th Circuit has undergone an ideological shift that might make its panels more likely to uphold the Second Amendment. Chuck Michel, a lawyer who serves as president of the California Rifle and Pistol Association, points to the appeals panel that earlier this month considered a previous pro–Second Amendment decision from Judge Benitez. This was in the case of Duncan v. Becerra, in which he enjoined state laws restricting weapons' magazine size. The panel's questioning, Michel reports, seemed at least somewhat sympathetic to the gun-rights cause.

But he grants that it's always risky to predict what a court panel will or won't do until a decision has been issued. We'll have to wait to see how it rules on Duncan—and then whether that's a bellwether for Rhode v. Becerra.

Corrections:

*The Appeals Court having already stayed the order pending final resolution was not noted in original posting of article.

**The case name was misspelled in original posting of article.