Ammo background check thrown out by judge, then reinstated



SAN DIEGO – A federal District Court judge ruled California’s onerous ammunition background check law and the state’s ban on mail-order individual purchases of ammunition from other states justified a preliminary injunction on Thursday, writing, “the Second Amendment is not a ‘loophole’ that needs to be closed.” Just a day later, the 9th Circuit Court of Appeals granted California Attorney General Anthony Becerra’s emergency motion for a stay of the injunction, and the ammo check law and mail-order ban were back in effect.

Roger Benitez, who is a senior judge with the U.S. District Court’s Southern District in San Diego, issued a sharply worked rebuke in rejecting the laws on Constitutional grounds in his 120-page decision, at one point saying, “Criminals, tyrants and terrorists don’t do background checks.”

Both laws were part of a ballot initiatives passed by voters in 2016 and a similar law passed by the legislature. The ammunition background check law went into effect July 1 last year, while the ban on out-of-state purchases and mail-order ammunition sales began a year earlier.


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“A ballot proposition is precisely what the Bill of Rights was intended to protect us from – a majority trampling upon important individual rights,” wrote Benitez.

“The experiment has been tried. The casualties have been counted. California’s new ammunition background check law misfires and the Second Amendment rights of California citizens have been gravely injured,” wrote Benitez. He went on to call the laws “onerous and convoluted” in setting them aside because they violated not just the Second Amendment, but also the Commerce Clause of the United States Constitution.

Almost immediately on announcement of the decision, ammunition retailers statewide stopped requiring identification and background checks for ammunition purchases, and mail-order companies across the country announced they would again ship ammunition to California customers.

The state asked the judge to stay his ruling on Friday while an appeal could be heard, which would have reinstated the restrictions, but Benitez denied the request. His three-page decision to deny the request said, in part:

“Buying ammunition is something that prohibited persons have managed to accomplish for 170 years and these new laws show little likelihood of success of preventing prohibited persons from unlawfully possessing future acquisitions. This Court’s focus is on the 101,047-plus law-abiding, responsible citizens who have been completely blocked by the operation of these laws. Without an injunction, these law-abiding individuals have no legal way to acquire the ammunition which they enjoy the constitutional right of possession,” wrote Benitez.

That lasted all of one day, before the Ninth District Court of Appeals stepped late Friday night and granted the state request for a provisional stay on Benitez’ ruling until the case could be heard before that court. So California residents still must face the ammunition restrictions, but gun rights advocates believe Benitez’ ruling will eventually be upheld, if not by the appellate court, then by the Supreme Court.

The lead plantiff in this case was Olympic shotgun shooter Kim Rhode of El Monte (Rhode v. Bacerra), along with the California Rifle and Pistol Association. Rhode, who remains one of just two Olympians to win medals in six consecutive Olympics on five different continents, said the regulations “essentially prevent me from being able to stay qualified and not only hurt my skill, but jeopardize the United States’ representation at the Olympic Games.”

Benitez, who was born in Havana, Cuba, was appointed to the district court by George W. Bush in 2003, and he made headlines last year striking down the state’s ban on high-capacity ammunition magazines. That ruling ignited a week-long buying spree before a stay halted sales while the state appealed the ruling. It is still being litigated before the Ninth Circuit Court of Appeals, which earlier this month seemed to be leaning toward upholding Benitez’ decision.

In the ammunition case, Benitez wrote that the decision hinged on four primary points:

“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 percent of the time.

“Fourth, the ammunition anti-importation laws directly violate the federal dormant Commerce Clause” through their restriction on intrastate sales.

The bulk of the 110-page decision deals with the minutia of the law, discussing how it failed to prevent illegal ammunition purchases while unduly burdened or completely preventing legal gun owners from purchasing ammunition.

Benitez’ decision is full of quotable lines talking about protecting the rights of individuals against a majority. He also gets in a few humorous jabs. At one point he says that the Constitution and – by association – gun owners, get less respect than Henny Youngman in California. He discusses how the ammunition background check law is prejudicial against undocumented citizens of this state, a state which calls itself a sanctuary state. (Only citizens are allowed to buy ammunition under the law.) He also makes the decision current by pointing out that in this time of COVID-19 stay-at-home orders, closures of schools, businesses, and government offices, and reduced law enforcement and prosecution, “maintaining Second Amendment rights are especially important in times like these.”

“This case is about what should be a muscular constitutional right and whether a state can impinge on that right based upon a popular vote and unconvincing research. It should be an easy question and answer. Government is not free to impose its own pure policy choices on American citizens where Constitutional rights are concerned,” wrote Benitez.

Ultimately, the court sided with the Constitution and the Second Amendment and not mob rule.

“The Court is mindful that a majority of California voters approved Proposition 63 and that government has a legitimate interest in protecting the public from gun violence, it is equally mindful that the Constitution remains a shield from the tyranny of the majority. As Senator Kennedy said, ‘…the judiciary is – and is often the only – protector of individual rights that are at the heart of our democracy.’

“Law-abiding citizens are imbued with the unalienable right to keep and bear firearms along with the ammunition to make their firearms work. That a majority today may wish it were otherwise, does not change the Constitutional right. It never has.”

While gun owners still must abide by the restriction until the case is heard in appeal, Chuck Michel, an attorney whose firm handled the case and who also happens to be the president of California Rifle and Pistol Association, said, “This is a devastating blow to the anti-gun-owner advocates who falsely pushed Prop 63 in the name of safety. In truth, red tape and the state’s disastrous database errors made it impossible for hundreds of thousands of law-abiding Californians to purchase ammunition for sport or self-defense.”