California can resume background check for ammunition purchases under 9th Circuit order

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Bob Egelko | Contributor

A federal appeals court says California can resume requiring background checks for purchasers of ammunition while the state appeals a federal judge’s ruling that the law violates the right to keep and bear arms. A three-judge panel of the 9th U.S. Circuit Court of Appeals — all appointed by Republican presidents — voted 2-1 Monday to grant state Attorney General Rob Bonta’s request for a stay of the Jan. 30 ruling by U.S. District Judge Roger Benitez of San Diego halting enforcement of the 2019 law.

The law requires firearms dealers to conduct the same background checks for ammunition buyers that they do for purchasers of firearms, to see whether they have criminal or mental health records that would make the purchases illegal.

Benitez said the law “treats all citizens as if they do not enjoy a right to buy ammunition. It forces Americans to entreat and supplicate the state for permission.” In an emergency motion with the appeals court a day after the judge’s ruling, Bonta said ammunition sellers had already started to advertise that their products were available online without background checks. “California’s life-saving ammunition laws will remain in effect as we continue to defend them in court,” the attorney general said in a statement Tuesday. “With the proliferation of self-assembled, fully functional, and unserialized ‘ghost guns,’ these ammunition laws serve as a backstop to the use of firearms by prohibited persons.”

The appeals court’s brief order was issued by Judges Richard Clifton, appointed by President George H.W. Bush, and Holly Thomas, an appointee of President Donald Trump. They did not explain their reasoning. In dissent, Judge Consuelo Callahan, a Bush appointee, said she did not believe Bonta was likely to win his appeal of Benitez’s order, or that allowing the order to remain in effect would cause “irreparable injury.” Chuck Michel, president and general counsel of the California Rifle & Pistol Association, which challenged the law in court, said he would seek an early hearing on the merits of the case from a different three-judge panel, which the court will not identify until shortly before the hearing.

Overturning the background-check requirement would “restore the people’s right to buy the ammunition they need for sport or to defend their families,” Michel said. Benitez was appointed by Bush in 2004. His first significant gun ruling was in 2017, when he blocked enforcement of the state’s ban on possessing guns with high-capacity magazines, a law that was reinstated by the 9th Circuit but is being reconsidered under standards set by the Supreme Court in 2022 when it limited the government’s authority to regulate firearms.

Since 2017, the National Rifle Association and its allies have filed challenges to California gun laws in the San Diego federal court, and Benitez has agreed to hear them as cases “related” to his 2017 ruling. In the 2022 Supreme Court ruling, which overturned a New York law requiring individuals to show a need for self-defense in order to carry concealed weapons in public, Justice Clarence Thomas said restrictions on firearms were unconstitutional unless they were “consistent with this nation’s historical tradition of firearms regulation,” from colonial times to the post-Civil War years.

Applying that standard, Benitez said in his Jan. 30 decision that between 1791 and 1868, “citizens were free in every state to buy ammunition at any time and without qualification.”

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