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CA: Ammunition Infringements Back in Force... for Now

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Californians have been free to purchase ammunition, much like the rest of the United States, from January 31, 2024 to February 5, 2024. On February 5, 2024, a three judge panel of the Ninth Circuit, in a split decision, granted a motion to stay the decision of the District Court by Judge Benitez. Judge Benitez had found the ammunition law to be unconstitutional for a second time on January 31.

In 2016, voters in California approved a ballot measure known as Proposition 63. The proposition created a system where gun owners would apply for an ammunition permit, which would cost $50 and be good for four years.  Ammunition vendors would be required to check a California list of valid permits before they could approve a purchase.  This system never went into effect.

Before the election day when Proposition 63 was voted on, the California legislature enacted Senate Bill 1235. The bill changed and eliminated Proposition 63, and put Bill 1235 in place. Bill 1235 required a background check every time ammunition was purchased, along with numerous other requirements, fees, and prohibitions. Bill 1235 was to go into effect on January 1, 2018. The bill was challenged in the courts as unconstitutional, on April 26, 2018.  On April 23, 2020, Judge Benitez issued an order granting a preliminary injunction, to stop enforcement of the law. On April 24, 2020, an three judge panel granted a stay on the implementation of the preliminary injunction.

On June 24, 2022, the case was sent back to Judge Benitez, to take into consideration the impact of the Bruen decision at the Supreme Court. On January 30, 2024 Judge Benitez issued an order granting a permanent injunction to stop the enforcement of the unconstitutional ammunition law infringements. From the order:


The ammunition background checks laws have no historical pedigree and operate in such a way that they violate the Second Amendment right of citizens to keep and bear arms. The anti-importation components violate the dormant Commerce Clause and to the extent applicable to individuals travelling into California are preempted by 18 U.S.C. § 926A. Perhaps the simpler, 4-year and $50 ammunition purchase permit approved by the voters in Proposition 63, would have fared better.

Accordingly, the Court permanently enjoins the State of California from enforcing the ammunition sales background check provisions found in California Penal Code §§ 30352 and 30370(a) through (e), and the ammunition anti-importation provisions found in §§ 30312(a) and (b) and 30314(a). Criminal enforcement of California Penal Code §§ 30312(d), 30314(c), and 30365(a) by the Attorney General and all other law enforcement defendants is permanently enjoined.

The State of California (defendants) asked for a stay on the permanent injunction. Judge Benitez refused to grant a stay on January 31, 2024. The defendants appealed.

On February 5, 2024, an administrative three judge panel granted a stay on the permanent injunction. The panel was split, two to one. From the Ninth Circuit, granting the stay:

Order by Judges CLIFTON and H.A. THOMAS; Dissent by Judge CALLAHAN.

The motion to stay the district court’s January 30, 2024 permanent injunction and judgment (Docket Entry No. 4) is granted. See Nken v. Holder, 556 U.S. 418, 434 (2009) (defining standard for stay pending appeal). The existing briefing schedule remains in effect.

CALLAHAN, Circuit Judge, dissenting:

I would deny the motion for a stay pending appeal. I do not believe appellant has met his burden of showing a likelihood of success on the merits or that irreparable injury will occur absent a stay.

Californians have had a five day period where they could purchase ammunition in ways similar to most of the residents of the United States. This case is far from over. The merits three judge panel of the Ninth Circuit may be appealed to. They could reverse the stay of the permanent injunction, returning California ammunition law to what it was before Bill 1235 was put into effect.

©2024 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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