California’s Mandating Background Checks for Ammunition Purchases Held Unconstitutional

The state of California has some of the most draconian, extensive, and Byzantine gun control laws in the Country. It is, therefore, not surprising that many recent Second Amendment cases address California’s gun control efforts. The latest example is Rhode v. Bonta, in which a federal district court struck down a California law that targeted ammunition sales by, among other things, requiring a background check of any individual who wants to purchase ammunition in California.

Under federal law, a licensed firearm dealer (an “FFL”) must conduct a background check on any individual who wants to purchase a firearm from the dealer. There is a cost associated with the background check and it can sometimes take days for the FFL to get the results of the background check. Federal law prohibits an FFL from completing the sale of a firearm until receiving clearance from the federal background check system. While a background check is required for sales of firearms, the federal government has never required a background check for ammunition purchases. Other than California, it does not appear that any other state has required a background check for the purchase of ammunition.

Sound reasons exist for not requiring background checks for ammunition sales. First, the number of ammunition purchases is larger than the number of firearm purchases by many orders of magnitude. Creating a background check requirement for ammunition sales would swamp any background check system. Second, the typical ammunition transaction is significantly smaller than the purchase of a firearm. A firearm can cost anywhere from a few hundred dollars to several thousand dollars, while a box of handgun ammunition can cost twenty-five dollars. Even a small fee on ammunition can result in a significant percentage point increase in the cost of ammunition. Third, the costs and delays associated with the background check system would impose a significant burden on individuals trying to purchase ammunition and the companies selling ammunition. Finally, it is hard to see how imposing such a burden on ammunition sales would have any impact on the criminal use of firearms. Ammunition is readily available in every other state and is easy to transport. The suggestion that running background checks on ammunition purchases is going to keep criminals from obtaining ammunition is baseless.

In 2019, California, nonetheless, went forward with a law that: (a) required a state background check on most ammunition sales, (b) made it unlawful for anyone in California to sell ammunition to a resident of another state, (c) made it unlawful for California residents to purchase ammunition from a company located outside of California, and (d) made it unlawful for California residents to purchase ammunition in one state and transport the ammunition into California for their own personal use. The cost of getting a “background check” under the new law appeared to range from one dollar to nineteen dollars. For many ammunition purchases, the background check would represent a significant increase in cost.

The district court in Rhode laid out facts showing how the background check requirement imposed burdens grossly disproportionate to any law enforcement benefit: “To sum up, approximately 635,000 residents were required to undergo background checks in the last half of 2019, the denials of which prompted the arrests of 15 individuals which led to six criminal convictions.” The tiny percentage of criminals caught by the new background check system given California’s crime rate shows the futility of the background check program.

Further, about 11% of the time, the state background check system would erroneously flag a purchaser as being prohibited from purchasing ammunition. The district court stated that this meant that on average 322 individuals were wrongly denied the ability to purchase ammunition every day in California. The error rate was, therefore, significantly higher than the rate at which it caught a criminal trying to purchase ammunition from a gun shop.

The disproportionate burden the ammunition background check system imposed on law abiding individuals prompted the court to essentially characterize it as “a scheme put to abusive ends.” The state background check system, either by incompetence or design, significantly interfered with the ability of law abiding California residents to purchase ammunition.

Under the Constitution, however, state governments are generally allowed to impose disproportionate burdens on various activities. In most cases, a state’s imposing a disproportionate burden on individuals engaging in a certain activity raises a political question that residents in the state need to address through the political process. This is not the case when the state action negatively impacts the exercise of a constitutional right.

The Second Amendment states that the “right to keep and bear Arms, shall not be infringed.” This raises two initial questions: (1) is ammunition protected by the Second Amendment, and (2) does California’s background check requirement “infringe” the right to “keep and bear arms.” The district court had little problem holding that ammunition is protected by the Second Amendment. In the Heller decision, the Supreme Court held that the primary goal of the Second Amendment was to protect the fundamental right of individuals to defend themselves. Ammunition is an essential part of an operational firearm, and is, therefore, essential to the fundamental right of individuals to defend themselves. Without a right to buy and possess ammunition, the Second Amendment right becomes meaningless.

The district court also had no problem finding that California’s background check system rose to the level of an “infringement” of the Second Amendment. The California law indirectly targeted firearms by imposing added costs, burdens, and delays on the purchase of ammunition. The district court did not set out a test to determine when a state law creates an “infringement,” nor did it have to develop such a test. While the California law did not directly target the purchasing and possession of firearms, it did directly target the ability of individuals to purchase a critical component of a functioning and effective firearm. This made the “infringement” analysis much simpler. After finding an “infringement,” the court conducted the historical tradition test, and found that there did not exist any historical tradition of requiring background checks for ammunition purchases. Indeed, the historical analysis showed the lack of any support for mandatory background checks whatsoever. Accordingly, the court held that California’s ammunition background check system was unconstitutional.

The lack of any historical tradition that could support a background check system shows the importance of the “infringement” issue in cases where the historical justification for a gun control law is being challenged. What constitutes an “infringement” is undergoing development in Second Amendment law. There are many general laws that do not directly target firearms that nonetheless impact the cost or ability to purchase a firearm. For example, a zoning law that only allows residential dwellings in a certain area would prohibit building a gun shop in that area. While this could impose some minimal burden on purchasing a firearm for some individuals, it is hard to think of this as an “infringement” of the Second Amendment. Compare this to the City of Chicago that imposed such stringent zoning requirements on where a gun shop or gun range could be opened that it was practically impossible to open a gun shop in the city. A federal appellate court held that Chicago’s zoning rules targeting gun shops did violate the Second Amendment because of the significant impact those zoning rules had on the ability of people living in Chicago to go to a gun shop or gun range.

What rises to the level of an infringement will depend, to some extent, on the intent behind the challenged law, what that law targets, and the laws impact on the possession and sale of “Arms.” Gun control laws that expressly target firearms make is significantly less difficult to show an “infringement.” But targeting firearm sales, possession or the carrying of firearms is not sufficient, by itself to show and “infringement.”

In many cases, the infringement issue is easy to resolve. At one extreme, a law that bans possessing a handgun is an obvious infringement of the Second Amendment. This does not end the Second Amendment analysis, but the burden would shift to the state or city that passed such a law to show a historical tradition supporting it. Zoning an area as residential that prevents the opening of a gun shop (and other businesses) in that area would almost certainly not constitute an infringement of the Second Amendment. The infringement issue will, however, come up in cases challenging licensing requirements, background check requirements, paperwork requirements when purchasing a firearm, to name just a few. In its Bruen decision, for example, the Supreme Court struck down a New York law that conditioned the right to carry a firearm on a showing of some type of special need. While the Supreme Court held that conditioning the issuance of a carry permit on a showing of special need was unconstitutional, the Court was careful to state that laws requiring a state-issued carry permit in order to carry a firearm were not necessarily unconstitutional. The Supreme Court pointed out that over 40 states had what are called “shall issue” laws that obligate the state to issue a carry permit, if the person seeking the permit was able to meet certain objective requirements such as a background check.

The Supreme Court pointed out, however, that “we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.” The Supreme Court’s statement is not based on a historical analysis, and serious doubts exist that such licensing laws could survive a historical tradition test. Instead, the Supreme Court focused on the burden that a state could impose on law-abiding citizens by abusing a licensing program. By focusing on the “burden” an abusive licensing program imposes on citizens, it appears that the Supreme Court was discussing the threshold requirement of showing some type of an “infringement” before the burden of showing a historical tradition would shift to the state or federal government.

This is a developing area of Second Amendment law. The Supreme Court has strongly indicated that the federal background check system for purchasing firearms is not, in theory, an infringement of the “right to keep and bear Arms.” The devil is in the details, however, and negligence or intentionally making a background check system licensing regime burdensome can rise to the level of an “infringement.” The decision in Rhode shows that background check laws are not immune from constitutional challenge.

In the heart of our nation’s ongoing dialogue about liberty and security, the Second Amendment stands as a testament to the foresight of our forebears, ensuring that the right of the people to keep and bear Arms shall not be infringed. Yet, we see instances where this fundamental right is challenged, leaving citizens to face legal battles and uncertainties. At The Law Offices of George M. Sanders, P.C., we understand the complexities surrounding Second Amendment rights and the profound importance of safeguarding these liberties against undue restrictions. Our extensive experience in litigation equip us to navigate the intricate legal landscape and defend your freedoms with unwavering dedication. If you or someone you know is facing challenges to your Second Amendment rights, do not stand alone. Reach out to us for a consultation.