SAN DIEGO — Less than 24 hours after a federal judge eviscerated California’s voter-approved gun-control measures for a second time by blocking enforcement of background checks on ammunition purchases, California Attorney General Xavier Becerra said Friday convicted criminals are already purchasing ammunition.
In an emergency motion to stay a 120-page order Thursday from U.S. District Judge Roger Benitez in the Southern District of California, Becerra said ammunition vendors were already selling ammunition without performing background checks on purchasers.
“The attorney general is informed and believes that ammunition vendors have already started selling ammunition without background checks, creating the near certainty that prohibited persons — convicted felons, violent misdemeanants, and others prohibited by law from possessing firearms and ammunition — will have easy access to ammunition,” Becerra wrote.
He asked Benitez to stay the order by 3 p.m. Friday. If the judge does not issue an order by Becerra’s deadline, the attorney general said he “will consider the motion as having been denied and will consider seeking a stay from the Ninth Circuit.”
Becerra noted the background check requirements on ammunition purchases have been in effect in California for nearly 10 months and have blocked 750 prohibited people from purchasing ammunition from licensed vendors.
Restrictions on online ammunition purchases and direct shipping by out-of-state vendors had been in effect for over two years prior to Benitez’s preliminary injunction Thursday, Becerra wrote.
In a 120-page order from the Southern District of California, U.S. District Judge Roger Benitez ticked off the numerous reasons he found Proposition 63, which was passed by 63% of California voters in 2016, “misfires and the Second Amendment rights of California citizens have been gravely injured” by a provision of the law requiring background checks on all ammunition purchases in the Golden State.
The ammunition background check provision went into effect last summer, with California Attorney General Xavier Becerra touting its effectiveness the first month, by blocking ammunition sales to more than 100 convicted felons and people prohibited from legally owning guns.
Proposition 63 also blocks online ammunition purchases or ammunition sales from out-of-state that don’t go through a state-licensed vendor who performs a background check.
In his opposition response to the preliminary injunction request last year, Becerra noted city-enacted ammunition background check laws in Los Angeles and Sacramento had helped prosecutors file felony charges against people with criminal histories who couldn’t legally own firearms.
“Prop. 63’s Ammunition Eligibility Check Laws are the kind of presumptively lawful regulatory measures that the Supreme Court has said do not implicate the Second Amendment,” Becerra wrote.
Yet, that wasn’t evidence enough for Benitez, who found the law is “constitutionally defective” because “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,” Benitez wrote.
He also noted at the outset of his order state ammunition regulations are so onerous they “deter an untold number of law-abiding California citizen-residents from undergoing the required background checks,” and in the seven months since the law was implemented, it wrongfully rejected 16.4% of people from obtaining ammunition when they are not prohibited from doing so.
California Rifle & Pistol Association President Chuck Michel is the lead attorney representing the plaintiffs — including Olympic medalist skeet shooter Kim Rhode — in the case. He called the injunction “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,” Michel said in a statement.
“The court found that the flimsy reasons offered by the government to justify these constitutional infringements were woefully inadequate,” he added.
Benitez’s injunction Thursday is not the first time the George W. Bush appointee has shot holes through Proposition 63.
He previously found the law’s ban on high-capacity gun magazines, which hold more than 10 rounds of ammunition and are commonly used in mass shootings, did not pass constitutional muster.
Earlier this month, the Ninth Circuit heard arguments from the state why Benitez’s 2019 order granting summary judgment in favor of the California Pistol and Rifle Association didn’t hold up and undermined the state’s public safety interest in preventing mass casualties during shootings when the firearms are used.
U.S. Circuit Judge Consuelo Callahan — also a George W. Bush appointee —echoed Benitez’s concerns women without access to more than 10 rounds of ammunition would be raped and killed during home invasions.
In his order Thursday, Benitez found California’s extension of gun background checks to also apply to ammunition purchases through a face-to-face transaction by a state-licensed vendor created a “choose-your-door scenario” where purchasers were required to submit to and pay for one of four different types of background checks.
But before the 640,000 state residents could apply for background checks to purchase ammunition between July 1, 2019, and Jan. 31, they were required to prove citizenship by producing a California REAL ID, passport or birth certificate.
And over 101,000 or 16% were wrongfully rejected by the standard background check from purchasing ammunition and weren’t informed of the reason why, according to the order.
Purchasers who fail a standard background check are directed to take a 15-digit code and plug it into a government website to find out why.
The most common reasons purchasers were rejected by the standard background check was for an address mismatch or for not having a record of legally owning a firearm, Benitez noted.
“We know that a very large number of law-abiding citizens holding Second Amendment rights have been heavily burdened in order to screen out a very small number of prohibited persons attempting to buy ammunition through legal means,” Benitez wrote.
He theorized Proposition 63 could also have the unintended consequence of pushing law-abiding citizens to stockpile ammunition to avoid frequently going through the onerous background checks.
Criminals may also “seek out illicit suppliers” to avoid being found out during a background check, Benitez wrote.
— By Bianco Bruno, CNS