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After a California law requiring in-person background checks for every purchase of ammunition was overturned on Jan. 30 by a federal court in the District of Southern California, bringing the state’s regulation of ammunition sales more in line with the rest of the country, another judge has stayed the injunction. That means that background checks for purchasing ammunition in California have been reinstated — at least for now.
The stay was granted on Feb. 5 according to an order filed in the U.S. Court of Appeals for the Ninth Circuit. Two judges granted the stay while a third judge, Consuelo M. Callahan, dissented. “I do not believe the appellant [California attorney general Rob Bonta] has met his burden of showing a likelihood of success on the merits or that irreparable injury will occur absent a stay,” she wrote.
In other words, Judge Callahan doesn’t buy the attorney general’s argument that lifting ammo background checks on ammunition purchases will result in gun violence. That’s likely rooted in the policy’s poor track record. In his Jan. 30 decision to overturn background checks for ammo in California, U.S. District Judge Roger Benitez called the background checks both unconstitutional — the basis for overturning the law — and ineffective. He pointed to high rejection rates (between 11 and 16 percent) for law-abiding ammo buyers, and compared these to just .03 percent of buyers who were rightly denied because they were on a prohibited list. His decision comes in response to a lawsuit, Rhode v. Becerra, that was filed against the state by online retailer Ammunition Depot, the California Rifle & Pistol Association, and California native Kim Rhode, a six-time Olympic medalist in double trap and skeet.
“While we are understandably disappointed by the stay, this is merely a pause, not the end of our journey,” Ammunition Depot CEO Dan Wolgin tells Outdoor Life in an emailed statement. “We remain steadfast in our commitment to defending the constitutional rights of all Americans and are prepared for the next phase of this pivotal legal battle in the Ninth Circuit Court of Appeals.”
The sweeping changes to California’s ammunition laws first took root in 2016, when voters approved Prop. 63, a ballot measure requiring gun owners to undergo background checks and buy a four-year permit (to the tune of $50) before they could purchase any ammo. In 2019, state legislators amended the measure so that gun owners would have to undergo a background check for each ammunition purchase they made. This law made California an outlier among the 50 states in terms of heavy restrictions placed on ammo buyers. And even though ammunition laws vary by state, Benitez made it clear in his Jan. 30 decision that these restrictions had “no historical pedigree” and violated California citizens’ right to bear arms.
“All agree that the ammunition necessary to use a gun is covered by the Second Amendment’s protection for keeping and bearing arms,” Benitez writes. He also cites a previous judge’s conclusion in Jackson v. City and County of San Francisco, which found that “without bullets, the right to bear arms would be meaningless.”
Most objections to the background checks are rooted in how impractical it’s been for law-abiding hunters and shooters to purchase ammunition in their state. Apart from brief windows like this most recent one in early February, California residents have not been able to order ammo online and have it shipped to their home, with one in six legal applicants getting rejected due to red-tape issues like the wrong address on their driver’s license. According to Ammunition Depot, state-wide ammunition sales plummeted by 95 percent since Prop. 63 went into effect.
“Prop 63 made e-commerce next to impossible in California,” Wolgin, the Ammunition Depot CEO, told Outdoor Life in an email. “Before the law went into effect on January 1, 2018, California made up 10 to 15 percent of our sales and we saw an approximately 99 percent decrease in revenue contribution from California. So the impact on e-commerce was even higher than the 95 percent decrease in overall sales within the state.”
While retailers were relieved, California hunters briefly celebrated the decision. A triple whammy of recent ammo shortages, California’s non-toxic ammunition requirements, and the ammo background checks (with the additional fees and quirks of California’s system) have made it particularly difficult for hunters to find the ammunition they need in a convenient and timely manner.
“I’m excited about this,” J.R. Young, a hunter who lives in Los Gatos Mountains and serves on the national board of Backcountry Hunters and Anglers, said last week when background checks were temporarily lifted. “Yesterday is a perfect example. My good friend has a rifle in .270 Weatherby which is a difficult cartridge [to come by]. Weatherby posted online that they had ammo in stock … and I sent a note over to him telling him ‘run, don’t walk, jump on this before they sell out.’ So he did, and he ended up having to pay $10 per box to have a local dealer run the background check for him.”
Holly Heyser, a central California duck hunter and former communications director for California Waterfowl, says she can understand the principle behind the ammo background checks. The execution, however, has been problematic, as she’s previously argued.
“The law says that the address on your driver’s license has to match the address in their system, and ‘in the system’ is the last time you purchased a gun,” says Heyser. “I am a homeowner, I’ve lived in my home since 2004, I don’t move a lot, and it’s not a problem for me. But a young person who’s in college, or someone who has just relocated to a new city? They have to do an address change to get their address corrected in the system. Typically that has taken people so long that it is easier just to buy a gun to get in the system with your new address. I have talked to people who have been told by the state Department of Justice, ‘just go buy a new gun, it will be faster.’ So that’s a real problem.”
Heyser was working at CW when Prop. 63 went into effect; the law was so convoluted and the background checks so glitchy that she started a webpage to help hunters sift through the requirements just to buy a box of duck loads. While Heyser has never personally had any issues with the background checks (thanks in part to a stable address), she mentors new hunters who absolutely struggle with the process.
“[Another] huge problem with the ammo background check law is for new hunters who haven’t bought a gun yet,” says Heyser. “It’s really common — and actually smart — for a new hunter to hold off on buying a gun until they know a little bit more about what kind of hunting they want to do … So if you haven’t bought [a gun] you have to pay for a very expensive background check. [It’s] a one-time check and it can take three days or more to get an answer back. So you’re going on a hunt, and that’s what you have to go through to actually get a box of shells? It’s hard enough when you’re starting hunting just figuring out all the things you need to do — like making sure your hunting license is [correct] and figuring out how to shoot a gun — to have this incredible extra layer of complexity for simply getting the ammo.”
A further quirk of California’s ammunition purchasing laws is how it applies to non-residents, who are legally allowed to fly or drive ammunition across state lines but unable to purchase it in the state. While it’s not immediately clear if the Jan. 30 ruling affected non-resident ammo purchases, outfitters in particular were hopeful it would apply. Charlie Barberini runs Golden State Guide Service on San Francisco Bay, where his clients travel to shoot scoters and other ducks they can’t target in their home states.
“To be honest [the ammo sale restrictions have] been a royal pain because I take a lot of people coming in from out of state out for multiple days,” Barberini says. “On the airlines they’re only allowed to bring two boxes [of shells] which makes it tough, especially when we’re guiding sea ducks and divers. We shoot a lot of ammo, there’s cripples and misses. [Ammo sale restrictions] have been a real pain in the butt.”
As supporters of Prop. 63 pointed out, an appeal to Benitez’ decision seemed imminent. This likelihood was confirmed with the Feb. 5 stay, creating a rerun of what happened in 2020 when Benitez issued a written decision to block the implementation of Prop. 63 — only to have his decision appealed by the state. Attorney general Bonta asked Benitez on Thursday to delay his ruling so he could have time to appeal the decision. Benitez denied his request.
Last week Ammunition Depot took advantage of the brief overturn of Prop. 63 to serve California customers. Its homepage featured a banner that read: “Welcome back California! Now shipping ammo directly to your door.” After the scant week of background-check-free ammo sales, the retailer has replaced that banner with another message. This one reads, “The California decision has been stayed. While we’re disappointed that Californian’s rights have been put on hold, we’re going to continue to fight the good fight for your constitutional rights!”
This story, originally published on Jan. 31, 2024, has been updated to reflect changes to the ruling.