U.S.A. –-(Ammoland.com)- Buried halfway through the 120-page ruling by U.S. District Judge Roger Benitez that California’s background check requirement for ammunition purchases violates the Second Amendment are five words that cut to the core of gun control laws across the country.
“Criminals don’t do background checks.”
The remark is on Page 69 of the Benitez ruling, which declares the California ammunition requirement “constitutionally defective,” and it is perhaps a fitting spot. It is at the middle—the core—of a ruling that will likely be appealed to the Ninth Circuit Court in San Francisco, but in the meantime Golden State gun owners are cheering, albeit cautiously.
The case is known as Rhode v. Becerra, named for the chief plaintiff, Olympic Gold Medalist and California resident Kim Rhode. The case was brought in response to Proposition 63, passed by California voters in 2016. The case was supported by the National Rifle Association and included several plaintiffs, both private citizens and businesses.
“As the court said, ‘The right to keep and bear arms is the insurance policy behind the right to life…a shield from the tyranny of the majority.’ California wasn’t just obstructing the people’s fundamental right to defend their families and lives—it was encouraging unlawful hostility toward an individual, Constitutional right,” said Jason Ouimet, executive director, National Rifle Association Institute for Legislative Action in a prepared statement. “The NRA funded this case for the same reason the court struck down the laws: enough was enough.”
The Associated Press quoted Hannah Shearer, litigation director for the Giffords Law Center to Prevent Gun Violence, calling the ruling “a dangerous step in the wrong direction.”
But attorney Chuck Michel, president of the California Rifle and Pistol Association, issued a statement (quoted by NBC News) with a polar opposite perspective: “This is 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.”
Indeed, according to the Benitez ruling, “the burden is that 101,047 law-abiding citizens (plus an untold additional number who may have been discouraged by the clumsiness of the system) were unable to exercise their Second Amendment right to acquire ammunition for their firearms.” That notation is found on Page 66 of the ruling.
Most reports are focusing on the judge’s opening remark: “The experiment has been tried. The casualties have been counted. California’s new ammunition background check law misfires and the Second Amendment rights of California citizens have been gravely injured.”
But there is much more in Judge Benitez’ lengthy decision, and one must read carefully to find it all.
Benitez, the senior judge of the U.S. District Court for the Southern District of California in San Diego, is a George W. Bush appointee, taking office in June 2004. He ascended to the senior position on Dec. 31, 2017.
He is the same judge who ruled in a case that was recently argued before the Ninth Circuit declaring California’s ban on so-called “high capacity magazines” also violates the Second Amendment. That case is known as Duncan v. Becerra.
In Thursday’s ruling, Judge Benitez—who was born in Havana, Cuba 69 years ago—wrote on Page 52, “The majority of citizens who use common ammunition do so for lawful purposes, including self-defense. Under Heller and McDonald, that is all that is needed for citizens to have a right under the Second Amendment to acquire and keep common ammunition. Using the simple Heller test, it is obvious that the California background check laws that de facto completely block some law-abiding responsible citizens from buying common ammunition are unconstitutional. Under the simple Heller test, judicial review could end right here.” (Emphasis added.)
Three pages later, Judge Benitez says the California statutes “directly burden the Second Amendment right directly to its core, which is the right to defend one’s self, family, and home.”
Reading further, to Pages 65-66, the judge rakes California’s case with this observation:
“At this point, however, the government has done little more than simply posited the existence of the disease sought to be cured. And the cure, making it difficult for law-abiding citizens to acquire ammunition, is far worse than the disease. The government has certainly not demonstrated that the blanket background check system will cure any disease and alleviate harm in a direct and material way without unnecessarily burdening the rights of citizens.”
He also criticizes the “clumsiness” of California’s background check system that initially denied purchases to 770 people, of which some were later found to be “not prohibited persons at all.” Contrasting that number against the 101,047 mentioned earlier is one of the keys of the judge’s opinion.
Judge Benitez probably explains the problem best in a passage on Page 67, where he observes:
“This state experiment is a one-size-fits-all, one-of-a-kind approach with no legislative record. The State justifies the experiment upon little more than conjecture springing from three old studies: (1) an old study of Los Angeles recordkeeping law; (2) an old study of Sacramento recordkeeping law; and (3) the straw purchaser experience of the State of New Jersey…California’s background check for ammunition purchases is the first state experiment in the country. But it is not the first experiment. The federal Gun Control Act of 1968 required ammunition be sold by federally licensed firearm dealers who would maintain records of ammunition sales. The Gun Control Act also prohibited, like the new California anti-importation law, interstate mail-order ammunition sales. After 18 years of that experiment, Congress repealed the prohibition on mail-order sales and the ammunition purchase recordkeeping requirement in the Firearm Owners Protection Act of 1986. In support of the changes, the federal Bureau of Alcohol Tobacco and Firearms and the Treasury Department said the ammunition recordkeeping had no substantial law enforcement value.”
Twenty pages later (Pages 88-89), as if to underscore what he had written, Judge Benitez refers to a more recent study in 2018 that was highlighted by the plaintiffs in their case.
“Observing that ‘we know little about the effectiveness of CBC [comprehensive background check] policies,’ the authors (of this newer study) recently set out to determine the impact of California’s background check system for purchasing firearms implemented in 1991. The study identified the rate of homicides and suicides from firearms during the ten years preceding the background check law and the ten years following. The conclusion is that the implementation of California’s firearm background check law had little or no effect on firearm-related homicide rates. ‘[T]he net difference during the 10 years post intervention was practically 0.’”
Four pages later, Judge Benitez notes, “To be clear, at this point in the case, the evidence does not fairly support the notion of Proposition 63 that background check and anti-importation provisions for ammunition acquisition will make the public safer.”
He hammers one more nail into the coffin on Page 95, and it might stand as a lesson to state governments everywhere, if his ruling is upheld.
“Government is not free to impose its own pure policy choices on American citizens where Constitutional rights are concerned. As Heller explains, the Second Amendment takes certain policy choices and removes them beyond the realm of state action.”
About Dave Workman