Background check challenge might mark significant 9th Circuit shift

A challenge to a California law requiring background checks to purchase ammunition will not make it past the 9th Circuit in time to be considered by the U.S. Supreme Court today as a possible landmark case to reaffirm two of the high court's previous Second Amendment rulings.

But the outcome for the ruling from the Southern District of California could be an indication of a change in the outlook of the 9th U.S. Circuit Court of Appeals, once hailed as a bastion of liberal legal interpretation, an attorney representing plaintiffs in the case said.

"I wouldn't say confident, I'd say hopeful," said C.D. "Chuck" Michel of Michel & Associates PC of the circuit potentially vacating the stay a two-judge panel issued in the case two weeks ago. "The reasons we can be more hopeful than we might have been in the past is because the composition of the 9th Circuit has changed and there are more judges who are more inclined to hold the government to a true burden rather than be as differential to the government as the 9th Circuit majority has sort of been in the past."

Oral arguments by the circuit in the 2018 case of Duncan v. Becerra, 366 F. Supp. 3d 111 (S.D. Cal. 2019), which held that a voter-approved ban on high-capacity gun magazines was unconstitutional, indicate more members of the court are "skeptical of the government's justification" of some laws affecting the Second Amendment, he said.

On April 24, the circuit issued an emergency stay to temporarily reinstate the 2016 voter-approved ballot initiative requiring background checks for ammunition purchases one day after Senior U.S. District Judge Roger T. Benitez ruled it unconstitutional in Kim Rhode v. Xavier Becerra, (S.D. Cal. 3:18-cv-00902-BEN-JLB).

"California's new ammunition background check law misfires and the Second Amendment rights of California citizens have been gravely injured," Benitez ruled. "Law-abiding citizens are imbued with the unalienable right to keep and bear firearms along with the ammunition to make their firearms work."

The state filed an emergency motion for a stay and circuit Judges Mary H. Murguia and Mark J. Bennett issued a one page order granting it pending further orders.

Attorney General Xavier Becerra's office did not comment on the case Friday but said it would let the office's stay motion "speak for itself."

The motion, filed April 24, argued that "time is of the essence" because the decision "will result, and may have already resulted, in prohibited persons purchasing ammunition from ammunition stores -- potentially hundreds of them in the months it might take to litigate the preliminary injunction appeal."

The plaintiffs have not shown the laws have prevented or significantly delayed them from purchasing ammunition, the filing stated, despite evidence presented that the "average purchaser" typically waits a matter of minutes to a few days to complete a background check.

"Preserving the status quo will thus prevent prohibited people from acquiring ammunition, and will not prevent the individual plaintiffs -- or any similarly situated purchases -- from doing so," the motion states.

An opposition to the stay filed by Michel on Thursday argued the state failed to prove it would suffer any harm should Benitez's ruling be upheld. On the other hand, plaintiffs argued, "A stay will cause plaintiffs and millions of California residents to endure continued violations of their constitutional rights."

"Each day the injunction is delayed is another day Californians are denied the exercise of their right to acquire ammunition free from the challenged provisions' unlawful burdens. Denial of a fundamental right is irreparable injury -- even if for a moment," the filing stated.

That opposition's brief is pending.

But the case won't get to the U.S. Supreme Court in time to be considered a standard-bearer for a ruling on whether lower courts are properly applying the rulings in the cases of District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. Chicago, 561 U.S. 742 (2010)-- the court's last major Second Amendment decisions. The high court last week chose not to rule in the case of New York State Rifle & Pistol Association v. New York, 590 U.S. (2020), which challenged a city ordinance restricting the transportation of firearms after six justices argued the case was moot because the law changed while the case was pending.

Justice Samuel A. Alito, joined by Justices Neil M. Gorsuch and Clarence Thomas in his dissent, argued that "by incorrectly dismissing this case as moot, the court permits our docket to be manipulated in a way it should not be countenanced."

Alito pointed to Heller and McDonald, which held the right of ordinary Americans to bear arms as outlined in the Second Amendment is applicable to the states.

Justices Brett M. Kavanaugh, Alito, Gorsuch and Thomas expressed concerns that lower courts are not properly applying those decisions. And Kavanaugh opined that the court needed to move quickly with another Second Amendment case to ensure they are.

In his one-page opinion, Kavanaugh wrote he shares Alito's concerns and, "The court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court." Nearly a dozen cases the court had been holding under consideration pending the outcome of the New York case were placed on the court's conference schedule for today for a decision on whether to grant one or more of them, or wait for a better vehicle.

Michel said Friday he doesn't think the court will punt but will choose Rogers v. Grewal, 18-2366 (3rd Cir. Sept. 21, 2018). to assert its previous Second Amendment rulings.

"That is the case about public carry, bearing arms, and that is an issue where there is a circuit split among the courts about whether or not state governments have to issue permits to people who want to carry a firearm in public for self-defense," he Michel said.

As for the future of Rhode, Michel is playing it by ear, but he hasn't excluded the option of taking it to the high court.

"Until we get an indication of what they're thinking, we're not going to commit to doing anything one way or another in Rhode," he said. "If the 9th Circuit does not lift the stay, we want to see why they say they're not going to."