In Rhode v. Bonta,[1] the Ninth Circuit Court of Appeals concluded that California’s background check regime for ammunition purchases violates the Second Amendment.
Background
California voters approved Proposition 63, which created a background check regime for ammunition sales. This regime went into effect July 1, 2019. California requires residents to purchase ammunition through licensed ammunition vendors in face-to-face transactions. The sale of ammunition must be approved by the California Department of Justice (the “Department”). The statutes and regulations provide a detailed description of the four ways that a person can obtain authorization to purchase ammunition with them passing some form of background checks involving databases, records kept by the department, or other means.
While California residents may buy ammunition remotely, such as over the internet, they may not access the ammunition without a face-to-face transaction in California. If residents purchase ammunition outside of California, they must have the ammunition delivered to a licensed ammunition vendor for delivery pursuant to certain procedures set forth by statute. If neither party to an ammunition sale is a licensed vendor, the seller must deliver the ammunition to a licensed vendor for processing. When ammunition has been delivered to a California licensed vendor on behalf of a California purchaser, the vendor must take several steps before delivering the ammunition to the purchaser. A vendor may not deliver ammunition to a buyer unless the buyer is “authorized to purchase ammunition” as verified by the department. If the buyer is so authorized, the licensed vendor can charge the buyer a processing fee.
The department must approve a sale or transfer of ammunition “at the time of purchase or transfer, prior to the purchaser or transferee taking possession of the ammunition.” Penal Code section 30370(a). Other than the 10-day waiting period for purchasing ammunition as part of a firearms transaction under Penal Code Section 26815(a), there is no language in the applicable rules regarding the allowable delay time in approving or denying a background check. Section 30370(a) requires that approval occur before a person can take possession of the ammunition, but it does not require that approval be given within a certain time period.
In 2018, Kim Rhode filed a pre-enforcement action along with six other California residents, three out-of-state ammunition vendors, and the California Rifle & Pistol Association, Inc. The plaintiffs (collectively, “Rhode”) facially challenged California’s ammunition background check regime, arguing in part that California’s ammunition background check regime infringes upon California residents’ Second Amendment right to keep and bear arms.
The District Court issued a preliminary injunction barring California from enforcing the ammunition sales background check provisions found in Penal Code sections 30370(a) through (d) and 30352, and the ammunition anti-importation provisions found in Sections 30312(a) and (b), 30314(a). After the United States Supreme Court issued its decision in New York State Rifle and Pistol Association v. Bruen, 597 U.S. 1 (2022), the Ninth Circuit Court of Appeals vacated the preliminary injunction and remanded to the District Court for further proceedings consistent with Bruen.
On remand, the District Court consolidated the hearing on the motion for a preliminary injunction with a trial on the merits. After the hearing, the District Court permanently enjoined California from enforcing the ammunition sales background check provisions. The District Court also enjoined California from criminally enforcing Sections 30312(d), 30314(c), and 30365(a). It concluded in part that California’s ammunition background check regime violated the Second Amendment.
California appealed, and a motions panel of the Ninth Circuit Court of Appeals granted California’s motion to stay the District Court’s permanent injunction and judgment.
Discussion
The Ninth Circuit observed that the Second Amendment provides that “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II.[2] The Ninth Circuit explained that the Supreme Court’s decision in New York State Rifle and Pistol Association v. Bruen, 597 U.S. 1 (2022) provides a two-part framework for assessing Second Amendment challenges. “[W]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.” Id. at 17. The government must then show that the challenged rule “is consistent with this Nation’s historical tradition of firearm regulation.” Id.
The Supreme Court held in District of Columbia v. Heller, 554 U.S. 570, 630, 635 (2008), that a requirement that firearms be “kept inoperable” is unconstitutional. The Ninth Circuit explained that because arms are inoperable without ammunition, the Second Amendment right to keep and bear arms necessarily encompasses the right to have ammunition. Thus, at the first step of Bruen, the text of the Second Amendment applies to the right to keep and bear operable arms, which includes the right to have ammunition.
The Court also observed that the right to keep and bear arms “wouldn’t mean much without the ability to acquire arms.” See Teixeira v. County of Alameda, 873 F.3d 670, 677 (9th Cir. 2017) (en banc) (internal quotation marks and citations omitted). Therefore, “laws imposing conditions and qualifications on the commercial sale of arms” implicate the plain text of the Second Amendment if they “‘meaningfully constrain[]’ the right to keep and bear arms.” B&L Prods., Inc. v. Newsom, 104 F.4th 108, 118-19 (9th Cir. 2024) (first quoting Heller, 554 U.S. 626-27, 627 n.26; and then quoting Teixeira, 873 F.3d at 680). Pointing to another recent Second Amendment case as an example, the “monthly metering of firearm purchases meaningfully constrains the right to purchase and possess firearms and is thus presumptively unconstitutional.” Nguyen v. Bonta, 140 F.4th 1237, 1240 (9th Cir. 2025).[3]
The Ninth Circuit explained that at the second step of the Bruen framework, a court’s determination whether a law is “consistent with this Nation’s historical tradition” “will often involve reasoning by analogy.” 597 U.S. at 17, 28. When determining whether a historical regulation is a proper analogue for a modern regulation, courts must consider whether the historical and modern regulations are “relevantly similar.” Id. at 28-29 (citation omitted). For the challenged rule to pass constitutional muster, it must be a “well-established and representative historical analogue, not a historical twin.” Bruen, 597 U.S. at 30 (emphasis in original).
The Ninth Circuit then applied Bruen’s two-step framework to assess the constitutionality of California’s ammunition background check regime. Rhode’s proposed course of conduct was to acquire ammunition. California did not dispute that the right to keep ammunition is entitled to protection under the Second Amendment or that the ammunition background check regime impacts “the people” that the Second Amendment protects, as the rules apply to all residents of California. The Court explained that because Rhode asserted a facial challenge, in considering whether California’s ammunition background check regime meaningfully constrained the right to keep and bear arms, the Court looked only at the text of the challenged rules. Because the right to keep and bear arms includes the right to keep operable arms, rules on ammunition acquisition implicated the plain text of the Second Amendment if they meaningfully constrained the right to keep operable arms.
The Ninth Circuit concluded that California’s ammunition background check meaningfully constrains the right to keep operable arms. The Court explained that California’s ammunition background check regime regulates all ammunition acquisitions by California residents; the regime applies not only to every transaction in California but also to ammunition purchases by California residents outside the state.[4]
California proposed four different historical analogues as relevantly similar to California’s ammunition background check regime: loyalty oath requirements and loyalist disarmament provisions at the founding and during Reconstruction, 19th century concealed carry permitting requirements, surety laws imposed at the founding on persons who presented a danger to the community, and licensing and recordkeeping requirements imposed on vendors of gunpowder and firearms. After analyzing the proposed analogues, however, the Ninth Circuit concluded that none of them were within the relevant time frame or were relevantly similar to California’s ammunition background regime: the “how” and “why” those historical regulations “burden[e]d a law-abiding citizen’s right to armed self-defense” (Bruen, 597 U.S. at 29) was not relevantly analogous to the “how” and “why” of California’s ammunition background check regime.
The Court of Appeals next considered Bruen’s footnote stating that “nothing in [the Supreme Court’s] analysis should be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes.” The Ninth Circuit explained that the Supreme Court indicated that shall-issue regimes may be constitutional but did not hold that they were per se consistent with the Second Amendment. Moreover, Bruen shed no light on the constitutionality of an ammunition background check regime, which is meaningfully distinguishable from a shall-issue licensing regime.
The Ninth Circuit thus concluded that California’s ammunition background check regime did not survive scrutiny under the two-step Bruen analysis. Because California’s ammunition background check regime violated the Second Amendment, the Ninth Circuit Court of Appeals affirmed the District Court’s grant of a permanent injunction.
HOW THIS AFFECTS YOUR AGENCY
Agencies may observe that this opinion presents yet another rebuke to California’s firearm statutory regime in the aftermath of the Supreme Court’s establishment of the two-step Bruen framework for Second Amendment challenges. The Supreme Court is likely to address some challenges to such decisions affecting firearm laws in California and elsewhere. We will continue to update you as these legal challenges to statutes restricting firearm ownership and use proceed through the courts.
As always, if you wish to discuss this matter in greater detail, please feel free to contact Jim Touchstone at (714) 446–1400 or via email at jrt@jones-mayer.com
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[1] 2025 U.S. App. LEXIS 18474 (9th Cir. July 24, 2025).
[2] The Fourteenth Amendment incorporates the Second Amendment right against the states.
[3] See Client Alert Vol. 40 No. 14.
[4] Penal Code sections 30312, 30314, 30370.