On November 6, 2013, the California Court of Appeals for the 5th District affirmed the lower court’s issuance of a permanent injunction in the NRA/CRPA backed legal challenge to Assembly Bill (AB) 962, Parker v. California. AB 962 would have banned mail order ammunition sales and required all purchases of so-called "handgun ammunition" to be registered. The court’s 41 page published opinion confirms that AB 962 is unconstitutionally vague and cannot be enforced.
The appellate decision comes approximately two years after the trial court issued a dramatic ruling giving gun owners a win just days before the law was set to take effect in 2010. The appellate court’s decision confirms that mail order ammunition sales to California can continue and ammunition sales need not be registered under current law.
The lawsuit, litigated by the NRA’s California counsel at Michel and Associates, P.C., was prompted in part by the many objections and questions raised by confused police, ammunition purchasers, and sellers about what ammunition would have been covered by AB 962. In a move that reflects growing law enforcement opposition to ineffective gun control laws, former Tehama County Sheriff Clay Parker was the lead plaintiff in the lawsuit. Other plaintiffs included the CRPA Foundation, Herb Bauer Sporting Goods, ammunition shipper Able’s Ammo, collectible ammunition shipper RTG Sporting collectibles and individual Steven Stonecipher.
In addition to these plaintiffs, Mendocino Sheriff Tom Allman, along with ammunition shippers Midway USA, Natchez Shooters Supplies and Cheaper Than Dirt also submitted declarations in support of the lawsuit. Amicus briefs were submitted to the Court of Appeals by the Law Enforcement Alliance of America, Gun Owners of California, and FFLGuard.
The Court of Appeals agreed with plaintiffs’ claims that AB 962 is unconstitutionally vague because it fails to provide sufficient notice of what ammunition is "principally for use in a handgun," and thus considered "handgun ammunition" under the law. The court explained that it would be practically impossible for consumers, retailers, and law enforcement to determine whether any of the thousands of different types of ammunition cartridges that can be used in handguns are actually used more often in a handgun. The proportional usage of any given cartridge is impossible to determine, and it changes with market demands.
The legislature itself was well aware of the vagueness problem with AB 962 and tried, but failed, to redefine the law. Rather than provide a clear list of the ammunition that would be prohibited, however, the legislature used the amendments as an attempt to expand the law to apply to even more types of ammunition, and also tried to expand the law in other ways.
The opinion also confirmed the applicable standard of review that should be applied in constitutional vagueness challenges, a larger legal issue that has been unsettled by the courts for years. The Court expressly confirmed that a law need not be vague in every conceivable application to be found unconstitutionally vague on its face, particularly when the law regulates constitutionally-protected activity, in this case the transfer of ammunition. In that respect the opinion brings some much needed clarity to this general area of the law.
Despite this common sense win over ill-conceived and counter-productive laws, additional legislation on this and related subjects will no doubt be proposed in the future. Those who believe in the right to keep and bear arms must stay informed and make their voices heard in Sacramento. To help, sign up for legislative alerts at www.nraila.com and www.calnra.com and respond when called upon. To assist in the fight against these persistent attacks on gun owners’ rights in California, please also donate to the NRA Legal Action Project today.
Second Amendment supporters should also be careful about supporting well intentioned, but unfortunately counterproductive litigation brought by individuals and groups without access to the necessary funding, relationships, firearm experts, and experienced lawyers on the NRA's national legal team. The NRA's team of highly regarded civil rights attorneys and scholars has the resources, skill, and expertise to maximize the potential for victory. For a summary of the many actions the NRA legal team has taken or is currently taking on behalf of California gun owners, click here.
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