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Appellate Court Affirms Unconstitutionality of California Ammunition Controls

Friday, November 8, 2013

To follow up on an earlier NRA report, on November 6, California's Court of Appeals upheld a lower court decision invalidating a California law that threatened to limit access to, and compel recordkeeping for, ammunition sales.   

The law, enacted as part of Assembly Bill No. 962, sought to impose onerous restrictions on the sale, delivery, and transfer of "handgun ammunition," with criminal penalties for noncompliance.  With some exceptions, it banned mail-order sales by requiring that the delivery or transfer take place through face-to-face transactions, with "bona fide evidence of identity" from the purchaser.  The purchaser also had to provide the vendor with a date of birth, address, telephone number, driver's license number, signature, and a right thumbprint.  This information, along with the brand, type, and amount of ammunition sold, and the salesperson's name, would have to be maintained as a record by the vendor for five years.

However, the key sticking point was Cal. Penal Code § 16650(a), which defined "handgun ammunition" as "ammunition principally for use in pistols, revolvers, and other firearms capable of being concealed upon the person, notwithstanding that the ammunition may also be used in some rifles."  Another section defined pistols, revolvers, and concealable firearms exclusively by reference to barrel length or barrel interchangeability design--specifically, as those with a barrel less than 16 inches long.

The lead plaintiff, Clay Parker, the Tehama County Sheriff, was joined by the NRA, the California Rifle and Pistol Association (CRPA), and several others in a lawsuit that alleged these definitions, in the absence of any standard that further clarified the term "principally for use," created insurmountable ambiguities that made it impossible for an ordinary, reasonable person to comply with the law. Virtually all calibers of ammunition could be used safely in both rifles and handguns, and the use standard could be interpreted (or not) to mean only California users, or civilian users, or by reference to the ammunition market at any given time.  They brought a facial challenge to the criminal law, claiming it was void for vagueness under the due process clause of the Fourteenth Amendment (in plain English, that the law, as written, failed to give fair warning of the conduct that was prohibited, and lacked sufficiently definite guidelines to prevent arbitrary or discriminatory enforcement by the police).

Significantly, the evidence before the court on what constituted "handgun ammunition" was inconsistent, and in many instances, was simply based on the person's personal experience; the State's expert categorically excluded all .22-caliber ammunition, citing a need for "further research and analysis".  Unsurprisingly, no expert was able to reference an industry standard or a universally accepted definition.  The trial court, finding the law lacked any objective means by which an ordinary citizen or ammunition vendor could determine which ammunition was most likely to be used in handguns, and standards that protected citizens from the personal judgment call of each individual law enforcement officer, declared the challenged provisions were constitutionally invalid and enjoined their enforcement.

On appeal, California's Fifth Appellate District Court agreed.  What raised the stakes was that the law subjected persons to criminal liability, and clearly implicated a "substantial amount" of constitutionally protected conduct, both individual rights under the Second Amendment (which included the right to acquire ammunition for one's firearms), and the vendors' Fourteenth Amendment right to engage in legitimate business activity.  The court found persuasive the fact that several firearms users, vendors with different backgrounds, and experts had testified in the case, and "none shared the same understanding of what is meant by the notion of ammunition 'principally for use' in handguns."  All of these persons had some level of specialized knowledge, which raised the question of how ordinary citizens--also bound by the transfer of "handgun ammunition" requirements--would be expected to successfully identify what was covered by the law.

The State's argument--that it was no secret that certain ammunition cartridges were more often used in handguns than in rifles--was too much of a hit-and-miss standard.  "In the absence of baseline standards, the classification of interchangeable calibers and cartridges as 'handgun ammunition" may be … a moving target."  The court recognized the legal ambiguity as to what was "handgun ammunition" would have likely forced vendors, particularly mail-order and Internet sellers, to curtail ammunition sales, or make sales at the risk of criminal liability, resulting in ammunition being unavailable, or available at a greatly increased cost, to individuals in rural or remote areas.  The lack of statutory guidance also effectively conferred discretion on individual police officers to interpret the law as each saw fit, leading to selective or haphazard enforcement.

This decision marks an important victory for California's beleaguered gun owners.  It ensures (at least for now) that they will remain free from the law's onerous and burdensome requirements, while also highlighting the half-hazard and ill-considered thinking that underlies California gun control agenda.

A copy of the court's ruling is available here



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Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.