Ninth Circuit Kills California’s Ammo Background Check Law: Here is the Decision – and the Dissent

BYBEE, Circuit Judge, dissenting:

“meaningfully constrains” the right to keep and bear arms. See B&L, 104 F.4th at 119.

Second, as I explain in Part II, the majority sharply departs from Bruen. The majority invents a new rule to exclude California’s law from the realm of “presumptively lawful” licensing regimes endorsed by Bruen and District of Columbia v. Heller, 554 U.S. 570 (2008). The majority concludes—after it decides that California’s law is a historical, and thus unconstitutional—that California’s law is not “presumptively lawful.” Maj. Op. at 46–49. In reaching this conclusion, the majority cites no authority; ignores the criteria that Bruen provided for evaluating a law’s presumptive lawfulness; incompletely applies Bruen’s analogical mode of reasoning; and, paradoxically, punishes the government for making its “presumptively lawful” background checks more efficient.

Finally, in Parts III and IV, I turn to the Dormant Commerce Clause and preemption arguments the majority does not reach. On this record, and in this procedural posture, I would reverse the judgment of the district court. I respectfully dissent.

I

The Second Amendment of the United States Constitution protects “the right of the people to keep and bear Arms.” U.S. Const. amend. II. Bruen ushered in a new era for Second Amendment jurisprudence by imposing a two-step test for Second Amendment challenges. See 597 U.S.at 17. We recently applied Bruen’s first step—which considers whether a plaintiff’s conduct falls within the Second Amendment’s “plain text”—in B&L Productions, Inc. v. Newsom, in which plaintiffs analogously asserted a right to acquire firearms. See 104 F.4th at 117. The majority’s analysis here is irreconcilable with that approach.

A

Bruen imposes a two-step test: first, a “plain text” analysis that considers whether plaintiffs’ asserted conduct falls within the scope of the Second Amendment and, second, the historical analysis. See, e.g., United States v. Rush, 130 F.4th 633, 638 (7th Cir. 2025) (“Bruen set forth a two-step test for evaluating the constitutionality of a statute under the Second Amendment.” (citation omitted)); Md. Shall Issue, Inc. v. Moore, 116 F.4th 211, 218 (4th Cir. 2024) (en banc) (“[T]he Court established a new, two-step framework for evaluating Second Amendment challenges.”), cert. denied, 145 S. Ct. 1049 (2025).

We proceed to Bruen’s second step—the historical analysis—only if we conclude that plaintiffs have asserted their “plain text” right to “keep and bear arms.” See Doe v. Bonta, 101 F.4th 633, 639 (9th Cir. 2024); accord United States v. Price, 111 F.4th 392, 400 (4th Cir. 2024) (“Bruen’s first step requires us to evaluate whether ‘the Second Amendment’s plain text covers an individual’s conduct.’” (quoting Bruen, 597 U.S. at 24)); Antonyuk v. James, 120 F.4th 941, 981 (2d Cir. 2024) (“Bruen instructs that history is relevant only if ‘the Second Amendment’s plain text covers an individual’s conduct[.]’” (quoting Bruen, 597 U.S. at 17)); Rocky Mountain Gun Owners v. Polis, 121 F.4th 96, 113 (10th Cir. 2024) (“At step one, the plaintiff has the burden of establishing that ‘the Second Amendment’s plain text covers’ either the conduct they engaged or intended to engage in.” (quoting Bruen, 597 U.S. at 17)).

We perform the first step because “the plain text of the Second Amendment directly protects one thing—the right to ‘keep and bear’ firearms.” B&L, 104 F.4th at 117 (quoting U.S. Const. amend. II). Accordingly, not all firearm-related regulations implicate the right to keep and bear arms for self- defense. Instead, “whether a regulation is covered by the Second Amendment’s plain text must be tied to ‘the conduct the regulation prevents [the individual] from engaging in.’”United States v. Manney, 114 F.4th 1048, 1052 (9th Cir. 2024) (quoting Doe, 101 F.4th at 639).

Sometimes, plaintiffs’ conduct indisputably falls within the Second Amendment’s plain text, where, for example, the government regulates the “keeping” or “bearing” of arms. This type of regulation was at issue in a trilogy of Supreme Court cases: Bruen, McDonald v. City of Chicago, 561 U.S. 742 (2010), and Heller. In Bruen, the plaintiffs’ “proposed course of conduct [was] carrying handguns publicly for self- defense.” 597 U.S. at 32 (emphasis added). In McDonald, the plaintiffs sought to “keep their handguns in their homes for protection.” 561 U.S. at 751 (emphasis added). In Heller, the plaintiff “applied for a registration certificate for a handgun that he wished to keep at home.” 554 U.S. at 575 (emphasis added). The plaintiffs in these cases indisputably asserted their core right to keep and bear arms.

But when plaintiffs assert any conduct other than keeping or bearing arms, their conduct necessarily falls outside the Second Amendment’s plain text. As we observed in B&L, the “Supreme Court has made clear that the Second Amendment does not speak to all restrictions that impact firearms in any way.” 104 F.4th at 118 (quoting Bruen, 597 U.S. at 81 (Kavanaugh, J., concurring)). We explained that “[a]ncillary rights,” like the “right to acquire firearms,” are only “protected to the extent necessary to serve [Second Amendment] purposes, [such as self- defense]; otherwise, the Second Amendment is not implicated by restraints on such rights.” Id. (footnote omitted).

When regulations concern “implied corollary rights . . . our analysis begins one step removed from the plain text.”Oakland Tactical Supply, LLC v. Howell Twp., 103 F.4th 1186, 1196 (6th Cir. 2024). Accordingly, we subject these regulations to historical scrutiny if—and only if—they “meaningfully constrain” the “core right” to “keep and bear” arms. See B&L, 104 F.4th at 118–19; Teixeira, 873 F.3d at 677; see also Oakland Tactical Supply, 103 F.4th at 1196 (considering whether a zoning regulation “restrict[ed] conduct necessary to effectuate” the core Second Amendment right); Gazzola v. Hochul, 88 F.4th 186, 197 (2d Cir. 2023) (applying Teixeira’s “meaningfully constrained” standard where plaintiffs challenged a law that regulated the purchase of firearms). “Under [this] approach . . . a ban on all sales of a certain type of gun or ammunition” would “meaningfully constrain[]” the right to keep and bear arms, while “a minor constraint on the precise locations within a geographic area where one can acquire firearms [would] not.” B&L, 104 F.4th at 119.

“[A] facial challenge” to a gun regulation, such as this one, “fails if the law is constitutional in at least some of its applications.” Rahimi, 602 U.S. at 701 n.2 (citing United States v. Salerno, 481 U.S. 739, 745 (1987)). We recently held that, when “[p]laintiffs assert a facial challenge, ‘we consider only the text of the [statute].’” Nguyen v. Bonta, 140 F.4th 1237, 1240 (9th Cir. 2025) (quoting Calvary Chapel Bible Fellowship v. County of Riverside, 948 F.3d 1172, 1176 (9th Cir. 2020)) (second alteration in original). To sustain Plaintiffs’ facial challenge, the majority must show that California’s law “meaningfully constrains” the right to keep and bear arms, and that it does so in all of its applications. That means that the majority must demonstrate that the law’s one-dollar fee and “time of purchase” background check categorically violate the Second Amendment. See Cal. Penal Code § 30370(a). As I discuss in greater detail in the next section, the majority does not come close to satisfying that burden.

Our en banc decision in Teixeira clarified that regulations on firearm and ammunition acquisition do not “meaningfully constrain” the right to keep and bear arms unless they effectively constrain “access” to firearms or ammunition. 873 F.3d at 680 (emphasis added); see also B&L, 104 F.4th at 119 (“[T]he approach we took in Teixeira—whether a challenged regulation meaningfully impairs an individual’s ability to access firearms—remains appropriate.”) (emphasis added); Gazzola, 88 F.4th 186, 192, 197–98 (concluding that “New York’s commercial laws regulating the sale and transfer of firearms” did not “meaningfully constrain[]” the right to keep and bear arms because plaintiffs had “relatively easy access to sellers of firearms”) (emphasis added). At bottom, Teixeira considered whether the challenged “ordinance impede[d]” plaintiffs “from acquiring firearms.” 873 F.3d at 678.

California’s law—which, on its face, imposes no delay, and a mere one-dollar fee1—is not the kind of heavy-handed regulation that meaningfully constrains the right to keep and bear arms. The law does not categorically limit the amount of ammunition that Californians may purchase, akin to the law that we recently found unconstitutional in Nguyen. See 140 F.4th at 1239–40 (concerning a California law that “prohibit[ed] most people from buying more than one firearm in a 30-day period”). Nor is California’s law a “ban on all sales of a certain type of gun or ammunition,” which

1 The majority, which recites Nguyen’s admonition that “we consider only the text of the [challenged rules],” Maj. Op. at 20 (quoting 140 F.4th at 1240), insists that the Standard Check imposes a $31.19 fee. That fee applies to firearm registration, see Cal. Code Regs. tit. 11, § 4001, not ammunition purchases, and is not challenged here by the Plaintiffs.

is another type of restriction that we concluded would “meaningfully impair[] an individual’s ability to access firearms.” See B&L, 104 F.4th at 119. “This is not a case where [California] seeks to achieve through its [one-dollar fee] what it cannot do directly—ban all [ammunition].” See Oakland Tactical Supply, 103 F.4th at 1198. California’s law does not “shoehorn[] restrictions on purchase into [a] functional prohibition[] on keeping.” See McRorey v. Garland, 99 F.4th 831, 838 (5th Cir. 2024). Accordingly, California’s law does not meaningfully constrain the right to keep and bear arms.

Nor does California’s imposition of a one-dollar fee and a background check for ammunition purchases “impede” Californians from acquiring ammunition any more than the Teixeira ordinance did. See 873 F.3d at 678. Teixeira held that an Alameda County zoning ordinance that caused individuals “to travel to other, more remote locations” to purchase firearms and ammunition did not “meaningfully constrain” the right to keep and bear arms because individuals could still access firearms and ammunition at those “more remote locations.” Id. at 679. Here, California’s minimal fee and “time of purchase” background check are less “meaningful” than the Teixeira ordinance’s inducement of travel to “more remote” areas. See Cal. Penal Code § 30370(a); id. Because it would be fatuous to suggest that only a cheaper and shorter “constraint”—say, a twenty- five-cent fee and an instantaneous “time of purchase” approval—could pass muster under Teixeira, the majority has necessarily concluded that no regulation on firearm or ammunition acquisition could pass muster.

The majority has failed to consider whether California’s law impedes access to operable firearms, as B&L and Teixeira instruct. Instead, the majority concludes that California’s law “meaningfully constrains” the right to keep and bear arms simply because it “regulates all ammunition acquisition by California residents.” Maj. Op. 26. As the majority explains, California’s “regime . . . requires California residents to pay for and complete an in-person background check before each ammunition acquisition.” Maj. Op. at 26 (citations omitted). The majority has not even attempted to explain how these features necessarily “impede[]” firearm access. Cf. Teixeira, 873 F.3d at 678. Instead, the majority has described, in the broadest possible terms, the essential features of any state or federal regulation governing acquiring ammunition. Its conclusion is bereft of analysis; it describes California’s scheme and announces its conclusion, as though the Second Amendment violation were self-evident.

The majority’s novel standard effectively abrogates Bruen’s first step. It will require courts to conduct historical scrutiny of any regulation on acquisition that regulates all gun or ammunition purchases. State and federal governments will be compelled to produce historical analogues for laws that require gun purchasers to show proof of their age;2 fill out a short form providing biographical details;3 or, as we cautioned in Manney, even “wait a short time” at a gun store, 114 F.4th at 1052. Nor will states be able to impose regulations designed to prevent gun

2 See, e.g., 18 U.S.C. § 922(b)(1) (prohibiting the sale of handguns and ammunition to juveniles).

3 See, e.g., Manney, 114 F.4th at 1052 (rejecting the proposition that requiring a purchaser to attest that they are the actual purchaser of a firearm implicated the Second Amendment’s plain text).

trafficking without producing a historical analogue.4 All of these provisions universally regulate some aspect of firearm acquisition.

We have repeatedly rejected the majority’s boundless interpretation of the Second Amendment. We did so most recently in Manney, which held that a federal statute that applied nationwide to every gun purchase did not implicate the Second Amendment’s plain text.5 We abjured the notion that “any regulation related to the process of purchasing firearms [is] covered by the Second Amendment’s plain text, regardless of the conduct the statute regulates.” 114 F.4th at 1052. That conclusion is impossible to square with the majority’s assertion that California’s law “meaningfully constrains” the right to keep and bear arms—and thus implicates the Second Amendment’s plain text—for simply applying to all California ammunition purchases.6 In fact, it

4 See, e.g., Cal. Penal Code § 27520(a) (“A person . . . shall not acquire . . . a firearm for the purpose of selling, loaning, or transferring the firearm . . . [with] intent to avoid . . . [t]he provisions of Section 27545.”); see also Cal. Penal Code § 27545 (“Where neither party to the transaction holds a dealer’s license . . . the parties to the transaction shall complete the sale, loan or transfer of that firearm through a licensed firearms dealer[.]”).

5 See Manney, 114 F.4th at 1050 (concerning a challenge to 18 U.S.C. § 922(a)(6), which “makes it a crime ‘for any person in connection with the acquisition or attempted acquisition of any firearm . . . [to] knowingly to make any false or fictitious oral or written statement . . . with respect to any fact material to the lawfulness of the sale . . . of such firearm’”).

6 The majority asserts that Manney “is not applicable here” because it concerned conduct—“lying”—that was “unrelated to the possession of a firearm.” Maj. Op. at 28 n.20 (citing 114 F.4th at 1053). The majority fails to recognize that the same principle animates both Manney and this case: “The plain text of the Second Amendment directly protects [only] is difficult to imagine a regulation on the acquisition of ammunition or firearms that would not “meaningfully constrain” the right to keep and bear arms under the majority’s new general applicability standard. That contradicts our admonition in B&L that “the right to acquire firearms []only implicates the Second Amendment in limited circumstances,” see 104 F.4th at 118, and our holding in Teixeira that “the Second Amendment does not elevate convenience and preference over all other considerations.” 873 F.3d at 680. We should have reaffirmed those cases again here. See 114 F.4th at 119.

Unsurprisingly, the majority’s expansive holding also breaks with our sister circuits, which have found that laws imposing far more meaningful constraints on gun purchases did not implicate the Second Amendment’s plain text. Cf. Md. Shall Issue, 116 F.4th at 217, 227, 229 (holding that a background check law that imposed a twenty-four hour delay and initial $50 fee on firearm purchases did not “infringe” the Second Amendment); McRorey, 99 F.4th at 838–40 (holding that a background check law that delayed firearm purchases for ten business days was likely permissible under the Second Amendment).

C

In an attempt to shore up its sweeping opinion, the majority adopts an untenable reading of California’s law that disregards the Supreme Court’s and our own guidance for evaluating facial challenges. The majority stresses that “we consider only the text of the challenged rules in assessing a

one thing—the right to ‘keep and bear’ firearms.” See B&L, 104 F.4th at 117. Just as the Second Amendment says nothing about “lying,” it “says nothing about commerce.” See id.

facial challenge.” Maj. Op. at 28 n.19 (citing Nguyen, 140 F.4th at 1240). But the majority ignores its own admonition: It asserts that “the text does not limit permissible delay times” associated with background checks—even though the text requires that approval occur at the “time of purchase.” Maj. Op. at 28 n.19; Cal. Penal Code § 30370(a). The majority’s reading of the statute is utterly implausible. Even if the majority could persuasively read “time of purchase” as contemplating some vague “delay,” any speculation about that delay would be flatly inappropriate in this facial posture. As the Supreme Court has instructed, we must “consider the circumstances in which” gun regulations are “most likely to be constitutional” rather than “hypothetical scenarios where” they “might raise constitutional concerns.” Rahimi, 602 U.S. at 701.

As I have pointed out, in order to conclude in a facial challenge that California’s law “meaningfully constrains” the right to keep and bear arms on its face, the majority must demonstrate that all of the law’s conceivable applications do so. So if, for example, California could show—and it can7—

7 California’s evidence reveals that the state approved tens of thousands of ammunition purchases within just the first month of the scheme’s operation. And, according to uncontested evidence from the California Department of Justice’s Bureau of Firearms, California has approved hundreds of thousands more since then:

From January 1, 2023, through June 30, 2023, the Department processed 538,359 AFS Checks, which is roughly 99.2% of all ammunition eligibility checks during this time. It approved 480,131 (89%), rejected 58,087 (11%) because the information submitted by the purchaser did not match an AFS entry, and denied 141 (0.03%) because the Department’s information that its law overwhelmingly imposed a one-dollar fee and a one-minute approval process, the majority must show that this application meaningfully constrains the right to keep and bear arms. The majority does not even attempt such analysis. Instead, the majority makes repeated allusions to hypothetical, nontextual “delays,” see, e.g., Maj. Op. 30, that leave “the panel slaying a straw man,” see Rahimi, 602 U.S. 701.

In this facial posture, and on this record, I would hold that California’s imposition of a de minimis delay and small fee for purchasing ammunition cannot possibly “meaningfully constrain” the right to keep and bear arms.

II

Even though Plaintiffs do not assert a right that falls within the Second Amendment’s “plain text,” and even though California’s ammunition background check scheme does not “meaningfully constrain” the right to keep and bear arms, the scheme is constitutional for an independent reason:

showed the purchaser to be on the Armed Prohibited Persons System (APPS) list.

From January 1, 2023, through June 30, 2023, AFS Checks were completed within 170.7 seconds on average.

From January 1, 2023, through June 30, 2023, taking into account all types of ammunition eligibility checks—AFS Checks, Basic Checks, and COE Checks—more than 99% of all ammunition eligibility checks were completed in less than one minute, and more than 88% of all ammunition eligibility checks were approved in less than one minute.

Plaintiffs’ facial challenge cannot surmount the burden of its own theory, much less this evidence.

The Supreme Court has repeatedly recognized that objective, “shall-issue” licensing regimes—like California’s—are presumptively lawful, and Plaintiffs have failed to rebut that presumption. This analysis requires approaching the Second Amendment from a slightly different angle, but the result is the same.

A

The Court’s seminal decision in Heller characterized “laws imposing conditions and qualifications on the commercial sale of arms” as “presumptively lawful regulatory measures.” 554 U.S. at 626–27 & n.26. Bruen, despite introducing a rigorous historical analysis, affirmed that these “‘shall issue’ regimes, which often require applicants to undergo a background check,” are constitutionally permissible. 597 U.S. at 38 n.9. Accordingly, the government may impose certain minimum requirements on the commercial sale of arms so long as they are “narrow, objective, and definite.” Id.

But this presumption can be overcome. Plaintiffs may “rebut[] th[e] presumption of constitutionality by showing that a ‘shall-issue’ licensing law effectively ‘den[ies]’ the right to keep and bear arms,” in which case “the burden shifts to the government to demonstrate that the regulation is ‘consistent with this Nation’s historical tradition of firearm regulation.’” Md. Shall Issue, 116 F.4th at 223 (quoting Bruen, 597 U.S. at 17, 38 n.9). “[I]f the government does not satisfy its burden in such cases, then the ‘shall-issue’ licensing law violates the Second Amendment.” Id.

The Supreme Court has not clarified where, exactly, the “shall-issue” analysis falls within Bruen’s two-step inquiry. In B&L, we held that “[t]he most reasonable interpretation of [Bruen and Heller] is that commercial restrictions presumptively do not implicate the plain text of the Second Amendment at the first step of the Bruen test.” 104 F.4th at 119. I did that analysis in Part I, which explained that Bruen’s step one typically considers whether a plaintiff’s putatively protected conduct falls within the Second Amendment’s plain text. See Bruen, 597 U.S. at 24 (“When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.”). By contrast, Bruen’s and Heller’s “shall-issue” analysis requires us to scrutinize the government’s conduct. These are two discrete analyses that apply different standards to different parties. Accordingly, they invite separate consideration.

Regardless of where, exactly, the “shall-issue” analysis lives within the Bruen scheme, there is no dispute that it operates as a “presumption” of lawfulness. Yet the majority begins with the claim that California cannot provide “historical analogues,” Rahimi, 602 U.S. at 700, and that its ammunition licensing scheme thus violates the Second Amendment. Maj. Op. at 31–46. But this treats Heller’s approval of “presumptively lawful regulatory measures,” as an affirmative defense to a law’s unconstitutionality. 554 U.S. at 627 n.26. This is inconsistent with Heller and Bruen.

The majority has effectively reversed the presumption, and the order of operations matters.8 By the time the

8 Citing Bruen’s footnote 9, the majority observes 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.” Maj. Op. at 46. I agree with the majority that these regimes are not per se constitutional. But I lament that the majority has refused to recognize that Bruen created a “presumption” of lawfulness, rather than a mereindicium or suggestion of lawfulness. The majority’s miserly reading of Bruen’s “presumptively lawful” measures is especially jarring given the majority gets to Part III.C of its opinion, it has already concluded that “California’s ammunition background check regime does not survive scrutiny under the two-step Bruen analysis.” Maj. Op. at 46. So much for the “presumption” of constitutionality.9 Once the majority has found that California’s scheme is ahistorical, it is a short step to conclude that it must not be “presumptively lawful.” Maj. Op. at 46 n.29. The majority’s analysis is backwards and thus flawed from the outset.

B

The majority concludes that “the Supreme Court’s footnote in Bruen sheds little light” on whether California’s law is “presumptively lawful” because California imposes “background checks every time a person seeks to purchase ammunition,” Maj. Op. at 48, rather than every other “year or several years,” id. at 47.

The majority has invented a new criterion for evaluating the lawfulness of a background check regulation—the majority’s admonition that “Bruen’s examples of how shall-issue licensing regimes could be abusive were not exclusive.” Maj. Op. at 49. Under the majority’s reading of Bruen, shall-issue regimes are now presumptively unconstitutional until proven otherwise.

9 The majority distinguishes Bruen by observing that its footnote 9 did not address “ammunition background check regime[s],” Maj. Op. at 49. This is true, but should be irrelevant under the majority’s own logic. By divorcing ammunition acquisition restrictions from firearm acquisition restrictions, the majority has rejected a key premise of its own analysis: that the Second Amendment extends the same protection to both ammunition and firearms. Maj. Op. at 22–23. Nothing in the majority’s analysis tells us why ammunition must be covered by the Second Amendment—but must be treated differently from firearms—and why Bruen’s footnote 9 is, consequently, “meaningfully distinguishable,” Maj Op. at 49.

frequency of the check—and has ignored the two criteria that Bruen actually provided: cost and temporal delay. See Bruen, 591 U.S. at 38 n.9. There is little wonder why. The majority cannot say, with a straight face, that California’s one-dollar fee is “exorbitant.” Nor can it assert, with any credibility, that California’s one-minute wait time is “lengthy.” See id. Instead, the majority’s sole rationale for its new anti-frequency rule is that Bruen only alluded to licensing regimes that permitted individuals to “engage in a course of conduct for a year or several years” rather than for a single transaction. Maj. Op. at 47. According to the majority, Bruen could not possibly have contemplated a licensing regime that operates with such frequency.

But this is a distinction without a difference. The majority attempts to rationalize its novel anti-frequency rule by invoking Bruen’s analogical mode of reasoning: It concludes that California’s law is not “presumptively lawful” because it “is not analogous to the ‘how’ of a shall- issue licensing regime wherein a person receives a license that is valid for a period of years.” Maj Op. at 48. Yet the majority makes no effort to explain the importance of this distinction. Instead, the majority effectively requires the government to concoct “a historical twin” every time that it implements a “presumptively lawful” background check regulation, despite Bruen’s admonition to the contrary, and despite Bruen’s acknowledgment that even a regulation lacking a “dead ringer . . . may be analogous enough to pass constitutional muster.” See Bruen, 597 U.S. at 30, 38 n.9.

And, more troublingly, the majority’s analogy is only half complete. Bruen instructed courts to focus on both “how and why . . . regulations burden a law-abiding citizen’s right to armed self-defense.” Id. at 29 (emphasis added). But the majority never gets past “how.” This is puzzling, since Bruen explained exactly “why” a licensing law should be denied the presumption of lawfulness: for “deny[ing] ordinary citizens their right to public carry.” Id. at 38 n.9 (citing Heller, 554 U.S. at 635). If the majority wishes to apply Bruen’s analogical reasoning faithfully, it must not only identify superficial differences, but, more importantly, also consider whether a background check law is different such that it effectively “prevent[s] ‘law-abiding, responsible citizens’ from exercising their Second Amendment right to public carry.” See id. (quoting Heller, 554 U.S. at 635). The majority has not explained why conducting an inexpensive, almost instantaneous background check necessarily denies “law-abiding, responsible citizens” the right to public carry any more than the licensing laws that it cited to approvingly—some of which impose hundreds of dollars of fees and months of delay.

For example, the majority cites California’s concealed licensing scheme, Maj. Op. at 47 n.31, which is administered by local governments. See Cal. Penal Code § 26220(b). California localities typically charge hundreds of dollars for concealed carry permits. See, e.g., Carry a Concealed Weapon Licensing – CCW, Los Angeles Cnty. Sheriff’s Dep’t, https://lasd.org/ccw/ [https://perma.cc/LNV2-B33C] (last visited June 17, 2025) (“[T]he total initial [Carry Concealed Weapon] license application fee will be $216.”); Fee Schedule, San Diego Sheriff’s Off. License Div., https://www.sdsheriff.gov/home/showdocument?id=9157& t=638803105385767072 [https://perma.cc/3UNX-RDS9] (last visited June 17, 2025) (assessing a $176 fee for a concealed carry permit). The majority also cites regulations from other states that impose substantial delays. See, e.g., Alaska Stat. § 18.65.700(b) (permitting the state to hold a concealed carry license application for up to 30 days); Ariz.

Rev. Stat. § 13-3112(H) (75 days); Idaho Code § 18-3302K (90 days); Mont. Code Ann. § 45-8-321(1) (60 days); Wash. Rev. Code Ann. § 9.41.070(1) (30 days).

The majority’s strained logic punishes governments for making their background check systems more effective and efficient. Under the majority’s anti-frequency rule, the more effectively that a background check or licensing law “prohibit[s] . . . the possession of firearms by felons and the mentally ill,” the less likely that that law will pass constitutional muster. See Heller, 554 U.S. at 626. The majority, which complains that “California residents cannot avoid the background check requirements by taking advantage of internet or out-of-state sales,” apparently believes that background check laws are unconstitutional unless they are flecked with obvious loopholes. Maj. Op. at 27.

The majority’s new rule can only be justified by accepting the premise that undergoing a background check per se—even one that costs one dollar and takes one minute—imposes some kind of ineffable injury that must be minimized at all costs. Yet Heller, far from construing background checks as inherently injurious, or even presumptively suspect, instead christened them as “presumptively lawful.” Heller, 554 U.S. at 627 n.26 (emphasis added).

By the majority’s reasoning, any regulation of sales of ammunition is presumptively unlawful, unless the state can produce an identical historical twin. I doubt that any state will be able to do so, any more than a state will be able to show a strong tradition of state regulation of arms sales when the Second Amendment was adopted. The implications of the majority’s analysis flatly contradict Heller and Bruen.

III

Plaintiffs also assert that California’s ammunition background check scheme violates the Commerce Clause by requiring vendors, including out-of-state vendors, to consummate ammunition transactions face-to-face in California. I would reverse the district court’s judgment on this claim as well.

The United States Constitution grants Congress the power to “regulate Commerce… among the several states[.]” U.S. Const. art. I, § 8, cl. 3. The Supreme Court has held that the Commerce Clause implicitly preempts state regulations that disrupt interstate commerce. See Or. Waste Sys., Inc. v. Dep’t of Env’t Quality, 511 U.S. 93, 98 (1994).

“Two levels of scrutiny exist for analyzing state statutes challenged under the dormant Commerce Clause.” Black Star Farms LLC v. Oliver, 600 F.3d 1225, 1230 (9th Cir. 2010) (citation omitted). First, statutes that “affirmatively discriminate against . . . [interstate] transactions” are subject to “more demanding scrutiny.” Maine v. Taylor, 477 U.S. 131, 138 (1986). In these cases, “the burden falls on the State to demonstrate both that the statute ‘serves a legitimate local purpose,’ and that this purpose could not be served as well by available nondiscriminatory means.” Id. (quotingHughes v. Oklahoma, 441 U.S. 322, 336 (1979)). Alternatively, “statutes that burden interstate transactions only incidentally” are permissible unless the “burdens they impose on interstate trade are ‘clearly excessive in relation to the putative local benefits.’” Id. (quoting Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970)). In either case, it is an “antidiscrimination principle [that] lies at the very core of the [Court’s] dormant Commerce Clause jurisprudence.” Nat’l Pork Producers Council v. Ross, 598 U.S. 356, 369

(2023) (quotation marks and citation omitted); see Flynt v.

Bonta, 131 F.4th 918, 923–24 (9th Cir. 2025).

California’s scheme requires that all ammunition sales be consummated with state-licensed vendors in face-to-face transactions. Cal. Penal Code § 30312(a)–(b). Vendors who lack a physical location may rely, for a fee, on vendors with a physical location for assistance consummating sales face- to-face. Plaintiffs assert that this face-to-face requirement discriminatorily “favor[s] in-state, in-person transactions over in-person transactions with a vendor in another state.” They also assert that “[w]hile a California vendor may sell to a Californian face-to-face, an out-of-state vendor may not[.]”

But Plaintiffs “read too much into too little.” Nat’l Pork Producers, 598 U.S. at 373. California’s face-to-face requirement does not “affirmatively discriminate” against out-of-state transactions: A California ammunition retailer faces the same burden as a Nevada or North Carolina ammunition retailer—Either operate a physical location in California or contract with a business that does. See Taylor, 477 U.S. at 138. This means that California’s face-to-face requirement applies “even-handedly” to both in-state and out-of-state vendors. See Day v. Henry, 129 F.4th 1197, 1205–06 (9th Cir. 2025) (upholding Arizona’s direct shipping restrictions on wine retailers because “[t]here is no clear-cut ‘in-state’ and ‘out-of-state’ divide”); cf. Granholm v. Heald, 544 U.S. 460, 473–76 (2005) (disapproving of Michigan and New York statutes that discriminated between in-state and out-of-state wineries in direct shipment).

Plaintiffs’ argument for discrimination requires conflating “California vendors” with California brick-and- mortar vendors. As California observes, in-state vendors who lack a physical location in California cannot directly sell ammunition to Californians, either. This means that neither a Los Angeles-based vendor nor a New York City- based vendor may conduct a purely online (or telephonic, or mail-order) transaction with a San Francisco-based purchaser.

And Plaintiffs’ assertion that “California’s resident businesses are the only businesses that may sell directly to California consumers,” belies reality: Out-of-state businesses sell ammunition directly to Californians at brick- and-mortar stores in California.10 Nor do Plaintiffs identify any law or regulation that erects a discriminatory barrier that prevents those out-of-state retailers from obtaining licenses to do so. Accordingly, vendors principally located in other states may sell ammunition to Californians “face-to-face” under the same rules that apply to vendors principally located in California. And “setting up a physical storefront in [California] is not a per se burden on out-of-state companies and per se benefit to in-state companies.” Day, 129 F.4th at 1206–07 (quotation marks omitted). There is no discrimination here.

Because California’s face-to-face requirement “regulates even-handedly to effectuate a legitimate local public interest,

10 Consider, for example, Bass Pro Shops, a Missouri-based sporting goods retailer, see Where is Bass Pro Shops Corporate Headquarters Located?, Bass Pro Shops, https://help.basspro.com/company- information-e8cd63ea/where-is-bass-pro-shops-corporate-headquarters- located-d15e9de5 [https://perma.cc/DS9A-AGZH] (last visited June 17, 2025), whose various California stores sell ammunition, see, e.g., FN 5.7 x 28mm Polymer Tip Handgun Ammo, Bass Pro Shops, https://www.basspro.com/p/fn-57-x-28mm-polymer-tip-handgun- ammo [https://perma.cc/sw8p-x5m4] (last visited June 17, 2025) (“In stock at Irvine, CA.”).

and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.” See Pike, 397 U.S. at 142 (citation omitted). Plaintiffs fare no better with this alternative balancing theory under Pike, which does not “depart from the antidiscrimination rule that lies at the very core of [the Court’s] dormant Commerce Clause jurisprudence.” Nat’l Pork Producers, 598 U.S. at 377 (quotation marks and citation omitted).

Plaintiffs concede that “no one denies that keeping arms out of the hands of dangerous felons is a legitimate government interest.” I agree. Still, Plaintiffs argue that the face-to-face requirement imposes a burden that is “clearly excessive in relation” to these benefits by requiring out-of- state businesses to rely on “the unfettered discretion” of “in- state competitors…to condition their access to the California market on paying a King’s ransom.” Plaintiffs ignore the fact that out-of-state vendors may nonetheless sell directly to California customers if they operate a physical location, and that any burden flowing from their choosing to do so, or from their choice to contract with a business that does so, falls equally on in-state and out-of-state businesses.

I would hold that California’s face-to-face requirement does not violate the Commerce Clause.

IV

Finally, Plaintiffs contend that California Penal Code § 30314, which prohibits Californians from bringing out-of- state ammunition into California, is preempted by 18 U.S.C.

§ 926A. I would also reverse the district court’s judgment on this claim. Section 926A provides in relevant part:

Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible . . .

18 U.S.C. § 926A. Congress has made clear that this preemption provision does not “occupy the field”; it applies only if “there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together.” 18 U.S.C. § 927.

Section 926A protects the interstate transportation of firearms and ammunition. However, it only protects the transportation of ammunition between states where the transporter “may lawfully possess and carry” that ammunition. See 18 U.S.C. § 926A. Here, California’s § 30314(a) provides that:

[A] resident of this state shall not bring or transport into this state any ammunition that he or she purchased or otherwise obtained from outside of this state unless he or she first has that ammunition delivered to a licensed ammunition vendor for delivery to that resident pursuant to the procedures set forth in Section 30312.

Cal. Penal Code § 30314(a). Because Californians may not “lawfully possess and carry” ammunition unless that ammunition first passes through a licensed vendor who can perform a face-to-face background check, § 926A does not apply here. Plaintiffs contend that California has taken advantage of §926A’s safe harbor to “regulat[e] the interstate transport of ammunition generally, which is unequivocally protected by § 926A.” But this is largely a retread of Plaintiffs’ Commerce Clause argument.

I would hold that § 30314 is not preempted by § 926A. ***

For the forgoing reasons, I would reverse the judgment of the district court. I respectfully dissent.