Case Information: Rhode v. Becerra, No. 20-55437 (9th Cir. brief filed June 19, 2020).

At Issue: In 2016, California voters approved Proposition 63, a ballot measure that, among other things, required in-person sales and background checks for ammunition. As in most states, ammunition in California was previously unregulated and could be ordered in mass quantities from the internet, no questions asked. In 2018, opponents of Prop. 63 filed a lawsuit claiming that the ammunition background checks law violates the Second Amendment and the Dormant Commerce Clause. The district court agreed with the challengers and issued a preliminary injunction, blocking the law. The case is now on appeal before the Ninth Circuit, which has stayed the district court’s injunction, allowing ammunition background checks to continue in California.

Giffords Law Center’s Brief: Though we disagree with the district court’s Second Amendment analysis, our brief focuses on the Dormant Commerce Clause. The US Constitution’s Commerce Clause contains a “dormant” corollary that bars states from enacting laws that impede interstate commerce by discriminating against out-of-state businesses. Our brief argues that the district court applied the incorrect legal standard for deciding whether an ammunition background check law unconstitutionally discriminates against interstate commerce. First, we point out that California’s law sets the same requirements for in-state and out-of-state online ammunition retailers. Because the requirements apply to both in-state and out-of-state businesses, the law does not discriminate against out of state businesses on its face. Then, we argue that plaintiffs also failed to show that the law discriminates in effect, including because they presented no evidence that out-of-state online sales were disadvantaged over in-state sales originating online. Finally, our brief explains that if the district court’s illogical analysis of the Dormant Commerce Clause were applied universally, every long-standing law requiring that transactions of regulated items be completed face to face (eg. alcohol, firearm, and cigarette sales) could be considered unconstitutional.

Read the full text of our amicus brief here.