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By Alan Eisner, Dmitry Gorin, Robert Hill
On March 25, 2026, the Ninth Circuit Court of Appeals sitting en banc heard arguments in Rhode v. Bonta, a challenge to California’s novel point-of-sale ammunition background regime. Enacted as part of a voter initiative which addressed numerous aspects of California gun laws, the challenged provision requires ammunition purchasers to submit to one of four different forms of background checks at the point of sale. Each method involves a fee ranging from $5 to $31 and permits a purchaser only to purchase ammunition for a small window of time, usually less than a day. Accordingly, every time a firearm owner seeks to purchase ammunition, he or she should expect to be subject to a further background check and pay a fee, which in some cases exceeds the purchase price of the ammunition.
The district court which initially enjoined the law and the Ninth Circuit three-judge panel which affirmed that injunction described California’s regime as “unnecessarily complicated,” “onerous and convoluted,” “cumbersome and byzantine,” “extensive and ungainly,” and “first-of-its-kind.” Rhode v. Becerra, 445 F. Supp. 3d 902 (S.D. Cal. 2020); Rhode v. Bonta, 713 F. Supp. 3d 865 (S.D. Cal. 2024); Rhode v. Bonta, 145 F.4th 1090 (9th Cir. 2025).
Of particular concern, the challengers amassed evidence that tens of thousands of would-be purchasers are rejected pursuant to the background checks each year not because they are prohibited persons due to, for example, a prior felony conviction or are underage, but because of clerical issues such as a mismatch in the street address associated with a purchaser or simply because the state database is incomplete. The purchaser then must take it upon themselves to contact the state and address the issues, which can take months. The record below reflected that plaintiffs erroneously denied the ability to purchase ammunition in January 2022 were still unable to do so six months later. The Ninth Circuit upheld the district court’s injunction and agreed to hear the case en banc. Twenty-six states and the federal government have filed amicus briefs supporting the challengers.
Under the Supreme Court’s landmark decision in New York State Rifle & Pistol Ass’n Inc. (NYSRPA) v. Bruen, 597 U.S. 1 (2022), the court analyzes a challenged firearm restriction using a two-step framework. At step one, a reviewing court considers whether “the Second Amendment’s plain text covers an individual’s conduct.” Id. at 24. If it does, “the Constitution presumptively protects that conduct,” and the court proceeds to step two, where “[t]he government must . . . justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” Ibid. The government therefore bears the burden of identifying a relevant historical analogue to the challenged provision.
The parties in Rhode debate whether an ammunition background check requirement “meaningfully” constrains the right to bear arms. California insists that its regulation imposes only a de minimis burden on the Second Amendment because the fees are low and the wait times are generally reasonable. Under Ninth Circuit precedent it is unclear whether how “meaningful” a restriction is bears on Step One or Step Two of the Bruen analysis. The panel below held that a restriction on the right to acquire ammunition is a meaningful constraint on arms-bearing conduct, relying on the Supreme Court’s holding in Heller that the Second Amendment guarantees the right to an “operable” firearm “for the purpose of immediate self-defense.” District of Columbia v. Heller, 554 U.S. 570, 635 (2008). To operate a firearm, one must obviously possess ammunition. To possess ammunition, the argument goes, one must first acquire it and therefore a restriction on the ability to acquire ammunition is effectively a restriction on the right to bear arms.
It appears likely that the Ninth Circuit will ultimately affirm the conclusion that the background check regime implicates arms bearing conduct, leading to the Step Two inquiry. At Step Two, a reviewing court must consider both “[w]hy and how the [modern] regulation burdens the right,” to keep and bear arms in assessing whether a proposed historical analogue is relevantly similar to the challenged provision. United States v. Rahimi, 602 U.S. 680, 692 (2024).
California identifies four potential historical analogues: “[1] loyalty oath requirements and loyalist disarmament provisions at the founding and during Reconstruction, [2] 19th century concealed carry permitting requirements, [3] surety laws imposed at the founding on persons who presented a danger to the community, and [4] licensing and recordkeeping requirements imposed on vendors of gunpowder and firearms.” Rhode, 145 F.4th at 1109. California argues that all these historical regulations addressed the same why as its background check regime; to ensure that prohibited persons do not acquire firearms and deter dangerous individuals from acquiring them. The federal government as amicus argues in its brief that California’s motive in enacting the background checks is to limit the exercise of Second Amendment rights, rendering the regime a per se constitutional violation because of its improper purpose.
California likely has a more difficult argument when defending how its regulation burdens the Second Amendment right analogously to historical regulations. First, none of the proposed analogues directly regulate a private citizen’s ability to purchase ammunition. But even as to the regulation of firearms themselves, the analogues operated differently. The loyalty oath requirement, for instance, could be satisfied by a colonist swearing allegiance to the new government a single time, not at every purchase. The surety laws required a judicial determination of dangerousness prior to disarmament and therefore did not apply generally to every member of the public. The licensing requirements burdened gun sellers, not purchasers.
Perhaps sensing that especially at Step Two, the challengers have a strong case, California attempts to sidestep the Bruen analysis by stressing that Heller explicitly blessed background checks as a form of long-standing historically-rooted regulation of firearm ownership. Background checks have been described by the Supreme Court as presumptively lawful. At oral argument, the challengers devoted a substantial amount of time to distinguishing the long-standing background checks common to firearm purchases from California’s point-of-sale ammunition checks. The burden to the purchaser in submitting to a background check once when purchasing a firearm, the argument goes, is simply not analogous to submitting to one each and every time the firearm needs to be reloaded with new ammunition.
Though it is always dangerous to make predictions based on oral argument, the en banc panel appeared sharply divided on both the correct way to apply the Bruen framework and the ultimate constitutionality of California’s background check regime. Some of the court appeared persuaded that background checks as a category are always, or almost always, lawful regardless of the burden they impose on the ability to acquire firearms or ammunition while others were clearly struck by the novelty of California’s approach in regulating firearms conduct through point-of-sale ammunition transactions rather than gun-purchase restrictions like licensing, background checks, or cooling-off periods. Ultimately, California’s biggest challenge may be the record evidence relied on by the district court which included proof that substantial numbers of denials for purchase were erroneous and due to no fault of the purchaser, but to failures or inefficiencies in the state’s databases and processes.
Given the interest of the federal government and the substantial number of amici on both sides of the case, it is safe to assume whichever party does not prevail will seek the input of the Supreme Court. The case is Rhode v. Bonta, Ninth Circuit No. 24-542.
Alan Eisner, Dmitry Gorin, Robert Hill. Eisner Gorin LLP is an elite Los Angeles-based criminal defense firm specializing in serious state and federal crimes including homicide, fraud, public corruption, white-collar crime, sex crimes, firearms offenses, etc. With over 50 years of combined experience, the firm is known for its tenacious advocacy, former prosecutor expertise, creative strategies, and a high success rate in trial.
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