New York gun owners will continue to be subjected to the state’s background check requirement on all sales of ammunition, at least for the time being, after the Second Circuit denied a preliminary injunction on Wednesday, ruling that the plaintiffs haven’t demonstrated that the law imposes a “meaningful constraint” on the right to keep and bear arms.
That decision is contrary to the Ninth Circuit Court of Appeals, which has ruled that California’s substantially similar ammo background checks are a meaningful constraint. In today’s opinion, the Second Circuit tried its best to differentiate between the two laws.
For example, according to the Rhode majority, California’s regime required customers “to pay for” the background check and may have required Californians to “purchase ammunition during a specified period of time—e.g., 18 hours—after passing a background check.” By contrast, the New York regime on its face does not require the customer to pay a dime (indeed, the decision to pass the processing fee onto the customer is made solely by theindividual retailers), and there is no block of time in which the customer must purchase the ammunition once the background check clears, which can be“immediate[].
Those seem like pretty small differences to me, especially since the cost of the ammo background check is inevitably going to fall on the purchaser, whether or not it’s baked into the price of ammunition or charged separately when someone is buying ammo. And to be fair, the Second Circuit also found fault with the Ninth Circuit’s decision, arguing that the “only way in which the Rhode majority could be understood to be faithfully applying the facial challenge standard is if they believed that any delay or fee, however minimal, suffices to constitute a meaningful constraint, so long as it applies to all transactions statewide. But that conclusion, as detailed above, is flatly contradicted by our Circuit’s precedents, our sister courts’ precedents, and, indeed, the Ninth Circuit’s own precedents.”
I’m not going to get into the weeds on the Rhode decision, but I’ll just note that the Second Circuit doesn’t seem to have much of a problem with any of New York’s gun control laws, save for a few scant provisions of the deceptively named Concealed Carry Improvement Act like the requirement that concealed carry applicants submit a list of their social media accounts to licensing authorities and New York’s version of the “vampire rule” prohibiting concealed carry on all private property unless signage to the contrary is posted.
So in that respect, it’s not surprising that the Second Circuit denied the injunction regarding the ammunition background checks. Even if the plaintiffs had been able to demonstrate that the widespread delays and false denials that took place after the law first went into effect in the fall of 2023 have continued ever since, I suspect the appellate court would still have denied injunctive relief to the plaintiffs on the grounds that these delays weren’t maliciously imposed on ammunition purchasers; just an unfortunate bug in a system.
Still, it would be helpful for the plaintiffs to develop a record showing ongoing problems with the ammunition background check scheme if they’re going to continue litigating this case… at least if they want to have a fighting chance of winning. The existence of an ammo background check requirement alone isn’t likely to be ruled unconstitutional, but if the plaintiffs can adequately demonstrate how the law is harming New York gun owners, as the plaintiffs in Rhode were able to prove with respect to California gun owners, then maybe the district court will decide in their favor when a final decision is rendered.
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