Not Tired of Winning Yet

 Rhode v. Bonta (9th Cir. 2025)

By subjecting Californians to background checks for all ammunition purchases, California’s ammunition background check regime infringes on the fundamental right to keep and bear arms.  Because California’s ammunition background check regime violates the Second Amendment, the district court did not abuse its discretion in granting a permanent injunction.

I worked on this case.  While I was not cited, I see my fingerprints.  On p. 32, in n. 24:

As a preliminary matter, California argues that during Reconstruction, Tennessee “restrict[ed] . . . gun-access generally to those who took” a prescribed form of loyalty oath.  This statement is taken from the declaration of Michael Vorenberg, an expert witness on the history of the U.S. Civil War and Reconstruction (“Vorenberg Declaration”).  The declaration based its statement about loyalty oaths in Tennessee on a single secondary source, Ben H. Severance, Tennessee’s Radical Army: The State Guard and Its Role in Reconstruction, 1867-1869, 35–36 (2005).  The cited pages in this secondary source discuss how loyalty oaths were required as a condition of joining a militia, but do not assert that loyalty oaths were generally used to determine who could keep and bear arms.  Id.  Therefore, the Vorenberg Declaration’s assertion about Tennessee’s loyalty oaths is not supported by a citation to any secondary or primary source. 

My rebuttal of Vorenberg's claims:

  I reviewed all four sources in Vorenberg’s footnote for this claim. On the alleged loss of civil rights including firearm possession Vorenberg cites Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (Lawrence: University Press of Kansas, 2023), 111-30; Jonathan Truman Dorris, Pardon and Amnesty under Lincoln and Johnson: The Restoration of the Confederates to Their Rights and Privileges, 1861-1898 (Chapel Hill: University of North Carolina Press, 1953), 319-25. On firearms possession as a civil right included in the Fourteenth Amendment, he cites Nicholas J. Johnson, David B. Kopel, George A. Mocsary, E. Gregory Wallace, and Donald Kilmer, Firearms Law and the Second Amendment: Regulation, Rights, and Policy (3rd ed., New York: Wolters Kluwer, 2022), 465-71.  None of these sources support even slightly, “the congressional debates on the clause reveal that rights beyond office-holding were to be restricted. The disloyal were to be denied civil rights (which would necessarily include rights of firearms possession)…”  The discussion in Dorris’ book discusses civil rights in the same paragraph as holding public office.  There is no discussion of firearms possession; this is a surprising error considering Vorenberg’s supposed expertise in this period.  Vorenberg’s parenthetical reference appears to be his interpolation of firearms possession as a civil right. 

If this victory for ammunition purchase seems small, remember what it says to California: you restrict firearms purchases for decades and you still need to restrict ammunition because the criminals are still getting guns in which to fire that ammunition. Like gangs cannot drive out of state to buy ammunition.  "But they are breaking the ammunition background check law!"  Yes, along with laws against murder, rape, robbery, etc.  Prior restraint does not work on criminals, only honest people.  You could search every car crossing the state line.  You already do agricultural inspections.  Just broaden it to vehicle and cavity searches.