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Empty Thinking


by C.D. Michel and Christopher Zealand

California adopts a muddled slew of restrictions on “handgun” ammo, prompting some companies to stop selling ammunition altogether in the Golden State.

American gun owners have become accustomed to politicians and anti-gun organizations trying to make it more difficult for them to purchase firearms. But the more recent trend of trying to curtail our Right to Keep and Bear Arms by banning the ammunition shot with those firearms is not on many gun owners’ radar—yet.

We’ve said it before, but as goes California, often goes the rest of the nation. And California is currently the hotbed for a number of schemes to ban ammunition.

On Oct. 11, 2009, Gov. Arnold Schwarzenegger signed California Assembly Bill 962 into law. While the thinking behind A.B. 962 is by no means clear, the alleged motive is to deter individuals prohibited from possessing firearms or ammunition from buying ammunition. But one dubious result of the confusing law has been to hurt law-abiding ammunition buyers by forcing several popular mail-order ammunition supply companies, including Cheaper Than Dirt, Midwayusa and Natchez, to stop selling any ammunition in the state.

The new law regulates the “retail” sale of “handgun ammunition,” similar to what the federal Gun Control Act of 1968 did for the retail sale of firearms. A.B. 962 limits retail handgun ammunition sales to face-to-face transactions and requires handgun ammunition “vendors” to keep point-of-sale records of handgun ammunition transactions, including the thumbprints of purchasers, available for inspection at the request of law enforcement authorities.

The law applies to all “vendors” of covered ammunition, which include “any person … engaged in the retail sale of any handgun ammunition.” This definition is broad enough even to apply to informal sales between family members, friends and acquaintances.

Commercial sellers of ammunition are not currently required to be licensed as such under California or federal law, meaning that authorities would not necessarily know who is selling ammunition and, consequently, where the relevant records are kept—unless there are still more laws passed.

For now, the state law applies only to “handgun ammunition,” which is circularly defined as “ammunition principally for use in [handguns], notwithstanding that the ammunition may also be used in some rifles.” The “principally for use” standard, however, is of no help in the case of ammunition that is commonly used in both handguns and long guns, such as .22 rimfire and 9 mm. It also does not specify whether the test is meant to apply to the caliber generally, or to the intended use of a particular buyer. And the standard shifts and the definition fluctuates with changing market preferences. Currently, NRA is funding a lawsuit (Sheriff Clay Parker v. State of California)—brought by the Tehama County sheriff and others—challenging this definition of handgun ammunition as unconstitutionally vague.

Faced with frustrating limits on the success and expansion of its firearm regulation agenda, the gun-ban lobby, led by the San Francisco lawyers group Legal Community Against Violence (LCAV)—which has become the gun-ban lobby’s de facto law firm—has been trying for years to dramatically step up ammunition regulations in California and, ultimately, nationwide. The big firm lawyers who work pro bono for LCAV see ammunition regulation as potentially legally distinguishable from firearm laws, and perhaps even as a way to sneak around the Supreme Court’s recent Second Amendment cases. A.B. 962 was their biggest accomplishment so far.

As word of A.B. 962′s passage spread, NRA’s grassroots response was tremendous. An NRA-sponsored bill to repeal the law was introduced and multiple lawsuits were filed. In addition to the Parker case, NRA is helping to fund a challenge to the law on federal preemption grounds (Owner-Operator Independent Drivers Association et al. v. California).

Absent court intervention, the most onerous provisions of A.B. 962 kick in on Feb. 1, 2012. But the ammunition banners aren’t finished there. If they have their way, the new state laws will be complemented by a package of local ordinances that will make getting ammunition much more difficult, and much more expensive, for everyone involved in the process.

The process leading up to passage of A.B. 962 was an interesting one indeed, since other ammunition regulations in the state had already proven completely ineffective.

Pasadena’s Failed Experiment
In 1997, the city of Pasadena reviewed its three-year-old ammunition sales registration ordinance and found that it didn’t work. The record-keeping requirements were onerous for ammunition sellers, police weren’t using the records and the ordinance did not deter black-market sales.

Since adoption of the ordinance, gun violence had actually gone up. The police department confirmed that the ammunition sales registration ordinance was just a distraction. The records never helped police solve a single crime, so Pasadena repealed the ordinance.

The Los Angeles Experience
Undaunted by the failed Pasadena experiment, the city of Los Angeles adopted a similar ammunition sales registration ordinance in 2001. It has likewise accomplished nothing except diverting scarce police resources.

During debate on A.B. 962, proponents of the measure pointed to a 2006 study that examined records kept under the Los Angeles ordinance and found that prohibited possessors acquired some 10,050 rounds of ammunition from licensed firearm dealers in Los Angeles during the two-month study period. (“The Criminal Purchase of Firearm Ammunition,” G.E. Tita, A.A. Braga, G. Ridgeway and G.L. Pierce, Injury Prevention, October 2006.) The study, however, provides a curious basis for determining that a similar law should be adopted statewide. It demonstrates that a significant number of prohibited possessors ignored whatever risks of exposure might be posed by the ordinance and continued to purchase ammunition anyway.

One obvious reason for this was that local authorities did not have the resources to cross-check the paper records kept by the ammunition vendors with lists of known prohibited persons. Indeed, the study found evidence of illegal activity only by funding an extraordinary effort that drew on the resources of the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) and appears to have far exceeded anything that was even remotely possible under the Los Angeles Police Department’s day-to-day operations budget.

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