By Josh Richman
Thursday, November 7th, 2013 at 2:35 pm in gun control.
A 2009 law that would’ve required all “handgun ammunition” sales be done face-to-face, rather than online or by mail, is unconstitutionally vague and can’t be enforced, a California appeals court has ruled.
AB 962, authored by then-Assemblyman Kevin de Leon and signed into law by then-Gov. Arnold Schwarzenegger, also would’ve required buyers of such ammunition to show valid ID, which the seller would record and keep for at least five years. Plaintiffs led by former Tehama County Sheriff Clay Parker and represented by the National Rifle Association and California Rifle and Pistol Association sued, and a Fresno County Superior Court judge issued an injunction to prevent the law from taking effect in 2010.
The California Court of Appeal for the Fifth District agreed Wednesday, finding there’s no definition of “handgun ammunition” that’s clear enough for the law to be enforceable.
“In the absence of baseline standards, the classification of interchangeable calibers and cartridges as ‘handgun ammunition’ may be a fluid concept or a moving target, so to speak,” Associate Justice Gene Gomes wrote for himself and Associate Justice Stephen Kane.
“We find no basis from the text of the challenged statutes, their legislative history, the record on appeal, or elsewhere upon which to conclude there is a common understanding or objective meaning of the term ‘handgun ammunition.’ The level of certainty necessary to provide fair notice of the proscribed conduct and adequate standards for compliance with the law is missing. Therefore, the statutory scheme is unconstitutional.
“Because the challenged provisions fail to provide meaningful guidelines or discernable standards, there is a significant risk of arbitrary and discriminatory application by law enforcement officials. The lack of statutory guidance effectively confers discretion upon individual police officers to interpret the law themselves, thus allowing it to be enforced selectively or haphazardly. As such, the statutes do not satisfy the due process requirements under the second prong of the void-for-vagueness doctrine.”
Associate Justice Dennis Cornell dissented, writing that his colleagues’ opinion “does not accord due deference to the Legislature in its attempt to address a serious public safety concern.” He wrote that he would limit the law’s application “to those cartridges that generally are recognized as ‘principally for use’ in handguns. Under this commonsense construction, I would conclude the statutes convey a sufficiently definite warning of the regulated conduct and uphold their constitutionality.”
The Legislature since 2009 has moved toward regulating all ammunition sales, not just handgun ammunition. De Leon, now a state Senator, this year carried SB 53, which would require a background check for all ammunition purchases and licenses for all sellers; the bill will be taken up again in 2014.
And some cities are acting on their own. Sunnyvale voters on Tuesday approved Measure C, one part of which requires that ammunition sellers keep records of buyers’ IDs for two years.
The NRA will sue the city, said attorney Chuck Michel, who represented the plaintiffs against AB 962 and is pleased with Wednesday’s ruling.
“The court recognized the need for clarity in the law, particularly those that regulate constitutional rights,” Michel said in an email. “This is about more than firearm rights – it is about holding lawmakers accountable for enacting laws that people can understand and follow.”
Michel noted Wednesday’s opinion also confirmed which standard of review courts should apply in constitutional vagueness challenges, a larger legal issue unsettled by the courts for years. The ruling said that a law need not be vague in every conceivable application in order to be found unconstitutionally vague on its face, particularly if it regulates constitutionally protected activity.