Dissenting Judge in Ninth Circuit Ammo Ban Case Almost Starts to Get It

Dissents are often important in various legal cases, not because they 
carry any actual force, but because they frame the potential problems with 
the majority's opinion.

That's fair enough, though far too often, people cite them as if they're 
authoritative, and judge from what one particular Supreme Court justice 
keeps writing, that's probably not a given.

In the Ninth Circuit, the majority found that California's law requiring 
background checks for ammunition was unconstitutional. Cam covered that on 
Thursday, but one thing I saw that he didn't talk about was the dissent.

Judge Jay Bybee wasn't in agreement with his colleagues, but his dissent 
almost suggested his understanding was dawning.

“Because none of the historical analogues proffered by California is 
within the relevant time frame, or is relevantly similar to California’s 
ammunition background check regime, California’s ammunition background 
check regime does not survive scrutiny under the two-step Bruen analysis,” 
Ikuta wrote.

In a fiery dissent, Judge Jay Bybee said the decision failed to correctly 
apply the Bruen test, and that using the logic of the decision, any 
firearms regulation could be interpreted as a violation of the Second 
Amendment.

“It is difficult to imagine a regulation on the acquisition of ammunition 
or firearms that would not ‘meaningfully constrain’ the right to keep and 
bear arms under the majority’s new general applicability standard,” Bybee 
wrote in the dissent.

That's kind of the point, though, isn't it?

While there are some historic parallels that are hard to ignore, such as 
the laws prohibiting the carrying of a firearm while drunk, others are 
much more of a reach. California tried such a reach to justify the 
ammunition restrictions, and the Ninth Circuit wasn't buying it.

Bybee is upset because he'd prefer history, text, and tradition be mangled 
so as to justify any restriction--the exact opposite of what he accused 
the majority of trying to do--and he clearly sees the issue. He just 
thinks it's a bad thing.

Yet let's u understand that the restrictions don't actually inhibit 
criminals.

For one thing, ammunition isn't serialized. There was never any way to 
enforce the law and arrest criminals who simply hadn't been caught when 
they bought ammo for their buddies. It simply created a burden that 
negatively impacted lawful ammunition purchasers and would thus discourage 
lawful gun ownership.

It was never practical.

But from a post-Bruen constitutionality standpoint, I can't imagine any 
analog that was remotely close to this law existing. There might be 
storage requirements, because a lot of gunpowder stored improperly was 
unsafe for everyone, but there weren't restrictions on buying it or even 
how much you can have, at least that I've seen anywhere.

Bybee almost seems to understand that, and his issue is that they didn't 
reach far enough or something. It's inane, but then again, he wants the 
law to be constitutional. Inanity seems to be the norm here.

Unfortunately, it's not, and the Ninth Circuit three-judge panel smacked 
the state down for this terrible regulation. Bybee can be disappointed, 
but there's a reason he's in the minority. It's because the other two 
seemed to get what he saw as the problem with their reasoning.

https://bearingarms.com/tomknighton/2025/07/26/dissenting-judge-in-ninth-
circuit-ammo-ban-case-almost-starts-to-get-it-n1229388