For the first time in my living memory, the Trump-Bondi Department of Justice has filed a brief in the Ninth Circuit siding with Second Amendment claimants in Rhode v. Bonta, No. 24-542 (9th Cir. 2025) — the en banc challenge to California’s point-of-sale ammunition background check regime. The district court struck down this law. A three-judge panel affirmed. Now the full en banc court is taking another look, and the federal DOJ has walked in and told the Ninth Circuit: California got this wrong, the panel got it right, and here is exactly why.
California’s Ammunition Law Is a First-of-Its-Kind Outlier
The DOJ brief opens by cataloguing what every court touching this case has already noticed. California’s regime is, in the brief’s own words, “unnecessarily complicated,” “onerous and convoluted,” “cumbersome and extensive,” and “ungainly” — a “first of its kind” law because no other state in American history has required a point-of-sale background check before every single ammunition purchase. The law offers four different check methods, each carrying a fee ranging from $5 to $31, each involving its own unpredictable delays measured in minutes to days, and each being single-use only. The most common method — the “standard check” — clears a buyer for an 18-hour window only. And at the end of all that friction, only a fraction of a fraction of applicants turn out to be on California’s Armed Prohibited Persons list.
That framing is deliberate. Under the Bruen text-and-history framework, New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), the government must demonstrate a well-rooted historical tradition of analogous regulation. Hammering home that this law is novel and California is a lone outlier jurisdiction is precisely how you show that tradition does not exist. The Supreme Court does not smile on outlier laws.
The Right to Acquire Ammunition Is Covered by the Second Amendment’s Plain Text
Here is where the DOJ brief does something critically important for the long-term Second Amendment project: it argues clearly that acquiring ammunition is conduct covered by the plain text of the Second Amendment. Step one of the Bruen framework asks simply whether the text covers the individual’s conduct. The DOJ’s answer:
“The right to acquire ammunition is part and parcel of the right to bear arms. As Bruen explained, the right to bear arms refers to the right to wield a firearm for the purpose of being armed and ready for offensive or defensive action. In other words, the Second Amendment does not protect the right to carry a firearm merely as an ornament. It safeguards the right to an operable firearm for the purpose of immediate self-defense and that requires ammunition.”
The brief goes further: “No axiom is more clearly established in law or reason than that the general power to do a thing includes every particular power necessary for doing it.” Without bullets, the right to bear arms is meaningless. Step one of Bruen is, as the DOJ puts it, “straightforward.”
I have been hammering this point for years, and I am glad to see the DOJ hammer it here. Why does winning the right-to-acquire-ammunition argument matter beyond this one case? Because once courts establish that acquiring arms falls within the plain text, the next link in the chain is the right to make your own arms — the ghost gun fight. We cannot win that argument downstream until we win this one upstream.
The “Why” of California’s Law Dooms It
Once the DOJ establishes that California’s law implicates the Second Amendment’s text, the burden shifts to California to produce a well-established historical tradition supporting the regime. The DOJ argues California cannot clear that bar — and the reason why is damning.
The brief makes the point that courts analyzing modern laws must look at the purpose behind the regulation and match it to the purpose of any putative historical analog. California’s ammunition background check law was not enacted to serve public safety or any legitimate regulatory objective. Its purpose, the DOJ argues, is straightforwardly to make it difficult for law-abiding citizens to exercise their Second Amendment rights — to eviscerate the right rather than regulate around its edges.
There is no historical tradition of firearms regulation built on that motive. The brief notes that the only historical analogues in American law where regulations were deliberately designed to prevent people from acquiring firearms were the post-Civil War Black Codes — laws crafted specifically to disarm freed African Americans. That is a constitutionally odious history, and the DOJ is right to invoke it. It underscores that purposeful disarmament of rights-holders has never been a valid regulatory tradition.
What This Tells Us About the DOJ’s Broader Strategy
My read on what Pam Bondi, Harmeet Dhillon, and the Trump DOJ are doing here is this: they are laser-focused on knocking out rogue outlier state gun laws — California, New Jersey, Illinois, Maryland, New York, Hawaii — while treading more carefully around federal statutes. I suspect the DOJ believes it is a more tractable ask to persuade the middle of the Supreme Court — Justice Kavanaugh and Chief Justice Roberts — to strike down state outlier laws than to invalidate a federal congressional statute. The former is something the Court has done repeatedly; the latter is a heavier lift. You can agree or disagree with that calculus, but the logic is coherent.
Can we trust an en banc Ninth Circuit to get this right on its own? Probably not. But having the federal DOJ walk into that courtroom and make every correct Bruen argument — novelty, outlier status, text coverage, purpose mismatch, Black Code analogy — makes it considerably harder for the en banc court to rule against the Second Amendment without writing an opinion that will not survive Supreme Court review.
En banc oral arguments in Rhode v. Bonta are set for the week of March 23, 2026. Watch this one closely.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.