The en banc panel has just been drawn in Kim Rhode, et al. v. Rob Bonta, No. 24-542 — and for the Second Amendment community, the composition is almost shocking. Of the eleven judges selected to hear California’s appeal of its ammunition background check law, eight were appointed by Republican presidents and three by Democrats. In the Ninth Circuit, that is not just unusual. It is essentially unheard of on a Second Amendment question.
What California’s Prop 63 Actually Does — and Why It’s an Outlier
California’s Proposition 63, passed in November 2016 and effective July 1, 2019, requires a background check for every single ammunition purchase in the state and bans importing ammo from out of state without routing it through a licensed California dealer. To my knowledge, it is the only law of its kind in the country.
That matters enormously under the Bruen framework. SCOTUS does not like outlier regulations — laws that stand alone, untethered from any broad national tradition. An ammo background check is precisely that kind of one-off, novel restriction. It also functions as what I’d call a poll tax on Second Amendment rights: the $1 fee per transaction is a direct charge on the exercise of a constitutional right.
The Second Amendment’s plain text covers ammunition by necessary implication. The right to keep means the right to possess; the right to bear means the right to carry for self-defense. As the Seventh Circuit recognized in Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011), those rights include a corollary right to train — because a right to self-defense is hollow without proficiency. Training requires ammunition. California’s law burdens all three rights simultaneously.
Two Wins, Then En Banc — The Procedural Record
The Second Amendment side has already won this case twice. Judge Roger Benitez of the Southern District of California granted a permanent injunction, holding Prop 63’s background check scheme unconstitutional. California appealed, and on July 24, 2025, a Ninth Circuit three-judge panel affirmed 2–1. The majority opinion was authored by Judge Sandra S. Ikuta, joined by Judge Bridget S. Bade. Judge Jay S. Bybee — a George W. Bush appointee — dissented, arguing the $1 charge and sub-one-minute delay amounted to no meaningful burden on Second Amendment rights.
California then sought en banc rehearing, which the Ninth Circuit granted on December 1, 2025, vacating the panel opinion. That move was no surprise. The Ninth Circuit has made a habit of en banc-ing away Second Amendment wins in the district courts and three-judge panels. The only surprise here is what happened at the draw.
The 8–3 Panel and What It Actually Means
Eight of the eleven judges drawn were appointed by Republican presidents. Three were appointed by Democrats. One of those eight Republicans — Judge Bybee — already showed his hand by dissenting in the three-judge panel and voting to uphold the California law. So a rough realistic count puts the floor at seven potential votes for the Second Amendment, with the ceiling depending on how solid the remaining Republican appointees turn out to be.
I want to be honest about what this is and isn’t. Republican-appointed does not automatically mean Second Amendment-friendly. There are plenty of “law and order” Republican nominees on the federal bench who are indifferent or hostile to the private right to keep and bear arms, and who consistently defer to government regulation when the government frames it as a safety measure. But even accounting for that reality — even building in the squishy factor — this panel gives us a fighting chance. And a fighting chance in the Ninth Circuit on a Second Amendment case is not something I’m accustomed to saying.
There is also a larger structural point worth understanding. En banc panels in the Ninth Circuit have the authority to overturn prior en banc and panel decisions of the circuit. In theory, this panel could unwind some of the Ninth Circuit’s worst Second Amendment precedents. I don’t expect them to go that far in this case, but the authority exists. And notably, Judge Lawrence VanDyke — one of the court’s strongest Second Amendment jurists — is confirmed to be on the panel.
The DOJ Factor — Harmeet Dhillon in the Building
What makes Rhode v. Bonta even more significant is that the Trump DOJ has entered the case. Harmeet Dhillon’s Civil Rights Division Second Amendment Section has filed an amicus brief arguing that the three-judge panel’s decision should be upheld and that California’s ammunition background check system is unconstitutional. There is even a possibility Dhillon flies to California to argue time herself before the en banc court.
This is what the DOJ’s Second Amendment unit was built for. Having the federal government stand alongside Kim Rhode at the podium in Pasadena on March 25th sends a message that extends well beyond this case.
State Law, SCOTUS, and Why This Case Has Legs
One more structural point I hammer on constantly: SCOTUS is far more willing to strike down state gun laws than federal ones. Heller took down a D.C. ordinance. Bruen killed New York’s carry licensing scheme. Caetano v. Massachusetts, 577 U.S. 411 (2016), vacated the stun gun ban. McDonald v. City of Chicago, 561 U.S. 742 (2010), wiped out Chicago’s handgun ban. Wolford v. Lopez, No. 24-1046 (argued Jan. 20, 2026), targets Hawaii’s carry restrictions. Every one of these is a state or local law.
That is why I have been critical of pushing federal § 922(g) cases like United States v. Rahimi and United States v. Hemani to SCOTUS with bad facts. Congress-enacted laws get more deference. State outliers get much less.
Rhode v. Bonta is a state law, it is an outlier, and it has already lost twice. Now it faces an en banc panel with an 8–3 Republican-appointed majority and the Trump DOJ in its corner. Oral argument is March 25th. I’ll be watching closely — and so should you.
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.