by Samantha Foster
On Friday, in a decision that exhilarated gun rights supporters and shocked gun control activists, a three-judge panel of the 9th U.S. Circuit Court of Appeals struck down California’s ban on ammunition magazines with more than ten bullets.
The 2-1 decision in Duncan v. Becerra upheld the 2017 ruling of U.S. District Judge Roger Benitez, who blocked the law that banned magazines holding more than ten bullets from gun owners, as CBS San Francisco noted.
Appellate Judge Kenneth Lee, writing for the majority, stated:
In the wake of heart-wrenching and highly publicized mass shootings, the state of California barred its citizens from owning so-called “large capacity magazines” (LCMs) that hold more than ten rounds of ammunition. But even well-intentioned laws must pass constitutional muster. California’s near-categorical ban of LCMs strikes at the core of the Second Amendment — the right to armed self-defense. Armed self-defense is a fundamental right rooted in tradition and the text of the Second Amendment. Indeed, from pre-colonial times to today’s post-modern era, the right to defend hearth and home has remained paramount.
California’s law imposes a substantial burden on this right to self-defense. The ban makes it criminal for Californians to own magazines that come standard in Glocks, Berettas, and other handguns that are staples of self-defense. Its scope is so sweeping that half of all magazines in America are now unlawful to own in California. Even law-abiding citizens, regardless of their training and track record, must alter or turn over to the state any LCMs that they may have legally owned for years — or face up to a year in jail.
The ruling explained, “The Ninth Circuit employs a two-prong inquiry to determine whether firearm regulations violate the Second Amendment: (1) whether the law burdens conduct protected by the Second Amendment; and (2) if so, what level of scrutiny to apply to the regulation.”
The court then delineated further:
The panel held that under the first prong of the test, Cal. Penal Code § 32310 burdened protected conduct. First, the panel held that firearm magazines are protected arms under the Second Amendment. Second, the panel held that LCMs are commonly owned and typically used for lawful purposes, and are not “unusual arms” that would fall outside the scope of the Second Amendment. Third, the panel held that LCM prohibitions are not longstanding regulations and do not enjoy a presumption of lawfulness. Fourth, the panel held that there was no persuasive historical evidence in the record showing LCM possession fell outside the ambit of Second Amendment protection.
Proceeding to prong two of the inquiry, the panel held that strict scrutiny was the appropriate standard to apply. First, the panel held that Cal. Penal Code § 32310 struck at the core right of law-abiding citizens to self-defend by banning LCM possession within the home. Second, the panel held that Section 32310’s near-categorical ban of LCMs substantially burdened core Second Amendment rights. Third, the panel held that decisions in other circuits were distinguishable. Fourth, the panel held that this circuit’s decision in Fyock v. City of Sunnyvale, 779 F.3d 991 (9th Cir. 2015), did not obligate the panel to apply intermediate scrutiny.
California Attorney General Xavier Becerra’s office responded to the ruling by saying, “Until further proceedings in the courts, the stay on the injunction issued by the district court remains in place. The Attorney General remains committed to using every tool possible to defend California’s gun safety laws and keep our communities safe.”
California Rifle & Pistol Association attorney Chuck Michel celebrated the decision as “a huge victory” for gun owners “and the right to choose to own a firearm to defend your family.”
The ruling affects Western states under the jurisdiction of the 9th Circuit, but Michel pointed out that the decision could influence the Supreme Court, asserting, “The Supreme Court seems inclined to do away with the complicated subjective tests that many courts have wrongly applied in Second Amendment cases, in favor of a clearer, more objective ‘originalist’ approach that considers the text, history and tradition of a law to determine what infringements might be tolerated.”
Eric Tirschwell, managing director for Everytown Law, warned, “We expect an en banc panel will rehear the case and correct this erroneous, dangerous, and out-of-step decision.”
Good luck with that! I put the odds of a reversal in the Supreme Court around 0.0%.