A coalition of 18 attorneys general are asking the Ninth Circuit to take another look at a recent opinion by the court that determined that California’s ban on the possession or sale of so-called large capacity magazines violates the Second Amendment rights of residents.
Washington, D.C. Attorney General Karl Racine, along with the AGs of Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington, argue that both U.S. District Judge Roger Benitez and a three judge panel on the Ninth Circuit Court of Appeals erred in determining that California’s magazine ban is unconstitutional. Instead, they claim that the ban is simply “a common-sense reform” put in place by a number of states in order to “reduce the number of injuries and deaths resulting from the gun violence that plagues our nation.”
The request for an en banc review of the decision in Duncan v. Becerra, as the case is known, was first made by California Attorney General Xavier Becerra back on August 28th, and I’d say it’s a near certainty that the Ninth Circuit will grant the request. That doesn’t mean, however, that the appellate court will reverse the decision of Judge Benitez and the three-judge panel of Ninth Circuit judges. Nor does it mean that the arguments of the anti-gun attorneys general have much merit.
As Judge Kenneth Lee noted in the Ninth Circuit’s opinion in Duncan v. Becerra, states have a legitimate interest in protecting the public, but that doesn’t mean that legislators can impose whatever restrictions they like in the name of public safety. “Even well intentioned laws must pass constitutional muster,” Lee opined, and California’s ban on commonly owned magazines fails that test.
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 state of California has latitude in enacting laws to curb the scourge of gun violence, and has done so by imposing waiting periods and many other limitations. But the Second Amendment limits the state’s ability to second guess a citizen’s choice of arms if it imposes a substantial burden on her right to self-defense.
Many Californians may find solace in the security of a handgun equipped with an LCM: those who live in rural areas where the local sheriff may be miles away, law-abiding citizens trapped in high-crime areas, communities that distrust or depend less on law enforcement, and many more who rely on their firearms to protect themselves and their families. California’s almost blanket ban on LCMs goes too far in substantially burdening the people’s right to self-defense.
The brief by the anti-gun AGs basically amounts to “nuh-uh.” The AGs claim that the decisions out of the Ninth Circuit “give short shrift to states’ ability to enact reasonable public safety regulations,” ignoring the fact that the courts have declared that California’s ban on magazines that can accept more than ten rounds simply isn’t reasonable. As the Supreme Court has made clear in both the Heller and Caetano cases, the Second Amendment applies to arms that are in common use for a variety of lawful purposes.
That’s certainly the case with so-called large capacity magazines, which, as Judge Lee noted, comprise more than half of all magazines in the country. The fact that criminals also use these same magazines in the commission of violent crime doesn’t negate their usefulness for legal gun owners, nor does the criminal misuse of firearms or magazines give states the ability to pretend the Second Amendment doesn’t exist.
Based on the logic by Racine and his fellow attorneys general, any gun control law that’s approved by lawmakers should be considered “reasonable” as long as they can claim some sort of public safety benefit, regardless of the impact to legal gun owners. It’s a bizarre interpretation of the Constitution that, if adopted by the courts, would render the Second Amendment a dead letter and a hollow right.
The Ninth Circuit may choose to rehear the Duncan case, but it should absolutely reject the legal arguments of the state of California and its anti-gun allies and uphold the two decisions that have both found the constitutional flaws in California’s magazine ban.