The ongoing coronavirus pandemic may have forced courts to limit some non-emergency proceedings around the country, but the 9th Circuit moved ahead with oral arguments in a critically important case for Second Amendment supporters on Thursday. Oral arguments in Duncan v Becerra, a chase challenging the constitutionality of California’s ban on magazines that can hold more than ten rounds of ammunition, were held Thursday morning.
The arguments took place via video conference, and the session is available to watch on YouTube. In fact, if you have an hour or so over the weekend, I highly recommend watching the entire thing.
At issue is California’s law, which not only bans the future purchase of magazines that can accept more than ten rounds, but requires gun owners who own these magazines to destroy them, turn them into police, or permanently modify them so that cannot accept more than ten rounds of ammunition.
U.S. District Judge Robert Benitez ruled in 2019 that the law violates the Second Amendment rights of California residents, in a wonderfully written opinion that pulls no punches.
All Californians, like all citizens of the United States, have a fundamental Constitutional right to keep and bear common and dangerous arms. The nation’s Founders used arms for self-protection, for the common defense, for hunting food, and as a check against tyranny.
Today, self-protection is most important. In the future, the common defense may once again be most important. Constitutional rights stand through time holding fast through the ebb and flow of current controversy. Needing a solution to a current law enforcement difficulty cannot be justification for ignoring the Bill of Rights as bad policy. Bad political ideas cannot be stopped by criminalizing bad political speech. Crime waves cannot be broken with warrantless searches and unreasonable seizures. Neither can the government response to a few mad men with guns and ammunition be a law that turns millions of responsible, law-abiding people trying to protect themselves into criminals. Yet, this is the effect of California’s large-capacity magazine law.
California Attorney General Xavier Becerra appealed Benitez’s decision to the 9th Circuit, and on Thursday a three-judge panel asked some pointed questions of the attorney from Becerra’s office who was arguing the state’s side, including why the state believes that intermediate scrutiny should apply, when “in effect, any normal citizen with these weapons [“large capacity” magazines] can no longer use them to protect themselves at home.” As Judge Consuelo Callahan said, “This seems to be quite a severe burden on the core Second Amendment right.” Why then, she asked, shouldn’t strict scrutiny, or the highest standard of judicial review, apply to this law?
The state’s response from attorney John Darrow Echeveria was that there are no guns that require magazines with a capacity of more than ten rounds in order to operate, which misses the point completely. Magazines are arms, and as Judge Benitez argued in his original opinion, there will be times when someone may need a larger magazine capacity to protect themselves. There may also come a day when those magazines may have to be put in service as a check against tyranny. Whether or not firearms can operate with smaller magazines is immaterial. It’s the magazines themselves that are the issue before the court.
Judges in Thursday’s hearing seemed amenable to that argument, pointing out that there’s no guarantee someone using a firearm in self-defense will face a single burglar, or a single firearm. It’s quite possible that a homeowner protecting herself and her family would need more than ten rounds to do so.
Interestingly, Echeveria conceded that there is likely a point at which magazine restrictions would violate the Constitution, but his argument was that the ten round limit is reasonable, because, well, reasons. If the limit was to one round, he admitted, it “might” violate the Second Amendment, but a ten round limit is okay, even though it turns millions of commonly-owned magazines into illicit items, and the owners of those magazines into criminals.
Attorney Erin Murphy of Kirkland & Ellis, representing the plaintiffs in the case, also received some tough questions from judges, including a very interesting question that may indicate where the judges currently see the case. Under 9th Circuit rules, judges are required to consider other relevant cases that may have established a precedent, and there are a couple of cases dealing with local magazine bans very similar to what is now state law in California where the bans were upheld. One judge asked Murphy if those previous cases tie the judges hands here, beginning with the standard of review.
Murphy was ready with an answer, noting that the case California is relying on (called Fyock v Sunnyvale if you want to go deep into the legal weeds) dealt with a preliminary injunction, and said the opinion’s author even said it was not resolving the ultimate question of the constitutionality of the magazines themselves. In other words, the current judges aren’t bound by Fyock or any other case, and can use Duncan v. Becerra to find that magazine bans are subject to strict scrutiny. Using the plain language of the Heller and McDonald decisions, Murphy argued, the court can come to no other conclusion that these are arms in common use for a variety of lawful purposes, and a ban is incompatible with the Constitution.
It’s hard to read too many tea leaves here, but I’m actually somewhat optimistic after watching the oral arguments. I think gun owners in California have a real chance of seeing their magazine ban ruled unconstitutional by this three judge panel, though it should be noted that even then the legal fight won’t be over. The state of California could request an en banc review from a larger pool of judges on the circuit, or appeal directly to the U.S. Supreme Court. Both of those options are riskier for the state than they would have been a few years ago. President Trump has nearly flipped the 9th Circuit to a majority of Republican-appointed judges, and the Court isn’t as hostile to the Second Amendment as it’s traditionally been. The U.S. Supreme Court might also not be friendly ground, especially if the Court issues a ruling in NYSPRA v. New York City that requires Second Amendment cases be reviewed under strict scrutiny.
I’m optimistic that eventually California’s magazine ban will be struck down, and I think you will be too if you watch the entire oral arguments in the video above. At the end of the day, we’ve got the Constitution and case law on our side.