In a move that could ultimately have legal ramifications nationwide, a three judge panel on the Ninth Circuit Court of Appeals has invalidated a California law banning the sale and possession of ammunition magazines that can hold more than ten rounds of ammunition, ruling that the state law violates the Second Amendment rights of residents.
Judge Kenneth Lee, writing for the majority, declared that “even well intentioned laws must pass constitutional muster,” arguing that California’s ban on so-called large capacity magazines should be invalidated because it “strikes at the core of the Second Amendment – the right to armed self defense.”
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.
California Rifle & Pistol Association president Chuck Michel calls today’s decision a huge victory for gun owners, and he’s absolutely right, even though California Attorney General Xavier Becerra has a couple of options available to him on appeal. The AG could ask an en banc panel of judges on the Ninth Circuit to rehear the case, or he could appeal directly to the U.S. Supreme Court. Of course, SCOTUS has been reluctant to hear any Second Amendment cases in recent years, and there’s a great deal of speculation that Chief Justice John Roberts wants to avoid taking up any hot-button cases dealing with the right to keep and bear arms.
An en banc review of the case by a broader panel of judges on the Ninth Circuit also carries some risk for Becerra, given the shift in the balance of the court. Long considered to be the most left-leaning of all the circuits, thanks to President Donald Trump’s judicial appointments over the past four years the Ninth Circuit has become much more balanced, and there’s a strong possibility than an en banc review would have a majority of Republican-appointed judges on the panel. That doesn’t guarantee that the panel would uphold today’s decision, but generally speaking, the odds of California prevailing in an en banc review are far lower than what they would have been just a couple of years ago.
As for the national implications for today’s decision, the Ninth Circuit has jurisdiction not only over California law, but a number of other western states; Hawaii, Alaska, Arizona, Oregon, Washington, Nevada, Idaho, and Montana. Today’s ruling will immediately impact the ban on handgun magazines over ten rounds that’s currently law in Hawaii, but it also creates a split among the federal courts of appeals, some of which have previously upheld magazine capacity restrictions. That increases the odds that the Supreme Court would agree to hear this case, because the Court tends to wait until there’s conflict between lower courts before weighing in.
Second Amendment groups are already sounding off on today’s court victory, with the NRA noting the potential national implications for the decision.
BREAKING NEWS: @NRA scores a HUGE win in California today. The 9th Circuit, led by a Trump-appointed judge, rules that ban on magazines with more than 10 rounds is UNCONSTITUTIONAL.
This case will have repercussions nationwide.
— NRA (@NRA) August 14, 2020
The Second Amendment Foundation’s Alan Gottlieb is also praising the decision, noting that while the organization didn’t bring the case, it is “a victory for all gun owners, and the majority opinion reflects our arguments in an amicus brief we submitted along with several other organizations. Most importantly, the panel majority used strict scrutiny to make its determination, and that is a huge milestone.”
That’s actually a hugely important point. Since the Heller and McDonald decisions a decade ago, too many federal courts have upheld gun control laws by relying on intermediate scrutiny in determining whether or not various gun laws are constitutional. That vague and fuzzy standard is lower than the strict scrutiny used by the Ninth Circuit in today’s decision in Duncan v. Becerra. Judge Lee writes in his opinion that the reason the panel adopted a strict scrutiny standard of review is simple; the law in question strikes at the core of the Second Amendment and poses a substantial burden on law-abiding gun owners who may want more a ten round magazine for self-defense.
The nub of the state’s position is that even though it bars Californians from owning one of every two magazines in the United States, that restriction is not substantially burdensome because Californians can still possess other magazines. But no court would hold that the First Amendment allows the government to ban “extreme” artwork from Mapplethorpe just because the people can still enjoy Monet or Matisse. Nor would a court ever allow the government to outlaw so-called “dangerous” music by, say, Dr. Dre, merely because the state has chosen not to outlaw Debussy. And we would never sanction governmental banning of allegedly “inflammatory” views expressed in Daily Kos or Breitbart on the grounds that the people can still read the New York Times or the Wall Street Journal…
Law-abiding citizens trapped in high-crime areas where the law enforcement is overtaxed may defend themselves in their homes with a handgun outfitted with LCMs. And in incidents of mass chaos and unrest, law enforcement simply may be unable to protect the people, leaving them solely responsible for their own safety in a seemingly Hobbesian world.
Finally, many citizens will not take any chances or compromise their ability to defend themselves and their families, and they may place their trust in guns equipped with LCMs as a last resort. Simply put, the guardrails found in our precedent that limit the government’s intrusion on the Second Amendment right do not exist in California’s near-categorical ban of LCMs. It imposes a substantial burden on the people’s Second Amendment rights. Strict scrutiny applies.
So when can California residents go out and purchase a 20-round magazine? It may be soon, but we’re not quite there yet. Today’s decision affirms the original decision by District Judge Robert Benitez, but Benitez stayed his own decision a week or so after he originally released his opinion. It will be up to Benitez to lift that stay, which would allow for the sale of magazines over ten rounds. I think it’s likely that Benitez will keep the stay in place, at least for now, while he waits for California Attorney General Xavier Becerra to decide if he’ll appeal en banc to the Ninth Circuit or try to take the case directly to SCOTUS.
Even though Californians may not yet be able to legally purchase a new 20-round magazine this weekend, this is still a hugely important decision and a reminder of the importance of the Second Amendment in this year’s elections. Joe Biden and Kamala Harris want to take California’s magazine ban nationwide, and if they win in November they’re likely to do just that as quickly as they possibly can. Today’s ruling cuts against their argument that a ban on so-called large capacity magazines is just common sense, because the Ninth Circuit says it’s actually unconstitutional.