While we wait to see how California Attorney General Xavier Becerra will respond to today’s decision by the Ninth Circuit Court of Appeals that struck down the state’s ban on magazines with a capacity of more than ten rounds, it’s worth taking a closer look at the decision itself, as well as the judges on the panel that heard the case.
The opinion was authored by Judge Kenneth Lee, who was appointed to the bench in 2018 by President Donald Trump. Joining him in the majority opinion was Judge Consuelo Callahan, appointed to the Ninth Circuit in 2003 by President George W. Bush. The one dissenting judge in the case, Barbara M. Lynn, received her appointment to the bench back in 1999 thanks to President Bill Clinton.
Let’s dive in to Judge Lee’s decision, which begins by noting that lawmakers may have approved the state’s ban on so-called Large Capacity Magazines with the best of intentions.
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 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. We affirm the district court’s summary judgment, and hold that California Penal Code section 32310’s ban on LCMs runs afoul of the Second Amendment.
How did the majority reach the conclusion that the state’s ban on “Large Capacity Magazines” violates the constitutional rights of residents? They began by noting the common usage of LCMs among gun owners.
Millions of Americans across the country own LCMs. One estimate based in part on government data shows that from 1990 to 2015, civilians possessed about 115 million LCMs out of a total of 230 million magazines in circulation. Put another way, half of all magazines in America hold more than ten rounds. Today, LCMs may be lawfully possessed in 41 states and under federal law. Notably, LCMs are commonly used in many handguns, which the Supreme Court has recognized as the “quintessential self-defense weapon.”
Lee notes that the state of California argues that the ban on the manufacture, sale, and possession of LCMs isn’t an infringement on the right to keep and bear arms because gun owners can always use more magazines with a smaller capacity, but Lee disagrees, declaring that the ban “severely burdens the core of the constitutional right of law-abiding citizens to keep and bear arms.” The judge goes on to say that the law in question “is a poor means to accomplish the state’s interests and cannot survive strict scrutiny,” but also notes that even under intermediate scrutiny it would still fail the Ninth Circuit’s test of constitutionality.
The Ninth Circuit assesses the constitutionality of firearm regulations under a two-prong test. This inquiry “(1) asks whether the challenged law burdens conduct protected by the Second Amendment and (2) if so, directs courts to apply an appropriate level of scrutiny.” To determine whether the law burdens protected conduct, this court appears to ask four questions.
First, as a threshold matter, we determine whether the law regulates “arms” for purposes of the Second Amendment. Second, we ask whether the law regulates an arm that is both dangerous and unusual. If the regulated arm is both dangerous and unusual, then the regulation does not burden protected conduct and the inquiry ends. Third, we assess whether the regulation is longstanding and thus presumptively lawful. And fourth, we inquire whether there is any persuasive historical evidence in the record showing that the regulation affects rights that fall outside the scope of the Second Amendment.
If either of these latter questions is found in the affirmative, the law does not burden protected conduct and the inquiry ends. If a court finds that a regulation burdens protected conduct, then it must proceed to the second prong of analysis and determine the appropriate level of constitutional scrutiny.
This, in turn, requires the court to ask two more questions. First, we ask how “close” the challenged law comes to the core right of law-abiding citizens to defend hearth and home. And second, we analyze whether the law imposes substantial burdens on the core right. If a challenged law does not strike at the core Second Amendment right or substantially burden that right, then intermediate scrutiny applies. Only where both questions are answered in the affirmative will strict scrutiny apply.
Judge Lee notes that ammunition magazines are already considered “arms” under Ninth Circuit precedent and are in common use and typically used for law-abiding purposes. In fact, the judge spends a couple of pages going over the history of firearms in the United States with a capacity of more than ten rounds, noting that the first such firearms were invented around 1580, and would not have been seen as novelties or theoretical inventions to the Founding Fathers.
When it comes to the question of whether or not the ban on LCMs is a “longstanding” and presumptively lawful statute, Lee correctly points out that “longstanding” is a fairly subjective term.
In our circuit, we have looked for evidence showing whether the challenged law traces its lineage to founding-era or Reconstruction-era regulations. In Chovan, for example, we expressed strong doubts that bans on firearm possession for violent offenders were sufficiently longstanding because the first known restriction was not enacted until 1938. In Jackson, we reviewed regulations on handgun storage and sales of certain ammunition, keying our analysis to analogues in founding-era and Reconstruction-era fire safety laws.
Section 32310 cannot be considered a longstanding regulation that enjoys presumptive legality. As noted above, when the Founders ratified the Second Amendment, no laws restricted ammunition capacity despite multi-shot firearms having been in existence for some 200 years. Only during Prohibition did a handful of state legislatures enact capacity restrictions
Lee also points out that while Congress placed fully automatic machine guns under the National Firearms Act of 1934, they didn’t include magazines of any size in the gun control law. A ban on LCM’s was put in place as part of the Clinton Gun Ban in 1994, but unlike California’s law, that contained a grandfather clause that allowed for continued possession of currently owned magazines.
Having determined that the first step in the two-pronged process has been satisfied, Lee then turns his attention to the standard of review that should be used. According to the judge, the state’s mag ban strikes at the core of the Second Amendment right to keep and bear arms because by “banning LCMs everywhere for nearly everyone, it necessarily bans possession of LCMs within the home where protections are ‘at their zenith.’” The law also imposes a “substantial burden” on gun owners because it:
“… categorically bars the possession of magazines that are commonly used in handguns, the “quintessential self-defense weapon.” And it bans LCM possession for nearly everyone, everywhere in California. Simply put, any law that comes close to categorically banning the possession of arms that are commonly used for self-defense imposes a substantial burden on the Second Amendment.
Judge Lee then engages in another valuable history lesson, this time on how the right to self-defense and the right to keep and bear arms has been utilized throughout American history, as well as how that right has been denied to some Americans.
After the founding, Southern states often severely limited, or outright prohibited, firearm possession by slaves, freedmen, and others. The judicial branch, too, played a role in denying this fundamental right of self-defense to Blacks. In the infamous Dred Scott v. Sanford decision, Chief Justice Taney recited a parade of horribles if Black Americans were to be considered citizens: it would give Blacks the “right to enter every other State whenever they pleased,” to exercise “full liberty of speech,” to “hold public meetings upon political affairs,” and “to keep and carry arms wherever they went.”
It did not get much better even after a bloody war that tore the country apart. Post-Civil War state legislation and the Black Codes in the South deprived newly freed slaves of their Second Amendment rights. Meanwhile, armed bands of ex-Confederates roamed the countryside forcibly disarming and terrorizing AfricanAmericans. The Radical Republicans in Congress fought back against these “systematic efforts . . . to disarm” Black Americans by enacting the Freedmen’s Bureau Act of 1866 and the Civil Rights Acts of 1866, both of which guaranteed all persons the right of self-defense…
Not surprisingly, Black Americans embraced their right to self-defense, understanding that protections offered by the state may be promising in theory but fatal in fact. Ida B. Wells — the crusading journalist who co-founded the NAACP — wrote that “a Winchester rifle should have a place of honor in every black home, and it should be used for that protection which the law refuses to give.”
The entire history lesson is too long to reprint here, but you can find it starting on page 35 of the opinion, and it’s well worth a read. The reason for the look back at how the Second Amendment has been used over the centuries, according to Lee, is to “drive home the point that the Second Amendment is not a second-class right.”
“Nor is self-defense a dispensation granted at the state’s mercy. Rather, the Second Amendment is a fundamental constitutional right guaranteed to the people — especially those who may not be equally protected by the state. Moreover, the Second Amendment is not a relic relevant only during the era of Publius and parchments. It is a right that is exercised hundreds of times on any given day. The parties and amici disagree on the number of times that guns are used for defensive purposes, offering anywhere from 240,000 to 2.5 million times a year. That means that an average of 657 Americans — and perhaps up to 6,849 Americans — use guns to defend themselves every single day of the year. We take notice of this fact in recognizing the fundamental right of self-defense.
The state of California argues that the Second Amendment is indeed a second-class right, one that “deserves less protection because it allegedly poses an inherent danger to public safety that other rights do not.” Not so, according to Judge Lee, who points out that the Supreme Court said in McDonald v. Chicago that “the right to keep and bear arms . . . is not the only constitutional right that has controversial public safety implications. All of the constitutional provisions that impose restrictions on law enforcement and on the prosecution of crimes fall into the same category.”
There is also no stopping point to the state’s argument. Under its logic, California could limit magazines to as few as three bullets and not substantially burden Second Amendment rights because, on average, 2.2 bullets are used in every defensive encounter according to one study.21 But the threat to life does not occur in an average act in the abstract; self-defense takes place in messy, unpredictable, and extreme events. And what’s more, the state’s logic is in no way limited to restricting the number of bullets in a magazine.
If it is not substantially burdensome to limit magazines to ten rounds because the average defensive shooter uses fewer bullets, then there is no reason it could not impose a one-gun-per-person rule. In fact, there is a more compelling case to impose a one-gun policy under the state’s theory. After all, the study relied on by the state also shows that an overwhelming majority of mass shootings involved the use of multiple guns while a relative few definitively involved LCMs. This cannot be right. We would never uphold such a draconian limitation on other fundamental and enumerated constitutional rights.
Interestingly, Judge Lee actually uses the words of Sen. Kamala Harris to bolster his argument that LCM’s may be of particular benefit to gun owners in “communities of color”, who:
“…do not trust law enforcement and are less likely — over 40% less likely, according to one study — to call 911 even during emergencies. See 163 Cong. Rec. S1257-58 (daily ed. Feb. 16, 2017) (statement of Sen. Kamala Harris) (discussing a study showing that certain ethnic groups are over 40% less likely to call 911 in an emergency); see also Nik Theodore & Robert Habans, Policing Immigrant Communities: Latino Perceptions of Police Involvement in Immigration Enforcement, 42 J. of Ethnic and Migration Stud. 970 (2016). These citizens may rely more on self-defense than the “average” person in a home invasion or some other emergency.
That last bit should provide some great campaign fodder for the Trump campaign to use against Biden and Harris as they tout their anti-gun agenda over the coming months.
Having explained why strict scrutiny is the proper judicial lens through which to examine the state’s magazine ban, Judge Lee decided to do some extra credit work and also lay out why the ban fails under intermediate scrutiny as well.
Section 32310 fails intermediate scrutiny for many of the same reasons it fails strict scrutiny. Even with the greater latitude offered by this less demanding standard, section 32310’s fit is excessive and sloppy. In his dissent in Heller, Justice Breyer would have upheld D.C.’s law under his interest-balancing test because the law was “tailored to the urban crime problem that is local in scope and thus affects only a geographic area both limited in size and entirely urban.”
Not so here. The statute operates as a blanket ban on all types of LCMs everywhere in California for almost everyone. It applies to rural and urban areas, in places with low crime rates and high crime rates, areas where law enforcement response times may be significant, to those who may have high degrees of proficiency in their use for self-defense, and to vulnerable groups who are in the greatest need of self-defense. The law also prohibits possession outright. And it applies to all firearms, including handguns that are the “quintessential self-defense weapon.
That’s not the only problem with the magazine ban, even under intermediate scrutiny.
Section 32310’s failure to incorporate a grandfather clause is another red flag. We do not write on a blank slate on this matter. This court has already held that grandfather clauses are “important” in reducing burdens generated by a restriction. It follows that grandfather clauses are also important to assess fit. Without such a clause, law-abiding citizens who legally possessed LCMs before enactment are deprived of the right to use those arms for lawful ends. These law-abiding citizens could have owned LCM for decades, and perhaps even used them for self-defense in the past. But none of that matters under California law. They must turn them over — or face a year in jail. Based on the record before us, there is no apparent justification or support for the lack of a grandfather exception.
The state speculates that a complete prohibition is necessary to avoid legally owned LCMs from falling into the wrong hands. But the flaws of that argument are obvious. The state could ban virtually anything if the test is merely whether something causes social ills when someone other than its lawful owner misuses it. Adopting such a radical position would give the government carte blanche to restrict the people’s liberties under the guise of protecting them.
After that exhaustive look at why California’s magazine ban fails both strict and intermediate scrutiny, Judge Lee sums up the position of the majority.
Let us be clear: We are keenly aware of the perils of gun violence. The heartbreak and devastation caused by criminals wielding guns cannot be overstated. And we also understand the importance of allowing state governments the ability to fashion solutions to curb gun violence. We have thus held that California can, for example, impose waiting periods, require microstamping of guns, and forbid felons, the mentally ill, or misdemeanants convicted of domestic violence from owning firearms.
We also want to make clear that our decision today does not address issues not before us. We do not opine on bans on so-called “assault weapons,” nor do we speculate about the legitimacy of bans on magazines holding far larger quantities of ammunition. Instead, we only address California’s ban on LCMs as it appears before us. We understand the purpose in passing this law. But even the laudable goal of reducing gun violence must comply with the Constitution. California’s near-categorical ban of LCMs infringes on the fundamental right to self-defense. It criminalizes the possession of half of all magazines in America today. It makes unlawful magazines that are commonly used in handguns by law abiding citizens for self-defense. And it substantially burdens the core right of self-defense guaranteed to the people under the Second Amendment. It cannot stand.
Judge’s Lee’s opinion is thoughtful, thorough, and compelling. Will it stand up to review by either an en banc review by a larger poll of judges in the Ninth Circuit, or possibly even the Supreme Court? Coming up tomorrow we’ll take a look at the dissenting arguments put forth by Judge Barbara M.G. Lynn and weigh the merits of her dissent against Judge Lee’s majority opinion.