Ordinarily I try not to repeat guests on Bearing Arms’ Cam & Co, too frequently, but I’m really pleased to welcome back Rick Travis, development director for the California Rifle & Pistol Association to the show today. Last week Rick joined me to talk about Kamala Harris’s anti-gun activities as District Attorney in San Francisco and Attorney General for California, but today he’s with me to talk about the excellent news on Friday in the Duncan v. Becerra case; a three judge panel of the Ninth Circuit Court of Appeals declared California’s ban on the sale and possession of so-called large capacity magazines violates the Second Amendment right to keep and bear arms.
The most important thing you need to know is that, for now anyway, the law remains in effect even though the 9th Circuit’s ruling declared that U.S. District Judge Roger Benitez correctly decided the case when he issued his original decision striking down the law back in 2019. When Benitez issued his own opinion last year, after one week in which Californians could and did purchase “large capacity magazines” (perhaps as many as 1,000,000 of them, in fact) he then issued a stay for a portion of the decision: Californians could continue to possess their LCMs but could no longer legally purchase them.
For now, that stay remains in effect, according to the CRPA, which has posted a letter from the California Department of Justice on its website affirming that until the appeals process has been exhausted, it remains illegal to purchase a magazine with a capacity of more than ten rounds. That didn’t stop many gun stores and gun owners in California from loading up over the weekend, but my guess is the state is going to try to enforce the law as best it can while the stay remains in effect.
Travis says that Gov. Gavin Newsom and Attorney General Xavier Becerra have until August 28th to decide their next step, and they’ve got a three options: accept the Ninth Circuit’s decision, appeal the decision of the three judge panel to an en banc panel of 11 judges from the Ninth Circuit, or ask the Supreme Court to hear the case. At this point I think an en banc review is the most likely possibility, though as Rick Travis correctly points out, the Ninth Circuit isn’t nearly as anti-gun in its makeup as it was just a few years ago. Thanks to judicial appointments by President Donald Trump over the last few years, the Ninth Circuit is near parity in terms of judges appointed by Democrats and Republicans.
In other words, a reversal by an en banc panel isn’t a slam dunk here. The Supreme Court also isn’t a sure thing for Newsom and Becerra, even though SCOTUS just denied the chance to hear nearly a dozen Second Amendment cases just a few months ago. All of those cases were brought by gun owners and Second Amendment organizations, not by states trying to keep their anti-gun laws in place, as would be the case in California’s appeal. The Supreme Court could easily pass on the Duncan case as well, which would leave the decision by the three judge panel in place not only in California, but all twelve of the western states covered by the Ninth Circuit.
Of course, as Travis points out, there’s a reason why SCOTUS might embrace the Duncan case even though it recently turned away so many other challenges to gun control laws; the opinion by Judge Lee specifically decided that the state’s ban on magazines should be considered under strict scrutiny, or the highest level of judicial review. Several of the conservative justices on the Supreme Court have vocally expressed the need for SCOTUS to take up another 2A case in order to provide guidance to lower courts on the proper standard of review to be used when gun control laws face a constitutional challenge, and the fact that the Ninth Circuit determined that the highest level of review is warranted should be music to the ears of justices like Samuel Alito and Clarence Thomas. The biggest question is whether Chief Justice John Roberts would go along with the case, but that’s been the great unknown for several months now.