Today was the deadline for California Attorney General Xavier Becerra to decide his next step in a challenge to the state’s ban on so-called Large Capacity Magazines. Two weeks ago a three judge panel on the Ninth Circuit Court of Appeals declared that the ban violates the constitutional rights of residents, and we knew that Becerra wasn’t just going to let that decision stand. The big question was whether Becerra would seek an en banc review from a larger panel of judges on the Ninth Circuit, or appeal directly to the U.S. Supreme Court, and on Friday afternoon Becerra ended the suspense by keeping the case in the Ninth Circuit for now with a request for the en banc review in the case known as Duncan vs. Becerra.
From the California Rifle & Pistol Association:
President and General Counsel Chuck Michel noted that, “By potentially sending this case to the Supreme Court, this case may present opportunity to set things straight on the underlying issue of what the standard of review test should be when considering any Second Amendment challenges. The Supreme Court seems inclined to do away with the complicated subjective tests that many courts have wrongly applied in Second Amendment cases, in favor of a clearer more objective “originalist” approach that considers the text, history, and tradition of a law to determine what infringements might be tolerated.”
SCOTUS is likely going to get their hands on this case at some point, though with the en banc review it will be likely be at least mid-2021 before the en banc panel returns its decision. In the meantime, the ban on the sale of ammunition magazines that can accept more than ten rounds is likely to remain in place.
In his request for the 9th Circuit to review the three judge panel’s decision, Becerra claims that if the ban is struck down, Californians will be put at greater risk for violence.
“Our commonsense gun safety measures here in California have a track record of success in doing what they were meant to do — keep our communities safe,” said Attorney General Becerra. “We disagree with the Court’s initial decision and will continue to use every tool we have to defend the constitutionality of our laws.”
You can read Becerra’s brief for yourself here, but this bit is really the key part of his argument.
California enacted its current LCM law to mitigate the devastation caused by mass shootings. The record confirms that the law advances that interest while also preserving gun owners’ ability to defend themselves. The Second Amendment allows this type of regulation—and the consequences of invalidating it could be devastating.
This Court should grant rehearing en banc both to secure uniformity of its decisions and to ensure that California and other States retain the ability to adopt reasonable regulations addressing the deadly threat posed by LCMs.
Becerra notes that other appellate courts around the country have upheld similar bans, and argues that an earlier decision by the 9th Circuit upholding a local ban on “Large Capacity Magazines” in the city of Sunnyvale, California was similarly upheld in the 9th Circuit in a case known as Fyock vs. Sunnyvale. The problem for Becerra is that both U.S. District Judge Roger Benitez and the three judge panel both concluded that the Fyock case “was decided on a different record, using a different standard of review,” and is therefor not binding on the 9th circuit in this case.
Becerra’s argument that a ban on magazines that hold more than ten rounds of ammunition doesn’t violate the Second Amendment rights of residents is a bit of wishful thinking, and requires ignoring completely what the Supreme Court has said in the Heller and McDonald cases, as well as the guidance that the high Court issued in a case called Caetano vs. Massachusetts, which dealt with a ban on stun guns.
In that case, the U.S. Supreme Court made it clear that ““the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” In other words, the Second Amendment doesn’t just protect the right to own a musket. The guidance in Heller is even more explicit; arms that are in “common use for lawful purposes like self-defense” are those that have the greatest degree of protection under the Second Amendment.
As Ninth Circuit Judge Kenneth Lee pointed out in his decision two weeks ago, California’s ban on Large Capacity Magazines declares some of the most commonly owned ammunition magazine in the country to be outside of the scope of the Second Amendment, in direct contradiction to what the Supreme Court said in Heller. More than half of the magazines in this country can accept more than ten rounds, so clearly they’re in common use by law-abiding gun owners for a variety of lawful purposes, including training, competition, and self-defense.
Xavier Becerra is hoping that the eleven judges on the Ninth Circuit that will re-hear the case will have an anti-gun majority, but the odds of that happening are much lower than they would have been even a year ago. Thanks to Donald Trump’s judicial appointments, there’s now near parity in the circuit between Republican and Democrat-appointed judges, whereas in years past Democrat-nominated judges dominated the appellate court.
If Becerra is successful in getting the en banc panel to overturn the lower courts’ decision, then the plaintiffs will certainly appeal the case to the U.S. Supreme Court. If the en banc panel actually upholds Judge Benitez’s decision, on the other hand, it’s unclear what the AG might do.
There’ve been multiple occasions since the Heller decision where appellate courts have struck down gun laws, and rather than appeal to SCOTUS, anti-gun politicians have thrown in the towel in order to avoid a precedent-setting decision from the justices. The state of Illinois, for example, adopted a shall-issue concealed carry law after the Seventh Circuit ruled that the state’s ban on carrying firearms violated the right to bear arms, while Washington, D.C. officials decided not to appeal a D.C. Circuit Court of Appeals decision declaring the federal city’s “good cause” requirement for concealed carry licenses to be similarly unconstitutional.
If the en banc panel comes back and upholds Judge Benitez’s decision, Becerra will have a tough choice ahead of him. Does he gamble that SCOTUS will take the case and rule in his favor, given the rumors that Chief Justice John Roberts has gone soft in his support of the Second Amendemnt? Or does he decide its not worth the risk, in which case Democrats in California might turn around and pass a ban on any ammunition magazine that can hold eleven rounds instead of ten. One thing is for certain; the anti-gun Democrats in charge of California aren’t going suddenly embrace or even recognize our right to keep and bear arms.