The Ninth Circuit Court of Appeals has moved to vacate the decision of a three judge panel that ruled California’s ban on the acquisition and possession of ammunition magazines that can hold more than ten rounds violated the Second Amendment, granting a motion to rehear the case with a broader pool of judges in an opinion released Thursday afternoon.
While on the surface this may look like bad news, it’s not unexpected. Virtually every pro-Second Amendment opinion coming out of the Ninth Circuit is reheard by an en banc panel, and plaintiffs in this case, known as Duncan vs. Becerra, have been waiting for months for the court to make official what everyone suspected; anti-gun judges on the court want a re-do in the hopes of overturning the decision.
The federal lawsuit was filed in 2017 by the California Rifle and Pistol Association — the state arm of the National Rifle Association — and five San Diego County residents.
They were opposing two 2016 state laws: a bill passed by the Legislature making it illegal to own magazines that hold 10 or more bullets, as well as a voter-passed ballot measure that requires people to get rid of such magazines they already own or face being charged with a misdemeanor or infraction.
A 2000 law already makes it illegal to sell or buy such magazines.
The lawsuit argued the new laws infringe on the constitutional right to bear arms. Three of the plaintiffs said they wanted the magazines for self-defense while two others said they shouldn’t have to give up magazines they already own.
U.S. District Judge Roger Benitez sided with the gun owners, saying in a strongly worded opinion that the law “turns millions of responsible, law-abiding people trying to protect themselves into criminals.”
The state attorney general’s office appealed, and the district court’s decision was upheld. The majority opinion, penned by Judge Kenneth K. Lee, found the law “runs afoul of the Second Amendment,” particularly the right to armed self-defense.
Judge Barbara Lynn dissented, finding that the law “does not place a substantial burden on core Second Amendment rights because it does not prevent the use of handguns or other weapons in self-defense.”
The attorney general petitioned for the en banc hearing, arguing that the ruling conflicted with other court decisions.
“This case involves a question of exceptional importance, affecting the safety of every Californian,” the state argued in its petition.
A majority of judges on the Ninth Circuit voted to re-hear the case, which in most circumstances would almost guarantee a reversal of the original decision. In every appellate court but the Ninth Circuit, en banc reviews involve every appellate court judge, but because the Ninth Circuit is so large, that’s not the case there. Instead, 11 justices (ot out the 27 active judges in the Ninth Circuit) will be involved in the en banc review, and thanks to Donald Trump’s court appointments, the Ninth Circuit is nearly equal in terms of the Republican and Democrat-appointed judges.
The chief judge of the Ninth Circuit (Clinton appointee Sidney Thomas) will automatically be involved in the en banc hearing, but the other ten judges are selected at random. There’s a decent, if not overwhelming, chance that the en banc review will end up affirming the original decision penned by Judge Lee, which would mean that there would be a split opinion on the constitutionality of magazine bans among the various appellate courts.
California Rifle and Pistol Association president and general counsel Chuck Michel tells Bearing Arms that the organization is “excited to have another opportunity to defend what Californians already know – law-abiding citizens’ ability to purchase, possess, and use standard-capacity magazines in California is a fundamental civil right and shall not be infringed.”
Regardless of what the en banc panel decides, this case is ultimately bound for the Supreme Court. The en banc review, however, means that any possibility of the Court taking the case this year is slim to none, because the Ninth Circuit also has a history of dragging its feet in releasing its en banc opinions in Second Amendment cases.
For example, last September the Ninth Circuit heard oral arguments in a case called Young vs. Hawaii, which challenges that state’s ban on openly carried firearms without a license. The Ninth Circuit has already ruled that the Second Amendment doesn’t protect a right to carry a concealed firearm (in a case known as Peruta), but a three judge panel determined in the Young case that if concealed carry isn’t protected, then the right to bear arms must protect the right to openly carry a gun.
You can watch the oral arguments of the en banc review here, but you can’t find the en banc decision anywhere because we’re still waiting for it to be released, more than five months after the oral arguments took place. At this point, the Ninth Circuit may be waiting to see what the Supreme Court does with the Corlett case that challenges New York State’s licensing regime before it releases its decision in Young, and if SCOTUS does end up accepting Corlett I wouldn’t be surprised if the Ninth Circuit hangs on to the opinion until after a verdict is released.
As for the current status of California’s magazine ban, the Ninth Circuit has kept a stay in place that was originally issued by Judge Roger Benitez prohibiting enforcement of the ban on possession of “high capacity” magazines while the case continues. For the moment, you can’t legally purchase a magazine with a capacity greater than ten rounds in California, but police can’t arrest you for simply arrest you for having one. If the anti-gun politicians in charge of the state get their way, however, simply owning some of the most common ammunition magazines in the country could put you behind bars.
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