With the Ninth Circuit Court of Appeals deciding this week to grant an en banc review of the court’s decision overturning California’s ban on ammunition magazines that can hold more than ten rounds, I thought it would be timely to devote an episode of Bearing Arms’ Cam & Co to that case, along with some of the other Second Amendment-related cases that are slowly working their way through the appeals process in the appellate court. I’m thrilled that California Rifle & Pistol Association president and general counsel Chuck Michel could join me on today’s program as we discuss the latest legal machinations regarding our right to keep and bear arms.
Michel tells me that he’s cautiously optimistic about the en banc hearing, noting that the Ninth Circuit isn’t dominated by anti-gun judges anymore. Thanks to the efforts of Donald Trump, Mitch McConnell, and Senate Republicans over the last few years, the Ninth Circuit is far more balanced than in years past, though it’s not quite a 50-50 split.
Since the Ninth Circuit is so large, instead of every judge on the appellate court taking part in an en banc review (as is the case in other appellate courts), eleven judges will be randomly selected to re-hear the case. Michel says he’s hopeful that a majority will vote to uphold both the decision by U.S. District Judge Roger Benitez and the three judge panel of the Ninth Circuit led by Judge Kenneth Lee that declared California’s law to be a violation of the rights of residents.
Even if the court goes the other way, however, Michel says the ultimate goal is for the Supreme Court to weigh in, and he’s even more optimistic that by the time Duncan vs. Becerra reaches the Court, justices will have taken up and decided another Second Amendment case that will provide real clarity to lower courts on the standard of review that should be used when deciding the constitutionality of gun control laws.
The Ninth Circuit has given broad deference to local and state governments when it comes to gun control laws in recent years. As long as the government is claiming that the gun control law was put in place in the name of public safety, that’s been a good enough rationale for the court to keep the laws in place, even if they’re not narrowly tailored to advancing public safety with minimal interference to the right to keep and bear arms. In a challenge to California’s microstamping law, for instance, the Ninth Circuit ruled that iit could remain in place, even though there’s no way for gun manufacturers to actually comply with the law.
According to the appeals court, the law requiring all new models of handguns to come with the microstamping technology imposed “almost no burden on the physical exercise of Second Amendment rights,” despite the fact that enforcement of the law means that no new models of handguns have been made available for sale in the state for nearly a decade.
[Judge M. Margaret] McKeown wrote “being unable to purchase a subset of semiautomatic weapons, without more, does not significantly burden the right to self-defense in the home.”
But in a dissenting opinion, U.S. Circuit Judge Jay Bybee said he disagreed with microstamping requirement, calling the state’s testing protocol so “demanding that no gun manufacturer can meet it.”
The George W. Bush appointee noted in his nearly 50-page dissent that the restrictive protocol has yielded a secondary effect: Since at least 2013, there have been no new handguns sold commercially in California.
The Supreme Court took a pass on the microstamping case a few years ago, but that was before Justice Amy Coney Barrett was appointed to the Court by Donald Trump. With Barrett now on the bench, Michel is hopeful that SCOTUS finally has the votes necessary to not only begin hearing 2A cases, but siding with those trying to strike down laws that limit the right to keep and bear arms through empty claims of a public safety benefit.
The next opportunity for the Court to grant cert in a case dealing with the right to bear arms is coming up in just a few weeks. New York State Rifle & Pistol Association vs. Corlett, which challenges New Yorks’ carry licensing regime, is scheduled to be heard in conference on March 26th, and the Court could announce as early as March 29th if it will agree to hear the case.
Be sure to check out the entire conversation with Chuck Michel in the video window above, and if you’d like more information about the California Rifle & Pistol Association, you can visit them online at CRPA.org.
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