9th Circuit Court Panel Says California Magazine Limit Violates 2A

U.S.A. –-(AmmoLand.com)- In a 2-1 ruling, a Ninth Circuit Court of Appeals panel on Friday affirmed a lower court ruling that the California ban on so-called “large-capacity magazines” violates the Second Amendment. The ruling may be read below or online here.

The majority opinion was written by Circuit Judge Kenneth K. Lee, joined by Judge Consuelo M. Callahan. District Judge Barbara M.G. Lynn dissented. The case is known as Duncan v. Becerra.

The case was brought by the California Rifle & Pistol Association, Inc., and it attracted national attention from attorneys general in several other states, plus gun prohibition lobbying groups and gun rights organizations. CRPA is represented by attorney Chuck Michel. He quickly went on social media to provide a summary.

In his 66-page ruling, Judge Lee observed, “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.”

Significantly, the court applied strict scrutiny in reaching its decision.

According to Judge Lee’s ruling, “The Ninth Circuit employs a two-prong inquiry to determine whether firearm regulations violate the Second Amendment: (1) whether the law burdens conduct protected by the Second Amendment; and (2) if so, what level of scrutiny to apply to the regulation…

“The panel held that under the first prong of the test,” Judge Lee’s summary continues, “Cal. Penal Code § 32310 burdened protected conduct. First, the panel held that firearm magazines are protected arms under the Second Amendment. Second, the panel held that LCMs are commonly owned and typically used for lawful purposes, and are not “unusual arms” that would fall outside the scope of the Second Amendment. Third, the panel held that LCM prohibitions are not longstanding regulations and do not enjoy a presumption of lawfulness. Fourth, the panel held that there was no persuasive historical evidence in the record showing LCM possession fell outside the ambit of Second Amendment protection.

“Proceeding to prong two of the inquiry,” the judge explained, “the panel held that strict scrutiny was the appropriate standard to apply. First, the panel held that Cal. Penal Code § 32310 struck at the core right of law-abiding citizens to self-defend by banning LCM possession within the home. Second, the panel held that Section 32310’s near-categorical ban of LCMs substantially burdened core Second Amendment rights. Third, the panel held that decisions in other circuits were distinguishable. Fourth, the panel held that this circuit’s decision in Fyock v. City of Sunnyvale, 779 F.3d 991 (9th Cir. 2015), did not obligate the panel to apply intermediate scrutiny.”

One of the organizations submitting an amicus brief was the Second Amendment Foundation. They were joined by the California Gun Rights Foundation, Firearms Policy Coalition, Firearms Policy Foundation, Armed Equality, San Diego County Gun Owners, Orange County Gun Owners, Riverside County Gun Owners, and California County Gun Owners.

According to SAF founder and Executive Vice President Alan Gottlieb in a statement, “While this was not our case, this is a victory for all gun owners, and the majority opinion reflects our arguments in (the) amicus brief we submitted.”

Brandon Combs, president of the Firearms Policy Coalition, essentially said the same thing via email, noting “We were the only parties to brief that issue.”

SAF and FPC actually have a similar case pending in California known as Wiese v. Becerra that also challenges the ban on large capacity magazines. Gottlieb predicted the Duncan ruling will quickly be applied to that case.

Judge Lee noted in his Friday ruling:

“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,” he continued, “LCMs may be lawfully possessed in 41 states and under federal law.”

In the 2008 Heller ruling, Lee reminded, the U.S. Supreme Court recognized handguns as the “quintessential self-defense weapon.”

CRPA was joined by several private citizens including Virginia Duncan—for whom the case is named—along with Richard Lewis, Patrick Lovette, David Marguglio and Christopher Waddell.

Duncan v. Becerra Ruling

About Dave Workman

Dave Workman is a senior editor at TheGunMag.com and Liberty Park Press, author of multiple books on the Right to Keep & Bear Arms and formerly an NRA-certified firearms instructor.