By Johanna Reeves, Esq.
Back in 2020 I wrote about the judicial decisions which held the California ban on large capacity magazines to be unconstitutional because the ban violated the Second Amendment. See “Federal Court Rules California Ban Violates Second Amendment,” Small Arms Review, Vol. 24 No. 9 (Nov. 2020). The victory was short lived, and this past November, the Ninth Circuit overturned the previous decisions and ruled the LCM ban to be constitutional, revealing once again its distaste for the Second Amendment.
At issue is California Penal Code section 32310, which bans magazines that can hold more than ten rounds of ammunition (the so-called large-capacity magazines, or “LCMs”). The law, which California voters approved in November 2016, criminalized any person who possesses an LCM, regardless of the date the LCM was acquired. Current owners of LCMs were required to remove the magazines from the state, sell them to a firearms dealer, surrender them to law enforcement for destruction, or permanently modify the magazine to only accept ten or fewer rounds.
In 2017, shortly before Section 32310 was to go into effect, plaintiffs Virginia Duncan, Richard Lewis, Patrick Lovette, David Marguglio, Christopher Waddell, and the California Rifle and Pistol Association, Inc., sued the state’s Attorney General at the time, Xavier Becerra, on the grounds that the law was unconstitutional. The federal district court in San Diego granted a preliminary injunction on the grounds that “hundreds of thousands, if not millions, of otherwise law-abiding citizens will have an untenable choice: become an outlaw or dispossess one’s self of lawfully acquired property.” Duncan v. Becerra, 265 F.Supp.3d 1106 at 1139 (S.D. Cal. 2017) (Duncan I).
Attorney General Becerra appealed the lower court’s injunction to the 9th Circuit. In the meantime, plaintiffs filed a motion for summary judgment with the district court. In 2019, the district court ruled in favor of the plaintiffs and held Section 32310 to be unconstitutional in its entirety. Duncan v. Becerra, 366 F.Supp.3d 1131, 1186 (S.D. Cal. 2019) (“Duncan II”). The court’s order prohibited the attorney general, his officers, agents, employees, and attorneys, as well as state and federal law enforcement from enforcing the possession ban under Section 32310. The prohibition against the sale, purchase, manufacture, importation, or acquisition of LCMs remained in effect during the appellate process.
The California Attorney General Becerra appealed the Duncan II decision to the 9th Circuit, and on August 14, 2020, a three-judge panel of the Ninth Circuit affirmed the district court’s summary judgment. In a 2-1 decision (Judge Lynn dissenting), the panel struck down Section 32310 as unconstitutional because “it severely burdens the core of the constitutional right of law-abiding citizens to keep and bear arms.” 970 F.3d 1133, 1163 (9th Cir. 2020). The panel’s majority found that firearm magazines enjoy Second Amendment protection. “Without a magazine, many weapons would be useless, including ‘quintessential’ self-defense weapons like the handgun…. Put simply, a regulation cannot permissibly ban a protected firearm’s components critical to its operation.” 970 F.3d at 1146 (citing to District of Columbia v. Heller 554 U.S. 579, 629 and 630(2008)).
Subsequently, the California Attorney General requested a rehearing before a larger, en banc panel. On February 25, 2021, the circuit court granted the Attorney General’s petition for a rehearing and vacated the three-judge panel’s ruling.
The Ninth Circuit En Banc Hearing and Decision
The case was argued on June 22, 2021 before 11 judges, seven of whom were Clinton and Obama appointees and four were Trump and G.W. Bush appointees. The California Attorney General, who by this time was Rob Bonta (Xavier Becerra had moved on to serve as the Secretary of Health and Human Services in the Biden administration), argued that Section 32310’s ban on LCMs does not run afoul of the Second Amendment. According to Bonta, Section 32310 did not prevent law-abiding Californians from possessing all sorts of authorized firearms and magazines that would provide them with ample ammunition to defend themselves. Citing a correlation between mass shootings and LCMs, the California Attorney General argued there was a reasonable fit between California’s interest in reducing the number of mass shootings and the resulting casualties and Section 32310.
In a 7-4 decision, the en banc court sided with the California Attorney General and upheld the magazine ban (see Duncan v. Bonta, 19 F.4th 1087 (9th. Cir. 2021). Addressing the Second Amendment challenge, the court applied a two-step analysis, addressing first whether Section 32310 affects conduct protected by the Second Amendment and if so, what level scrutiny to apply.
Step One: Does the Second Amendment Protect Possession of Large Capacity Magazines?
Recall that one of the key findings of the previous three-judge panel was that magazines enjoy Second Amendment protection. That panel did not find LCMs to be “unusual” arms and had a long history of use and availability in the United States, dating back more than 200 years. That court also cited to statistics showing criminal use of LCMs to be relatively low in comparison to their market saturation.
Before the en banc court, the California Attorney General argued that Section 32310’s ban on LCMs does not implicate the Second Amendment for two reasons: LCMs are most useful in a military setting; and California has a long history of governing magazine capacity and such accepted control does not implicate the Second Amendment.
Rather than addressing head on Attorney General Bonta’s arguments against Second Amendment protection, the majority opinion of the en banc court side steps the issue and assumes without deciding that Section 32310 implicates the Second Amendment.
Step Two: What Level Scrutiny Should be Applied?
When determining whether a law is constitutional, courts will usually apply one of three levels of scrutiny: strict scrutiny, intermediate scrutiny, or a rational basis review. Strict scrutiny, as the name implies, is the highest level of scrutiny a court can apply and requires the government to prove a compelling state interest behind the law and that the law or regulation is narrowly tailored to achieve the result. Courts apply strict scrutiny when a “fundamental right” is threatened by a law.
Intermediate scrutiny requires the government show the law serves an important government objective and is substantially related to achieving the objective. Under both the strict and intermediate scrutiny approaches, the government bears the burden of satisfying the test.
Rational basis review is the lowest level of scrutiny and requires the person challenging the law (as opposed to the government) to show that the government has no legitimate interest in the law or that there is no reasonable link between the government interest and the challenged law. Under this approach, a court can determine a law to have a rational basis as long as any conceivable, rational basis exists, even if the government does not provide one.
The three-judge panel in Duncan held Section 32310 to be subject to strict scrutiny because Section 32310 threatened the core right of law-abiding citizens to defend hearth and home, and the burden imposed on the core right is substantial. The panel rejected the lesser standard of intermediate scrutiny as a contradiction to the Supreme Court decision in Heller. “[T]he Second Amendment is not a second-class right….Nor is self-defense a dispensation granted at the state’s mercy.” 970 F.3d at 1155 (citing the 2010 Supreme Court decision in McDonald v. City of Chicago).
The en banc court, however, rejected application of strict scrutiny on the grounds that such an approach is applicable only to laws that implicate a core Second Amendment right and place a substantial burden on that right. Here, the court determined that even if Section 32310 implicates the core Second Amendment right of self-defense in the home, the ban on LCMs is only a small burden on that right because the law has no effect on which or how many firearms may be owned, and owners of firearms can possess as many firearms, bullets, and magazines as they choose and may also fire as many bullets as they would like for whatever lawful purpose they choose. “The ban on large-capacity magazines has the sole practical effect of requiring shooters to pause for a few seconds after firing ten bullets, to reload or to replace the spent magazine.” 19 F.4th at 1104.
The court rejected Plaintiffs argument for strict scrutiny, citing experts who report that the use of more than ten bullets in defense of the home is rare or non-existent. “Plaintiffs have not pointed to a single instance in this record (or elsewhere) of a homeowner who was unable to defense himself or herself because of a lack of a large-capacity magazine.” 19 F.4th at 1105.
The en banc court also rejected Plaintiffs’ contention that the Section 32310 ban on LCMs fails under any standards of scrutiny much like the D.C. handgun ban at issue in the Heller case. “The law at issue here does not ban any firearm at all. It bans merely a subset (large-capacity) of a part (a magazine) that some (but not all) firearms use.” 19 F.4th at 1107.
The Ban on LCMs Survives Intermediate Scrutiny
The en banc court determined that California enacted the LCM ban to prevent and mitigate gun violence. “Although mass shootings may be an irregular occurrence, the harm that flows from them is extensive. We readily conclude that reducing the harm caused by mass shootings is an important government objective.” 19F.4th at 1109. The court found that large-capacity magazines allow a shooter to fire more bullets from a single firearm uninterrupted. When the shooter must reload or switch weapons, this pause allows victims to flee and law enforcement to confront the shooter. The en banc court also found that most mass shooters have possessed their weapons and their large-capacity magazines lawfully. Consequently, removing the ability to possess such magazines reasonably supports California’s aim to reduce the harm caused by mass shootings.
The court rejected Plaintiffs’ argument that LCMs are important for self-defense. “Plaintiffs and their experts speculate about hypothetical situations in which a person might want to use a large-capacity magazine for self-defense. But Plaintiffs’ speculation, not backed by any real-world examples, comes nowhere near overcoming the deference that we must give to the reasonable legislative judgment, supported by both data and common sense, that large-capacity magazines significantly increase the devastating harm caused by mass shootings and that removing those magazines from circulation will likely reduce deaths and serious injuries.”
Based on these findings, the en banc court concluded that the ban on LCMs is a reasonable fit for the compelling goal of reducing gun violence and thus is not in violation of the Second Amendment. The court also rejected Plaintiffs’ Fifth Amendment takings argument under the reasoning that because Section 32310 allows a person to sell or modify their property, there is no unlawful government taking.
The en banc decision was a severe disappointment to Second Amendment advocates, but it was not surprising given the history of the Ninth Circuit’s approach to Second Amendment cases. As Judge VanDyke points out in his dissent, the Ninth Circuit has a long history of undermining the Second Amendment:
“We are a monstrosity of a court exercising jurisdiction over 20% of the U.S. population and almost one-fifth of the states—including states pushing the most aggressive gun-control restrictions in the nation. By my count, we have had at least 50 Second Amendment challenges since Heller—significantly more than any other circuit—all of which we have ultimately denied. In those few instances where a panel of our court has granted Second Amendment relief, we have without fail taken the case en banc to reverse that ruling. This is true regardless of the diverse regulations that have come before us—from storage restrictions to waiting periods to ammunition restrictions to conceal carry bans to open carry bans to magazine capacity prohibitions—the common thread is our court’s ready willingness to bless any restriction related to guns.”
19F.4th at 1165-1166 (emphasis in original).
Plaintiffs have stated they will file a writ of certiorari with the Supreme Court to appeal the en banc decision. On December 20, 2021, the Ninth Circuit granted plaintiffs’ motion to stay the mandate, which keeps the status quo while a writ of certiorari is filed. So, for the time being, individuals who lawfully own or possess LCMs can keep them while the case is appealed.
Let’s hope the Supreme Court accepts the case and puts a stop to courts treating the Second Amendment as a second-class right. As Judge VanDyke observed in his dissent (19F.4th at 1161):
“So the majority’s rarity balancing isn’t just lopsided—it starts from the wrong premise. We would never treat fundamental rights we care about this way, particularly those expressly enumerated in the Constitution. We don’t protect the free speech of the taciturn less than the loquacious. We don’t protect the free exercise of religion in proportion to how often people go to church. We wouldn’t even allow soldiers to be quartered only in those parts of your house you don’t use much. Express constitutional rights by their nature draw brighter and more prophylactic lines—precisely because those who recognized them were concerned that people like California’s government and the judges on our court will attempt to pare back a right they no longer find useful.”
The information contained in this article is for general informational and educational purposes only and is not intended to be construed or used as legal advice or as legal opinion. You should not rely or act on any information contained in this article without first seeking the advice of an attorney.
About the author
Johanna Reeves is the founding partner of the law firm Reeves & Dola, LLP in Washington, DC (www.reevesdola.com). For more than 17 years she has dedicated her practice to advising and representing U.S. companies on compliance matters arising under the federal firearms laws and U.S. export controls. Since 2016 she has served as a member of the Defense Trade Advisory Group (DTAG). From 2011 through 2020, Johanna served as Executive Director for the Firearms and Ammunition Import/Export Roundtable (F.A.I.R.) Trade Group and she continues to serve in an advisory role. Johanna can be reached at email@example.com or 202-715-9941.
|This article first appeared in Small Arms Review V26N4 (April 2022)