California requests en banc hearing to overturn large capacity magazine decision

September 8, 2020

By

Matthew Hoy

As predicted, California Attorney General Xavier Becerra requested en banc review of the 2-1 Ninth Circuit panel decision that struck down the state's 20-year ban on so-called large capacity magazines that hold more than 10 rounds.

Becerra argues that the panel's decision that the limit on the number of rounds a magazine can hold conflicts with decisions from other circuits (it does) and that the standard of review—so-called intermediate scrutiny—unduly burdens the state's ability to pass unconstitutional laws. [That may not be exactly how Becerra characterized it, but it is nonetheless accurate.–ed.]

In the days since Becerra requested the full Ninth Circuit re-hear the case, the usual "gun safety" organizations, along with attorneys for several California cities and counties, have weighed in as well hoping that 11 judges drawn from the historically liberal pool of jurists is more likely to allow continued infringements on Second Amendment rights as they have in the past (see Peruta).

After four years of the Trump presidency, the Ninth Circuit is not as lopsidedly liberal as it once was. The court has a total of 29 appellate jurists, 16 appointed by Democratic presidents, 13 by Republican presidents. Though the political party of the president that nominated the judge isn't always dispositive in determining how they will come down on any particular legal decision, the court's current makeup does present more hope for Second Amendment supporters than they have had in years past.

The next date to mark on your calendar if you are following the case is Sept. 18, when the response from the pro-Second Amendment side is due to be filed in the court of appeals.

Sometime after Sept. 18, the Ninth Circuit's active judges will vote on whether to grant en banc. If a majority vote favors re-hearing the panel's decision, then the panel's decision is void and a re-hearing before 11 judges will be scheduled. That may mean that we could be waiting more than a year before a final decision is made.

Large Capacity Magazine En Banc Timeline at the Ninth Circuit

Another Second Amendment case, Young v. Hawaii challenging that state's de facto ban on openly carrying firearms, has been going through the courts for more than eight years now. In that case, another 2-1 decision, found that the state had improperly denied Young's Second Amendment rights because the state's regulations for approving a permit to openly carry a firearm limits it to those "engaged in the protection of life and property" (typically armed security guards) and people who can demonstrate an "exceptional case." In more than two decades, Hawaii has not issued a single permit to anyone who was not a security guard.

The panel decision in Young was filed July 24, 2018.

The order announcing that En Banc had been approved and scheduling oral arguments was filed Feb. 8, 2019, scheduling oral arguments for March 25, 2019.

Then the Supreme Court announced it would take a Second Amendment case, NYSRPA v. New York City, and many circuits put Second Amendment cases on hold pending the court's ruling. After the Supreme Court punted on NYSRPA and refused to grant certiorari for ten more Second Amendment cases, the wheels of justice began turning again in the lower courts.

Oral arguments on Young are now scheduled for Sept. 24, 2020—later this month.

There is no telling whether a similar delay might happen in this case, but this is an example of what can happen.

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