Ninth Circuit vacates decision striking down California's magazine restrictions

March 3, 2021


Matthew Hoy

Last week the Ninth Circuit Court of Appeals vacated the 2-1 panel decision handed down last August in Duncan v. Becerra that found that California's arbitrary ban on magazines holding more than 10 rounds was an unconstitutional infringement on Second Amendment rights.

A majority of the judges on the Ninth Circuit, despite the best efforts of former President Donald Trump, are still very left-leaning and voting to overturn pro-Second Amendment panel decisions via the en banc process are commonplace (See: Peruta). Online/Virtual oral arguments for the rehearing are scheduled for the week of June 21, 2001.

A final ruling, and potentially an inevitable appeal to the Supreme Court, could be a year or more away. Over at the message board thread on the case, they've determined that the chances of getting a majority of Republican-nominated judges on the panel is 24.9%.

A loss on the pro-gun side would mean a certain appeal to the Supreme Court. If Second Amendment advocates beat the odds on panel selection and get a favorable ruling, then it's possible that the State of California might not appeal given the current composition of the court.

The 'Logic' of Magazine Restrictions

Over at Reason magazine, Jacob Sullum has an article arguing—likely in vain—that the Ninth Circuit demand some sort of evidence from the State of California that their magazine restrictions actually do what they claim they do, rather than just the conjecture they presented at the district court and Ninth Circuit panel arguments.

If a complete ban on possession of arms commonly used for lawful purposes is automatically unconstitutional, as Benitez suggested, the costs and benefits of that policy don't affect the legal analysis. But otherwise, they matter a lot. Under "strict scrutiny," the standard that the 9th Circuit panel deemed appropriate, California's law must be "narrowly tailored" to advance a compelling government interest. Under "intermediate scrutiny," which the panel also considered for the sake of argument, the law "must be substantially related to an important governmental objective." Either way, there has to be some fit between means and ends.

Becerra not only ignores the costs of California's LCM ban; he musters almost no evidence of its benefits. "The quality of the evidence relied on by the State is remarkably thin," [Judge Roger] Benitez noted, and the 9th Circuit panel agreed.

After describing two of California Attorney General Xavier Becerra's bits of evidence for the ban which don't really support a widespread, blanket ban, since in the majority of the cases magazine capacity was irrelevant—most mass shooters used more than one firearm—Sullum closes with this.

Once you go beyond Becerra's vague invocation of "horrific mass shootings," the public safety benefit of California's ban on possession of LCMs is not merely speculative; it may well be nonexistent. Since Becerra assigns zero weight to the Second Amendment rights of Californians affected by the ban, that is good enough for him. The 9th Circuit, which has a duty to protect those rights, should demand more.

The Ninth Circuit should demand more, but when it comes to the Second Amendment, they are a super-legislature imposing their own policy judgments, so they will likely not.

What about Magazines currently lawfully owned?

One of the recent changes to California law that spurred the lawsuit was part of Proposition 63, passed by California voters in 2016. When California banned the sale, importation or construction of magazines that hold more than 10 rounds by Californians back in 2000, possession of them was not banned. People who already had so-called large capacity magazines were allowed to keep them. Proposition 63 added "possession" to the list, but did not offer any compensation for depriving people of property that they'd legally owned for nearly two decades.

In the time period between the two measures, the State of California could not point to a single, legally owned 10+ round magazine that had been used in the commission of a crime.

Judge Benitez's injunction against the enforcement of the ban on "possession" is still in force. In the likely event that an anti-gun Ninth Circuit finds that the state's magazine limit doesn't violate the Second Amendment, it will likely send the question of the possession ban back to the district court to be looked at in light of the Fourth Amendment which prohibits the government from depriving people of property without compensation. Neither the district court, nor the three judge panel addressed this issue, because both found the entire law violated the Second Amendment.

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