9th Circuit upholds California Standard Capacity Magazine Ban

November 30, 2021


Matthew Hoy

The 9th Circuit on Tuesday upheld California's ban on standard capacity magazines that hold more than 10 rounds and rejected claims that forcing owners of such magazines to rid themselves of them amount to a taking under the Fifth Amendment.

"[T]he ban on legal possession of large-capacity magazines reasonably supports California’s effort to reduce the devastating damage wrought by mass shootings," wrote Judge Susan Graber, a Clinton appointee.

Graber, writing for the majority in Duncan v. Bonta, also upheld the part of the California law forcing those who legally owned standard-capacity magazines acquired before the ban to divest themselves of them. Plaintiffs had argued that the provision amounted to a government taking, but the majority held that since the law did not "deprive owners of all economic use" [emphasis added] then it isn't a taking.

The ruling overturns a three-judge panel decision that had found the ban unconstitutional.

CRPA Responds

In a statement issued shortly after the ruling, California Rifle & Pistol Association President Chuck Michel vowed to take the case to the Supreme Court.

We are truly disappointed that the Ninth Circuit en banc panel decided to go against the solid constitutional reasoning of other judges to strike down this win for gun owners. We will be appealing to the Supreme Court for a final determination because gun owners deserve to have someone fighting for them and their rights. The Second Amendment is a fundamental right, and it is time that courts stop treating that right like a second-class gift from government.

The CRPA was behind the original lawsuit and the announcement that they will skip an appeal to the full en banc of the 9th Circuit should mean a relatively quick trip to the Supreme Court. A similar case, ANJRPC v. Grewal, on New Jersey's similar ban on standard capacity magazines is currently awaiting consideration at the high court.

No surprises

It should come as little surprise that the same court that just months ago read "and bear" out of the Second Amendment completely, would find ample justification for upholding the California law wherever it chose to look.

As Judge Lawrence VanDyke, a Trump appointee, noted in his dissent:

Here are the facts: 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. Respectfully, Judge [Andrew] Hurwitz’s claim that our judges’ personal views about the Second Amendment and guns have not affected our jurisprudence is simply not plausible. Res ipsa loquitur.

I'd encourage readers to read VanDyke's dissent in full. It is a tour de force.

If you have a banned magazine, what now?

The CRPA has indicated that they will request a stay of the decision until they have a chance to appeal to the Supreme Court. For now, Californians who have the banned magazines don't immediately need to destroy them, modify them, ship them out of state, or turn them over to the police.

Sit tight. This isn't yet the end.

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