A three-judge panel of the Ninth Circuit Court of Appeals has just ruled for the plaintiffs in Duncan v. Becerra, striking down the state’s “large capacity” magazine ban. Again. You can read the full decision here.
As the opinion notes:
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. United states v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013)
The panel held that under the first prong of the test, 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 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.
The panel held that Cal. Penal Code § 32310 did not survive strict scrutiny review. First, the panel held that the state interests advanced here were compelling: preventing and mitigating gun violence. Second, the panel held that Section 32310 was not narrowly tailored to achieve the compelling state interests it purported to serve because the state’s chosen method – a statewide blanket ban on possession everywhere and for nearly everyone – was not the least restrictive means of achieving the compelling interests.
The panel held that even if intermediate scrutiny were to apply, Cal. Penal Code § 32310 would still fail. The panel held that while the interests expressed by the state qualified as “important,” the means chosen to advance those interests were not substantially related to their service.
Look for a couple of things to happen. First, California Attorney General Xavier Becerra will issue a statement decrying the ruling and announcing that it’s a crime against humanity that endangers the lives of all Californians. He’ll then ask the court for an en banc review of the decision and an order allowing the continued enforcement of the ban while the court considers the case.
In the mean time, look for online retailers to open up the floodgates — again — and start shipping magazines that hold more than 10 rounds into the state just as fast as UPS (and their dwindling inventories) will allow.
Watch this space.
UPDATE: As TTAG’s resident legal counsel LKB notes in the comments below, don’t look for another freedom week resulting from today’s ruling:
The stay against enforcement of the injunction continues until the mandate (the official instructions from the Court) issues. The mandate won’t issue until there has been a ruling on the all-but-certain motion for en banc rehearing. And as the Hawaii open carry case demonstrates, CTA9 is perfectly willing to sit on such requests for, quite literally, years.