By Chuck Michel
Yesterday an 11-judge panel, sitting en banc, heard oral arguments in Duncan v. Bonta (formerly Duncan v. Becerra). The California Rifle & Pistol Association lawsuit, which challenges California’s flat ban on magazines capable of holding more than 10 rounds of ammunition, was the first successful constitutional challenge to bans on so-called “large-capacity magazines” in the country.
But with a likely unfriendly en banc panel — composed of seven judges appointed by Democrats and just four appointed by Republicans — that victory hangs in the balance.
As reported previously, a three-judge panel of the Ninth Circuit held in August 2020 that California’s ban on standard-capacity magazines is unconstitutional. That decision struck down California’s statewide prohibitions on both possessing and acquiring such magazines and, in doing so, upheld a 2019 decision from the United States District Court in San Diego secured by CRPA and its attorneys at Michel & Associates, P.C.
That decision sparked what we have all come to know as Freedom Week, during which California gun owners lawfully purchased hundreds of thousands — if not millions — of standard-capacity magazines.
The historic Duncan panel decision was, unfortunately, vacated in light of the Ninth Circuit’s decision to rehear the case en banc.
Yesterday’s oral argument sheds some light on what we can expect from the court now. Indeed, as was expected, many of the judges appeared hostile to CRPA’s position that the statewide ban on magazines capable of holding more than 10 rounds violates both the Second Amendment and the Takings Clause.
For instance, several judges focused on how often law-abiding citizens must fire more than 10 rounds in self-defense, seemingly agreeing with DOJ’s claim that that the rarity of such events proves that they are not in “common use” for lawful purposes.
But Judge Lawrence VanDyke, an appointee of President Trump, astutely pointed out that the DOJ is trying to have its cake and eat it, too. As Judge VanDyke observed, the DOJ relies on the relative rarity of defensive gun use requiring over 10 shots to support its position that laws prohibiting standard-capacity magazines only impose the most minor burden and are thus constitutional. While, at the same, the DOJ argues that the government can flatly ban all magazines over ten rounds because of the even more rare circumstance in which the mere seconds it would take to reload a firearm during the already statistically rare mass shooting might result in a life saved.
As attorney Erin Murphy, arguing for CRPA, pointed out, this is not the sort of hypothetical situation that justifies banning constitutionally protected conduct, the least narrowly drawn form of restriction available.
CRPA now awaits yet another ruling on its historic gun-rights lawsuit. The decision could come at any time, but it could be held up in light of New York Rifle & Pistol Association v. Corlett, which the Supreme Court recently agreed to hear and could have a significant impact on Duncan.
But no matter what happens, CRPA is poised to continue its fight against California’s unconstitutional ban on commonly possessed magazines.
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CRPA’s efforts in Duncan and the many other lawsuits fighting for the rights of California gun owners would not be possible without the support of our members and the public. Please help CRPA continue the fight against California’s unconstitutional laws by donating to the CRPA Foundation.