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By Larry Keane

The second-class treatment of Second Amendment rights continues.

The U.S. Court of Appeals for the Ninth Circuit in Duncan v. Bonta ruled en banc that California’s ban on standard capacity magazines does not violate the Second Amendment, overturning a lower court decision that held the ban was unconstitutional. The Ninth Circuit ignores historical context, and cherry-picks language and clings to alternatives to “allow” gun owners to possess restricted magazines and continues to use an interest-weighing test rejected by the U.S. Supreme Court in District of Columbia v. Heller.

The case is ripe for a petition to the U.S. Supreme Court. The firearm industry is disappointed by the Ninth Circuit’s ruling, but not entirely surprised. NSSF filed an amicus brief supporting the challenge to California’s ban on standard capacity magazines capable of holding more than 10 rounds. The law was ruled unconstitutional by U.S. District Court Judge Roger Benitez. That decision was upheld by a three-judge panel at the Ninth Circuit, but the full court voted 7-4 that the law holds.

Parsing Words

NSSF argued in our amicus brief that California’s magazine ban severely restricts citizens’ Second Amendment rights because the state said that Second Amendment protections only applied to arms in “common use” for a particular purpose, such as self-defense. However, that’s not a requirement dictated by the Second Amendment. Nor did the Heller decision determine they need to be in “common use” for a stipulated purpose. In fact, the standard is commonly-owned. If that standard is properly applied, it makes California, and the seven other states with magazine bans, an outlier.

Magazines capable of holding more than 10 rounds are nearly universally chosen by tens of millions of law-abiding gun owners for lawful purposes including, but not limited to, self-defense. Over 133 million standard 30-round capacity magazines are in circulation, representing more than half the magazines used in firearms today.

That number would likely be much higher if states like California didn’t ban them. That was clear in the short time period when Judge Benitez struck the law as unconstitutional and before he issued a stay on his own decision, as the San Francisco Chronicle estimated hundreds of thousands may have been sold as Californians leaped at the opportunity to legally purchase magazines they deemed appropriate for their needs.

California contends the ban on standard magazines is Constitutionally viable since alternatives of magazines with restricted capacity are available. In other words, the state still “allows” gun owners to purchase and maintain magazines capable of holding just 10 rounds. That’s not what Heller holds, though.

high capacity magazines
Things Californians still can’t buy. (Dan Z. for TTAG)

Let’s be honest. If antigun politicians succeed in limiting magazine capacity, they will then seek to ban how many lesser capacity magazines you should be allowed to own. “No one needs more than this many magazines,” they will say.

Aside from the egregiously wrong notion that the government “allows” rights to be exercised, Heller clearly rules out alternative choices as an option. That’s a right retained by individuals, as Heller upheld the Second Amendment as an individual right and not a government choice of alternatives.

Whose Interest?

The Ninth Circuit’s decision clearly spells out that the court continues to use an interest-weighing test expressly rejected by the majority in the Heller decision. The three-judge panel initially found that California’s magazine ban, “simply cannot pass constitutional muster, whether analyzed under strict or immediate scrutiny.”

The full court, however, ignored that. The decision reads, in part, “The court applied a two-step framework to review the Second Amendment challenge…” and “…determined that intermediate scrutiny applied because the ban imposed only a minimal burden on the core Second Amendment right to keep and bear arms.”

Judge Patrick Bumatay in his dissenting opinion joined by two other judges addressed the majority’s improper use of “tiers-of-scrutiny” interest-balancing test describing it, “as nothing more than a black box used by judges to uphold favored laws and strike down disfavored ones.” Judge Lawrence VanDyke in his dissenting opinion wrote, “The majority of our court distrusts gun owners and thinks the Second Amendment is a vestigial organ of their living constitution” and their test is, “too elastic to impose any discipline on judges who fundamentally disagree with the need to keep and bear arms.”

The late Justice Antonin Scalia, however, expressly rejected the interest-balancing tests for enumerated rights that subject that right to strict or immediate scrutiny.

“We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach,” Justice Scalia wrote in the majority opinion. “The very enumeration of the right takes out of the hands of government – even the Third Branch of Government – the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.”

In this March 31, 1998, file photo, Sen. Dianne Feinstein, D-Calif., examines a magazine from an AK-47 during a Capitol Hill news conference where she announced the introduction of legislation that would prohibit the sale of ammunition magazines carrying more than 10 rounds. (AP Photo/Khue Bui, File)

Underlying all of this is California’s argument that standard capacity magazines must be banned because they were used in horrific crimes. The tragic events foisted on innocents by criminals are indeed abhorrent. None of it, though, predicates that the criminal misuse of a lawful product necessitates the denial of rights by those who obey the law.

Simply put, just because a criminal commits a crime doesn’t mean everyone else loses their rights. If criminal misuse of firearms was the touchstone for constitutionality, the Second Amendment would cease to exist.

That cuts to the heart of what California and their gun control allies are doing. This isn’t just about restricting magazines. This is another attempt to erase Second Amendment rights, first by relegating them to second-rate status, then eliminating them altogether.

 

Larry Keane is SVP for Government and Public Affairs, Assistant Secretary and General Counsel of the National Shooting Sports Foundation.

 

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47 COMMENTS

  1. so if the circuit courts are worthless and the supreme court won’t take the cases and moves at a glacial pace anyway, what’s the recourse here? none is the answer…

    • Defund the state of California. California is importing illegals and giving them free food, college educations, housing, medical care, etc. Half of America’s homeless have immigrated to California over the last five years. The financial burden of all this has been put on a shrinking tax base because of California’s hostility toward business, which, like the productive tax payers, have/are/will leave the state. California lost two electoral votes (house reps) in the last census; the first time in 170 years it has shrunk instead of grown. Take your work, your vote, and your tax dollars and leave. Let the stupid leftists rot and burn.

  2. Oh my, the Ninth Supreme Court went rogue and ignored precedent….again. This is my surprised face.

    For some totally F’d up demographical reason Montana is included within the 9th’s purview…WTF?

    Yup, The same Court that, for years, routinely had their “meetings” in Hawaii (bringing their families along for morale).

    • For some totally F’d up demographical reason Montana is included within the 9th’s purview…WTF?

      Idaho as well. I don’t believe the free people of Idaho or Montana care much about the Ninth.

      • Planning on moving there myself but all things cost money on the earth.

        If I have no other means, I may just get a cheap camper and drive up there. I can live out of it until I find housing and employment. 🙂

  3. Do those arguing for magazine bans and the like have to show up adorned in sheets, pointed hats and swastikas before people see this Gun Control clown show for what it is?

    Any attorney arguing for The 2A who does not stand and define Gun Control by its History of racism and genocide is a loser.

    • Debbie W.,

      Do those arguing for magazine bans and the like have to show up adorned in sheets, pointed hats and swastikas before people see this Gun Control clown show for what it is?

      Yes.

      Next question.

      • The same political party that used those white sheets and pointed hats as their violent activist arm’s apparel is the one trying to say that they can ban stuff they do not like such as magazines that hold too many rounds. Argue all you like but the same party that banned guns from black citizens in the south to protect their precious KKK is still wanting to advance their point of view.

        Please tell me that this is headed to the pipeline for SCOTUS.

  4. TTAG’s own LKB seems to be of the opinion we may see the appetite the SCotUS has for 2A cases on whether or not a few cases up for consideration of Cert. are granted or denied, after the NY Pistol carry case is decided in June…

  5. The Cali mag ban applies to handguns as well. So how many 10+ mags for handguns are in circulation in the US today, adding to the millions of AR mags?

  6. No surprise here as the corrupt courts view guns as a threat to their absolute power over the people. Once again 2A is and always has been a total joke as the courts have changed horses so many times its hard to keep count. Remember the NFA act of the 30’s that claimed only military weapons were protected by 2A? That was to uphold a ban on short barreled shotguns which they claimed the military never used which of course was a laughable bold face lie.

    The corrupt court then reversed themselves to uphold the Clinton Semi-auto Ban which reversed a previous ruling claiming “Only sporting guns were protected by 2A”.

    And the Scalia decision claimed that the corrupt courts had the power to “regulate” firearms, which was double talk for restrict or ban. This falls under the bump stock ban. Thank the disingenuous Scalia for that one.

    • dacian, The 2nd Amendment is only a joe to the 9th Circuit which is the most overturned circuit in the US Federal Court system. To you, any court that does not uphold your Leftist-Socialist ideology is “corrupt.” I suggest you read the Constitution, the Federalist Papers and the Anti-Federalist Papers. Scalia made no such decision. IN FACT: The late Justice Antonin Scalia, however, expressly rejected the interest-balancing tests for enumerated rights that subject that right to strict or immediate scrutiny. It’s you Leftists who hae tried to pervert Justice Scalia’s decision to fit your anti-gun radical agenda and your need to control the people.

      • To Walter Jed Clampet of the Beverly Hillbillies

        Yes Scalia did indeed pull a fast one on gun owners as he clearly states the courts have the right to regulate the manufacture and sale and qualifications of owning firearms as well as requiring safe storage of firearms.

        The Second Amendment right is not absolute and a wide range of gun control laws remain “presumptively lawful,” according to the Court. These include laws that (1) prohibit carrying concealed weapons, (2) prohibit gun possession by felons or the mentally retarded, (3) prohibit carrying firearms in sensitive places such as schools and government buildings, (4) impose “conditions and qualifications on the commercial sale of arms,” (5) prohibit “dangerous and unusual weapons,” and (6) regulate firearm storage to prevent accidents. Justice Scalia wrote the majority opinion. He was joined by Justices Alito, Kennedy, Roberts, and Thomas.

        • OK, dacian the dimwit, I was forced, earlier, to grudgingly acknowledge that you had ALMOST made a point, but you obviously have exactly zero understanding of the legal concept of ‘standard of review’, or its importance to appelate law (wait, let’s make it simple – ” . . . you obviously have exactly zero understanding.”), but it is a huge issue.

          Thanks for playing, dimwit.

        • dacian, the dunce, Nice try, but you are dead wrong. As usual you anti-gun nuts have taken Scalia’s words out of context to fit your anti-gun agenda and seize control of the population. You Lefties have become adept at picking what you like and discarding the rest.
          Talking about “dimwits”, with you, the lights can’t even be turned on.

    • “And the Scalia decision claimed that the corrupt courts had the power to “regulate” firearms“

      Well yeah, the second amendment has an explicit requirement for a “well regulated militia”, both organized and unorganized.

      And as Webster’s dictionary of 1828 tells us, ‘regulated’ means “subject to rule or restriction”.

      I can understand your confusion, most gun rights advocates intentionally omit the majority of the Second Amendment text, choosing to focus on the very last line, “shall not be infringed” while ignoring the preparatory clause upon which the entire right is predicated.

      I’m glad I could clear that up for you.

      • Miner49er Wrong yet again. Have you ever bothered to read the Heller or McCondal Decisions? The preparatory (preamble) clause sets the stage for the right granted to the people. It is an INDIVIDUAL right.
        Actually you misspoke, again.

        • Walter,

          MinorIQ has been trying to peddle this ungrammatical, ahistorical line of BS for so long I’ve lost track – only ramping up his pathetic efforts when SCOTUS b****-slapped his stupid argument into the weeds in Heller. Why he keeps trying to sell package bovine feces and swear it’s vanilla ice cream, only MinorIQ (and possibly his therapist, if he can afford one) is a puzzling question about mental health.

        • LampofDiogenes. I could not agree more, but there are some people her that will swallow his nonsensical ideas and has to be countered each time just as dacian.
          I don’t think either of them deals from a full deck.

      • You forgot to mention the other definition of “well regulated” which is “in good working order” or in this case, well trained.

        Im glad I could clear that up for you.

      • For Miner; your false theory has been debunked many times, to include here on TTAG articles and comments. Yet, you continue to come back and spread your falsehoods, hoping that some new or uninformed reader might believe you. I can continue to debunk your repeated lies, but I will instead take a move from your playbook and just copy and paste a relevant statement (with a link). Enjoy,

        “The Second Amendment is now among the most misunderstood provisions of the Constitution,” he said. “There are two schools of interpretation now: one that it’s about the right of individuals and the other that it’s about the right of a state to have a militia. Last year the U.S. Court of Appeals for the Fifth Circuit became the first court to adopt the correct view: it’s an individual right.” The operative phrase in the Amendment is “the right of the people to keep and bear arms shall not be infringed,” Lund said. The prefatory phrase about militias is “an ablative absolute clause giving context for the main clause,” and is illuminating in that function. “The Second Amendment does not say it protects the right of state militias to bear arms,” he noted.

        https://www.law.virginia.edu/news/2001_02/amendment.htm

        • Ragnar,

          Thanks for doing the research, but MinorIQ is beyond help. No matter how many times you rub his nose in the facts, he returns to his idiot, debunked argument like a dog returns to its vomit. It’s the only argument he’s got, so he won’t abandon it, no matter how many times its proven specious.

          But, noble effort on your part!

        • Sorry gents, but Justice Scalia made clear that gun regulations, rules and restrictions are entirely constitutional regardless of what you think:

          “Indeed, 60 percent of the judicial decisions in our data set quote, at least in part, the passage in Scalia’s opinion in which he explains that the Second Amendment, “[l]ike most rights, … is not unlimited.” Scalia went on to write:

          Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
          This language from Heller gives constitutional blessing to a potentially wide range of regulation. So it should be unsurprising that the vast majority of the cases citing it go on to reject the Second Amendment claim and uphold the challenged law. Even when courts do not explicitly cite this particular passage in upholding gun laws, they often rely on other precedents that do so. That explains why the percentage of cases citing it has been steadily declining, as courts start to cite their own prior decisions that incorporate Heller’s list of exceptions.

          The frequency of citations to the “longstanding prohibitions” passage helps explain why the success rate for Second Amendment claims is so low. For example, 24 percent of the challenges in our set are to felon-in-possession laws, which Scalia specifically singled out as appropriate; of those, 99 percent are losers.“

          https://www.vox.com/platform/amp/the-big-idea/2018/5/23/17383644/second-2nd-amendment-gun-control-debate-santa-fe-parkland-heller-anniversary-constitution

        • Ragnar, Oh, yeah, VOX. A real reliable source. NOT! VOX is part of the Leftist-Socialist propaganda machine stipping out garbage 99% of the itme.

        • MinorIQ,

          It would almost be unfair of me to point out that SCOTUS has upheld laws and regulations infringing ALL of the rights “guaranteed” under the BoR under various exigent circumstances (note, for example, that U.S. citizens have been deprived of the right to counsel under the Patriot Act). Doesn’t mean (a) that SCOTUS was right to do so, or (b) that they accurately evaluate the right vs. the infringement. What you seem to be deliberately eliding is the FACT that SCOTUS in Heller declared, CATEGORICALLY, that the RKBA was an INDIVIDUAL right. Which destroys your inane “militia” arguments conclusively . . . as I’ve done many times on this board, and which you continue to ignore. Your argument is dogs***. History, contemporaneous records, common sense, SCOTUS, and basic English grammar all prove you hilariously wrong, but you keep coming back with the same weak nonsense. Get a better line of BS, or give up the fight.

        • LampOfDiogenes Counselor. If you expect Ragnar to accept that the Supreme Court has the FINAL say on these matters, you are mistaken. The Anti-Gun Radicals have no clue. They want what they want because they want it. They are like a child who wants a lollypop but mommy says, “No.”It’s all about their blatant attempts to control the population, and to get and maintain power. These people will never give up until they jack knife into Abraham’s bosom. But I agree with you WE MUST KEEP FIGHTING THESE POWER GRABBERS.

      • MinorIQ,

        Since you’re so fond of dictionaries, look up the definiition of “prefatory clause”. Then explain, in grammatical terms, your use of the term “requirement”. Oh, and do a little research on principles of statutory interpretation. Bluntly, even if SCOTUS hadn’t EXPLICITLY said you are full of s***, any person with an IQ above room temperature would be aware that your argument is male bovine excrement.

        As others have pointed out, your idiot attempt to apply PART of a (much later) definition of “regulated” is both insane cherry-picking nonsense, AND blatantly dishonest.

        All that you “cleared up” is that you are a sanguinary perpetrator of terminological inexactitudes. I should at least acknowledge the persistence of your illogical, ungrammatical, ahistorical nonsense, but it reminds me too much of Einstein’s definition of insanity. Get help.

    • You seemed to have an almost sexual thrill attitude from posting stupid stuff. Do we need to add another letter to LGBTQ+ just for you?

      • “You seemed to have an almost sexual thrill… “

        We’re talking legal decisions and you bring LGBTQ sex into the discussion?

        You offer a fascinating view of your interior dialogue and priorities, fascinating…

        • Miner49er, Oh, Please Tell us you are kidding. Since when did LGBTQ get into the converstation. Seems you have sexual ideations all the time?

        • Walt, you need to talk with your optometrist if you missed this post:

          “40 cal Booger
          December 4, 2021 At 10:53
          You seemed to have an almost sexual thrill attitude from posting stupid stuff. Do we need to add another letter to LGBTQ+ just for you?“

        • Miner49er I stand corrected, but LampOfDiogenes is right. You still have no clue about the 2nd Amendment and what it means. The preamble is perfunctory and has no bearing on the individual right to bear arms.
          Why are you so afraid of a gun? Are you like Baldwin and think it will fire itself?
          Maybe you have spent too much time in that California sun?

    • dacian the demented,

      Well, I guess even a blind squirrel occasionally finds a nut. Your exlication is cherry-picked and borderline psychotic, but your conclusion is not wrong – mirabile dictu.

  7. I have zero faith in the U.S. Supreme Court. They will simply let this lower court ruling stand. Every last politician hates the Second Amendment, and they will have no problems with doing everything in their power (Constitutional or not) to get rid of it. Never mind the irony that the Second Amendment is there because of actions like this.

    • Shadow,

      I share your concerns.

      Serious question for legal-beagle types:

      Suppose the U.S. Supreme Court rules in May 2022 (on the New York case) that the Second Amendment really is a first-class right and the Courts must use “strict scrutiny” (or something equivalent) on all Second Amendment cases.

      Does that help this case? Can the U.S. Supreme Court simply order the Ninth Circus to revisit this case and apply “strict scrutiny” without the U.S. Supreme Court having to actually take-on the case through its entire formal process?

      • Yes…. and they will come to the same conclusion: >10 round magazines are evil. Do not mistake these people for rational or fair human beings. Barrett may recuse herself for her personal beliefs but you will NEVER see a leftist judge do the same. The leftist agenda is just too important for them to recuse themselves. They will “sacrifice” their “integrity” for the greater good. They will say there is no need to thank them for the magnanimous sacrifice of your rights. They are simply doing their duty, as an elite, to you,…. the little people. It IS the socially responsible thing to do after all, because with great power comes great social responsibility.

  8. “Ninth Circuit Ignored the Heller Ruling”

    well, of course they did, its what the 9th does and its a predictable thing with them and I’m not sure why people were hoping other wise.

  9. Read the following report to learn how a single-mom with 3 kids was able to generate $89,844 of annual SSD income working in her spare time online from her home without selling…….

    check it out…… http://Www.Works16.com

  10. Do not fear…the SC is already holding 20-1507, challenge to NJ 10 round limit. Maybe they were holding to see what the enbanc decision would be for this?

    Cant stop the message, the 2A will persevere!!!!

  11. Am I alone in thinking this will turn out to be a good thing?
    We now have a split between the SCOTUS and the Ninth Circus, history shows which way this will most probably turn out.

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