Yesterday, I wrote about the Ninth’s Circuit’s decision in Duncan v. Becerra, striking down CA’s ban on large-capacity magazines (LCMs). Today I offer a few observations from my reading of the case.
First, I think the bulk of the majority’s analysis at step one of the two-part step is helpful and mostly accurate. It’s useful to have a court lay out all the analysis in step one, which helps to show the two-part framework is really that—a framework—and not a wooden or formal “test.” Many courts of appeals “assume without deciding” that certain conduct is covered at step one because they ultimately declare the law constitutional under step two. But because the panel here struck down the law, it had to do the analysis at step one. That, in turn, provides useful guidance for policymakers, advocates, scholars, and future courts.
Turning to the specifics of the step-one analysis, I think the court was correct that the “common use” test is not a standalone test for constitutionality, but simply one part of the step-one inquiry into whether an arm is “dangerous and unusual.” In other words, the common-use test is a coverage test, not (like the district court had it) a protection one. It tells you what falls within the scope of the Second Amendment, but does not end the inquiry into constitutionality. But I think the panel is not altogether convincing in its repeated invocation of the number of LCMs in existence as proof of this commonality point. After all, just because an accessory comes “standard” with a product doesn’t mean much about whether that accessory would be chosen by consumers if asked or whether that accessory was important or meaningful in their selection of the product. Besides, there’s something a little awkward about having constitutional coverage standards set by commercial manufacturing interests. There’s nothing stopping manufacturers from including 30-round magazines as standard; why the constitutional bar should vary with that decision is not entirely clear to me.
Second, I was much less persuaded by the panel’s discussion of step two. In my view, much of the panel’s language was far too broad. It cannot be the case—or at least it doesn’t seem to be in the rest of the country or the rest of the Ninth Circuit’s doctrine—that a law “adversely affecting” the right to home gun ownership strikes at the core of the Second Amendment. Even if the panel’s statement only applies to cases in which the weapon itself is regulated, as opposed to laws like the DV misdemeanor prohibitor that clearly “adversely affects” possession in the home (by prohibiting it), this doesn’t seem right. The panel doesn’t discuss or distinguish other instances that clearly do affect such rights, like the federal law prohibiting home possession of firearms with obliterated/altered serial numbers. The Third Circuit upheld that law ten years ago in United States v. Marzzarrella after applying intermediate scrutiny and in terms that make it seem like such a law doesn’t strike at the core self-defense purpose. In my view, not every regulation on an “arm” in the home strikes at the core.
Relatedly, I found the court’s discussion of substantial burden entirely unconvincing. It declined to assess how the ban impacted the right to armed self-defense. In my view, there’s just no way to talk about whether something is a substantial burden on the exercise of the right without talking about how it actually affects the right. That is not a “policy” argument, as the panel says, at least no more than any of constitutional law is (shout-out to Eric Segall). Inquiries into the degree of a burden happen everywhere. As Alan Brownstein put it in his comprehensive article cataloguing how constitutional rights are infringed:
Even a cursory survey of Supreme Court case law examining such diverse areas as the right to marry, the right of political association, property rights, the free exercise of religion, freedom from the establishment of religion, and procedural due process demonstrates that the Court has frequently employed a basic undue burden analysis to evaluate laws alleged to abridge a wide range of constitutionally protected interests.
The panel thinks these questions are off limits, but to me they are the heart of the inquiry. What the substantial-burden assessment really entails is an analysis of the extent to which the right is limited, restriction, or burdened. One can’t answer that at the level of conceptual analysis.
For example, suppose that a gun manufacturer runs a promotion in which it throws in a free 100-round magazine as a special incentive for consumers to purchase weapons during a particular sales period. Then assume that during that period millions of guns are sold and so millions of 100-round magazines become lawfully possessed (let’s assume the manufacturer only ships to the many states with no magazine restrictions). We might then conclude that under step one, those magazines fall within the Second Amendment’s scope because they are, by virtue of the promotional giveaway, commonly possessed by law-abiding citizens. After all, Justice Alito in his Caetano concurrence said that the “hundreds of thousands” of stun guns sold to private citizens meant those were common enough under this test. But suppose it turns out that no one uses a 100-round magazine for self-defense purposes–indeed, some gun-rights advocates note that certain types of 100-round magazines are “unpopular because of [their] weight, expense, and propensity to jam.” If that’s all true, then a ban on such a magazine would not be a substantial burden on the self-defense-infused Second Amendment right, no matter how commonly such magazines were possessed by law-abiding citizens. To me, the panel opinion’s discussion of substantial burden doesn’t deal with the real questions about what it means to actually restrict or infringe a right.