Last year a federal district court in California became the first federal court to conclude that a ban on magazines holding more than 10 rounds violates the Second Amendment. A few weeks ago, in Duncan v. Becerra, a panel of the Ninth Circuit became the first federal appellate court to do so. Before this decision, the six circuits that had addressed the question—the First, Second, Third, Fourth, Seventh, and D.C. Circuits—all upheld such bans. (Most recently, Colorado’s Supreme Court upheld a magazine ban against a state constitutional challenge in July.) This post lays out the important parts of the court’s decision. In one tomorrow, I offer some observations and thoughts on the court’s analysis.
The California legislature originally passed its ban on large-capacity magazines (“LCMs”) in July 1999, three months after the Columbine shootings. That first law banned only the manufacture, importation, and sale of LCMs, but the state slowly increased restrictions in later years. At issue in Duncan was a statute that, as a result of a 2016 amendment to the law, prohibited nearly all possession of LCMs in California and did not grandfather in LCMs lawfully owned prior to the ban.
The panel’s opinion striking down this law was not unanimous. Judge Kenneth Lee wrote the opinion for the majority, and he was joined by Judge Consuelo Callahan. Judge Barbara Lynn, Chief Judge for the Northern District of Texas, and sitting by designation, dissented.
Judge Lee’s opinion for the panel is notable for many reasons, but one of the more striking to me is the difference in style and tone from the district court’s order. Judge Lee’s opinion distilled three independent holdings from the district court’s opinion relevant to the appeal: (1) the LCM ban failed Heller’s “simple test” that (according to the district court) immunizes “common-use” weapons from prohibition, (2) the LCM ban fails strict scrutiny, and (3) even if intermediate scrutiny were the proper standard, the law would still fail.
The panel agreed with the district court on points (2) and (3), but dismissed the first ground. “We note that the district court’s ‘simple Heller test’ conflicts with our court’s two-step inquiry framework for the Second Amendment” (p15). (Judge Lee did nonetheless cite a dissent from Justice Thomas critiquing the two-step framework.)
Judge Lee first helpfully described the contours of the Ninth Circuit’s two-step framework. It requires the court to first determine whether the Second Amendment applies, and then, if so, determine the appropriate level of scrutiny. At the first step, Judge Lee identified four questions: (1) is the product in question an “arm,” (2) is that arm “both dangerous and unusual,” (3) is the regulation “longstanding and thus presumptively lawful,” and (4) is there “any persuasive historical evidence in the record showing that the regulation affects rights that fall outside the scope of the Second Amendment” (pp18-19). If the answer to question one is “no,” the government wins; if the answer to questions two, three, or four are “yes,” the government wins. Any other answer moves to step two. At step two, the court asks two more questions to decide the proper level of scrutiny to apply: (1) does the regulation come close “to the core right of law-abiding citizens to defend hearth and home” (p19), and (2) does the law impose a substantial burden on that right. The answer to both questions must be “yes” before a court applies strict scrutiny. A “no” to either results in intermediate scrutiny.
Applying Step One
In applying step one of this analysis, the panel addressed each of the four questions.
Because the first step led to the conclusion that LCMs fall within the scope of the Second Amendment, the court moved to step two.
Applying Step Two
In applying the step-two analysis, the court addressed the two additional questions.
Because it concluded that the law is a substantial burden on the core right, the panel applied strict scrutiny. And the law failed that test because it is not tailored to the government’s interest. The law provided no relevant exceptions and did not grandfather lawful possession in. “There is also no stopping point to the state’s argument. Under its logic, California could limit magazines to as few as three bullets and not substantially burden Second Amendment rights because, on average, 2.2 bullets are used in every defensive encounter according to one study” (p49).
The panel also concluded that, for essentially the same reasons of breadth and scope, the law would have failed intermediate scrutiny. It also criticized other circuits for watering down what real intermediate requires. “Whatever its precise contours might be, intermediate scrutiny cannot approximate the deference of rational basis review” (61).
In her dissent, Judge Lynn parted ways with the majority most forcefully on whether the law imposed a substantial burden on the right. LCMs are not, according to the dissent, a “class of arms” and nothing in the law regulates or restricts the rights of Californians to use magazines with fewer than ten rounds. Although Heller might foreclose reliance on another class of arms to prove constitutionality—like rifles if handguns are banned—the dissent says intra-class alternatives are very relevant to the degree of the burden.
I suspect the state may be interested in seeking review before an en banc panel of the Ninth Circuit. Even though the majority of judges on the Ninth Circuit were appointed by Democratic presidents, the circuit’s unique way of handling en banc cases (in which fewer than all judges participate) means that it is possible for the en banc panel to still be populated with more Republican-president appointed judges. The case could be far from over, but it certainly signals an important development in the Second Amendment case law.