En Banc Ninth Circuit Upholds California's Large-Capacity Magazine Ban

  • Date:
  • December 01, 2021

In a major decision issued yesterday, the en banc Ninth Circuit upheld California’s ban on large-capacity magazines. By a 7-4 vote in Duncan v. Bonta, the court ruled that intermediate scrutiny applied to California’s law and that the provision was a reasonable fit with the government’s goal of preventing gun violence. I’ve previously written about the district court decision striking down the ban here and the original appellate panel affirming that decision here and here. The Supreme Court is already holding one case concerning large-capacity magazines, and Duncan may increase the chances the Court decides to hear that case.

We’ll be writing more about the case, and especially the interesting back-and-forth over the merits of the Two Part Framework vs. the Text, History, and Tradition test, but for now here is the Ninth Circuit’s description of its holding in the case:

[W]e hold:

(1) Under the Second Amendment, intermediate scrutiny applies, and section 32310 is a reasonable fit for the important government interest of reducing gun violence. The statute outlaws no weapon, but only limits the size of the magazine that may be used with firearms, and the record demonstrates (a) that the limitation interferes only minimally with the core right of self-defense, as there is no evidence that anyone ever has been unable to defend his or her home and family due to the lack of a large-capacity magazine; and (b) that the limitation saves lives. About three-quarters of mass shooters possess their weapons and large-capacity magazines lawfully. In the past half-century, large-capacity magazines have been used in about three-quarters of gun massacres with 10 or more deaths and in 100 percent of gun massacres with 20 or more deaths, and more than twice as many people have been killed or injured in mass shootings that involved a large-capacity magazine as compared with mass shootings that involved a smaller-capacity magazine. Accordingly, the ban on legal possession of large-capacity magazines reasonably supports California’s effort to reduce the devastating damage wrought by mass shootings.

(2) Section 32310 does not, on its face, effect a taking. The government acquires nothing by virtue of the limitation on the capacity of magazines, and because owners may modify or sell their nonconforming magazines, the law does not deprive owners of all economic use.

(3) Plaintiffs’ due process claim essentially restates the takings claim, and it fails for the same reasons.