The Golden State’s blanket ban on ammunition magazines capable of holding more than ten rounds is constitutional, a federal appeals court ruled on Thursday.
A divided en banc panel of the Ninth Circuit Court of Appeals upheld California’s ban on so-called large-capacity magazines. The court split 7-4, with the majority holding that the types of magazines covered under the ban do not count as “arms” under the Second Amendment.
“Large-capacity magazines are optional accessories to firearms, and firearms operate as intended without a large-capacity magazine,” Judge Susan Graber wrote in Duncan v. Bonta. “A large-capacity magazine is thus an accessory or accoutrement, not an ‘Arm’ in itself. Possession of a large-capacity magazine therefore falls outside the text of the Second Amendment.”
The ruling is a setback for gun-rights activists. It establishes a binding precedent in the country’s largest appellate circuit—which contains multiple states with similar bans—blessing magazine restrictions under the Second Amendment. That precedent will stand permanently unless the Supreme Court of the United States (SCOTUS) intervenes. Whether it will choose to remains an open question.
The ruling may end the Duncan case, which has gone through something of a procedural Groundhog’s Day. US District Judge Roger Benitez first struck it down as unconstitutional in 2019. That briefly led to a phenomenon known as “Freedom Week,” in which California gun owners could purchase magazines covered by the ban again. Then, the Ninth Circuit stepped in to issue a stay on that decision while it heard the appeal.
In 2021, the en banc Ninth Circuit ultimately upheld California’s magazine ban by the same 7-4 margin. Then SCOTUS granted, vacated, and remanded that decision back down to the lower courts to be reconsidered in light of the Second Amendment test it created in 2022’s New York State Rifle & Pistol Association v. Bruen. In September 2023, Judge Benitez again ruled the ban unconstitutional. Then, the en banc Ninth Circuit again stepped in to stay the ruling while it considered California’s appeal.
Reviewing the ban with the Bruen test in mind, the panel first considered whether it implicated the right to “keep and bear arms” as codified by the plain text of the Second Amendment. Here, the panel held that the amendment only refers to weapons rather than accessories.
“At the time of ratification, a clear distinction was recognized between weapons themselves, referred to as ‘arms,’ and accessories of weaponry, referred to as ‘accoutrements,'” Graber wrote.
The panel acknowledged that some accessories that themselves would not be considered arms could nonetheless be given equal protection under the amendment’s text if they are “necessary for the ordinary operation of a protected weapon.” However, they concluded that “large-capacity” magazines are never necessary.
“To the contrary, firearms that accept magazines operate as intended when equipped with magazines containing ten or fewer rounds,” Graber concluded. “Accordingly, the Second Amendment’s plain text does not encompass a right to possess large-capacity magazines.”
Though it determined that finding sealed the ban’s fate, the panel proceeded with a historical analysis of similar restrictions anyway because it said that “plaintiffs’ argument fares no better even if we assume that their proposed conduct falls within the plain text of the Second Amendment.”
The panel decided that the ban required “a more flexible analogical approach” to review historical laws because it said California passed the magazine ban in response to “unprecedented societal concerns or dramatic technological changes.” It said that mass shootings involving large-capacity magazines “warrant an even more flexible approach” than SCOTUS used to uphold the federal domestic violence restraining order gun ban in 2024’s US v. Rahimi because the problem reflects both of the criteria it said would allow for a “more nuanced approach” to history.
Under this looser standard, the majority held that Founding-era gunpowder storage requirements, bans on trap guns, and 19th-century bans on weapons associated with criminality like Bowie knives all support California’s modern ban.
“We discern two distinct traditions from the legal regimes described above,” Graber wrote. “First, the Founding-era gunpowder storage regulations established an early tradition of laws seeking to protect innocent persons from infrequent but devastating harm by regulating a component necessary to the firing of a firearm. Second, since the Founding era, legislatures have enacted laws to protect innocent persons from especially dangerous uses of weapons once those perils have become clear.”
Judge Patrick Bumatay, joined by three other judges, penned the primary dissent. In it, he accused the majority of taking an “extreme position” by writing magazines out of the Second Amendment. He also charged the majority with “mak[ing] up a new two-test Bruen framework” divided between “the so-called ‘more nuanced approach’ and the ‘straightforward,’ unnuanced approach.”
“Over the course of this litigation, the majority has taken at least three positions on how California’s novel ban should be upheld as constitutional. So this is now the third time we’ve had to warn against the majority’s violation of Supreme Court instructions,” he wrote. “We sound the alarm yet again—but this time, it’s more dire given the extreme nature of the majority’s ruling. Its implications are vast and lead to a dangerous expansion of government power. In contrast, if our analysis here sounds familiar, it is. Our position has remained the same from the start of this litigation. Adhering to the Second Amendment’s text and historical understanding, California’s magazine ban is unconstitutional.”
Judge Lawrence VanDyke, already well known for his colorful dissents in Second Amendment cases, likewise dissented from Thursday’s ruling. He also attached a video to his written opinion, which depicted him in his robes in his chamber, demonstrating how ammunition magazines and other gun parts work using his own handguns.
“Instead of straining to use written words to explain the many different parts of a gun and how each part could easily be deemed an ‘accessory’ under the majority’s vacuous test, I have decided to deliver part of my dissent in this case orally—via video—under the established wisdom that showing is sometimes more effective than telling,” he wrote.
He argued the majority’s logic in minimizing the status of magazines that hold more than 10 rounds of ammunition to unprotected accessories could be applied to grips, sights, triggers, or a host of other essential parts that could be upgraded or downgraded on a pistol. However, Judge Van Dyke’s video drew a sharp rebuke from Judge Marsha Berzon, who penned a concurrence joined by five other members of the majority.
“Judge VanDyke’s dissent improperly relies on factual material that is unquestionably outside of the record,” Berzon wrote. “And, although I am surprised that it is necessary to do so, I write to reemphasize that as judges, we must decide cases as they are presented to us by the parties, leaving advocacy to the attorneys and testimony to the witnesses, expert and otherwise.”
The California Rifle and Pistol Association, a gun-rights group that sued California over its ban, blasted Thursday’s decision and said it would be appealing it to the Supreme Court “immediately.”
“This incorrect ruling is not surprising considering the inclination of many 9th Circuit judges to improperly limit the Second Amendment’s protections,” Chuck Michel, the group’s president, said. “It is high time for the Supreme Court to reign in lower courts that are not following the Supreme Court’s mandates as laid out in the Heller and Bruen cases, and this case presents an opportunity for the High Court to do that emphatically.”
California officials, meanwhile, celebrated the opinion as an “important win” for public safety.
“Let me be clear, this law saves lives,” California Attorney General Rob Bonta (D.) said. “Today’s ruling is an important win — not only in this case, but in our broader efforts to protect California communities from gun violence.”
