Advocates for gun rights in California were dealt a new setback on Tuesday.
An en banc panel at the Ninth Circuit Court of Appeals upheld the state’s prohibition on magazines that hold more than 10 rounds. In the case Duncan v. Bonta, the 7-4 court found that the ban does not violate the Second Amendment.
“Nothing in the record suggests that the restriction imposes any more than a minimal burden on the Second Amendment right to keep and bear arms,” Judge Susan P. Graber wrote in her opinion. “Similarly, the record suggests at most a minimal burden, if any burden at all, on the right of self-defense in the home.”
The decision overturns a 2019 ruling from District Court Judge Roger Benitez that originally found the magazine ban unconstitutional. For one week, Californians were able to purchase standard capacity magazines in what was dubbed “freedom week” by activists, before the decision was stayed pending appeal.
The decision comes as a ruling is pending in the Supreme Court’s New York gun-carry case. Many other courts have halted ongoing Second Amendment litigation in order to wait for the Supreme Court’s direction on future gun cases. Yet the Ninth Circuit in this case proceeded in applying intermediate scrutiny—a standard the Supreme Court seems poised to discard—to reach its decision.
Some of the Ninth Circuit judges were displeased with the court’s decision to apply intermediate scrutiny in this case.
“It should be presumptively unconstitutional to burden constitutional rights,” Judge Lawrence VanDyke wrote in a dissent. “But looking at our court’s cases, you would assume that any burden on the right to bear arms is presumptively permitted. I’ve described before how our circuit’s version of Second Amendment ‘heightened’ scrutiny has no height. It is practically indistinguishable from rational basis review.”
He said that some of the other judges let their personal feelings on gun rights affect their rulings in Second Amendment cases like this one.
“The majority of our court distrusts gun owners and thinks the Second Amendment is a vestigial organ of their living constitution,” he said. “Those views drive this circuit’s caselaw ignoring the original meaning of the Second Amendment.”
Supporters of the ruling, however, cheered the decision.
“Today’s decision is a victory for public safety in California,” California Attorney General Rob Bonta (D.) said. “Gun violence is an epidemic in this country, but laws like our ban on large-capacity magazines are commonsense ways to prevent this violence, including devastating mass shootings.”
He went on to say that the ruling respected both public safety and rights of gun owners.
“I’m thankful to the Court for giving this case a second look, and confirming what we know to be true: our laws keep Californians safe while allowing law-abiding gun owners to exercise their constitutional rights,” he said.
State gun-rights groups, meanwhile, decried the decision.
“We are truly disappointed that the Ninth Circuit en banc panel decided to go against the solid constitutional reasoning of other judges to strike down this win for gun owners,” Chuck Michel, President of California Rifle and Pistol Association, said.
He said the group would be appealing the decision to the Supreme Court.
“We will be appealing to the Supreme Court for a final determination because gun owners deserve to have someone fighting for them and their rights,” Michel said. “The Second Amendment is a fundamental right, and it is time that courts stop treating that right like a second-class gift from government.”
A similar case dealing with New Jersey’s magazine ban is already pending before the Supreme Court.