By Dave Workman
Editor-in-Chief
Before the dust even settles on the major gun rights victory in California in the case of Miller v. Bonta, gun rights activists were looking ahead to June 22, when a full panel of the Ninth U.S. Circuit Court of Appeals in San Francisco is scheduled to re-hear the case of Duncan v. Becerra.
That’s the case declaring California’s ban on so-called “large capacity magazines” to be unconstitutional.
The original ruling, by Judge Roger T. Benitez of the U.S. District Court for the Southern District of California, was handed down in 2019. Last year, a three-judge panel at the Ninth Circuit upheld Benitez 2-1. The state asked for and was granted the en banc hearing before a full panel of judges.
The Duncan case might easily have been the prelude to Miller v. Bonta, the case decided last week by Judge Benitez. Both cases are intertwined because they challenge California’s restrictive gun control laws, and if those laws are struck down, it will reshape the gun control argument nationwide, and hammer into place the principle that the Second Amendment means what it says.
The majority opinion in Duncan was authored by Judge Kenneth Lee, a 2019 Donald Trump appointee. He was joined by Judge Consuelo M. Callahan, a George W. Bush appointee. Dissenting was visiting District Judge Barbara M.G. Lynn, a Bill Clinton appointee.
In the ruling, Judge Lee acknowledged, “We understand the purpose in passing this law. But even the laudable goal of reducing gun violence must comply with the Constitution. California’s near-categorical ban of LCMs infringes on the fundamental right to self-defense. It criminalizes the possession of half of all magazines in America today. It makes unlawful magazines that are commonly used in handguns by law abiding citizens for self-defense. And it substantially burdens the core right of self-defense guaranteed to the people under the Second Amendment. It cannot stand.”
The Ninth Circuit is widely considered the most liberal of all the federal appellate courts, so it would not surprise anyone if the en banc panel came down on the other side by upholding the magazine ban. Thus, the stage would be set for an appeal to the Supreme Court. That might be more than a year away. Meanwhile the ban would continue.
There is another aspect to the Duncan case that could have a shattering effect on the gun prohibition movement. California’s magazine ban was adopted by voters via Proposition 63. A victory for Virginia Duncan and the other plaintiffs could have a chilling effect on other initiative efforts because constitutionally-protected rights cannot be subject to a public vote, essentially a popularity contest.
In Washington State, for example, a billionaire-backed gun prohibition lobbying group has pushed through two restrictive gun control measures since 2014, Initiatives 594 and 1639. The first was a mandate for so-called “universal background checks.” The second was aimed at regulating and defining so-called “semiautomatic assault rifles.” There is no evidence either has prevented a single violent crime.
