By Dave Workman | Editor-in-Chief
In a ruling that may send shudders through the gun prohibition movement, a Ninth U.S. Circuit Court of Appeals panel on Friday ruled 2-1 that California’s ban on so-called “large capacity magazines” violates the Second Amendment.
It was a victory for the California Rifle & Pistol Association, and gun rights advocates across the West.
“This is a huge win for the NRA and gun owners nationwide,” said NRA spokeswoman Amy Hunter. “The 9th Circuit, which isn’t often a favorable court for gun owners, ruled it is unconstitutional to place arbitrary bans on magazines that hold more than 10 rounds. The judge who authored the opinion in this case was appointed by President Trump. That means everyone who voted pro-gun in 2016 played a role in this significant win. It’s a reminder to everyone: Vote in November. Your rights depend on it.”
As if to underscore the phrase “elections matter,” while Judge Kenneth K. Lee is a Trump appointee, Judge Consuelo M. Callahan was appointed by George W. Bush. Judge Barbara M.G. Lynn is a Bill Clinton appointee, visiting from Texas. Judge Lynn dissented.
Alan Gottlieb, founder and executive vice president of the Second Amendment Foundation, which has a similar case pending in California, added, “While this was not our case, this is a victory for all gun owners, and the majority opinion reflects our arguments in (the) amicus brief we submitted.”
The case, known as Duncan v. Becerra, was brought on behalf of several individual citizens including Virginia Duncan—for whom the case is named—Richard Lewis, Patrick Lovette, David Marguglio and Christopher Waddell. They were represented by veteran gun rights attorney Chuck Michel.
Friday’s majority opinion, written by Circuit Judge Kenneth K. Lee, upheld an earlier decision by District Judge Roger T. Benitez in U.S. District Court in the Southern District of California.
It is not clear whether the state will ask for an en banc hearing before a full Ninth Circuit panel, or appeal to the U.S. Supreme Court.
Gun rights advocates are calling attention to the fact that the court majority applied strict scrutiny in its analysis of the case and the law being challenged.
“Applying this court’s precedent,” Judge Lee explained, “we hold that strict scrutiny is the proper standard of constitutional review. California Penal Code section 32310 cannot withstand this level of scrutiny and is unconstitutional.”
The judge noted a few paragraphs later, “Firearm magazines are ‘arms’ under the Second Amendment. Magazines enjoy Second Amendment protection for a simple reason: Without a magazine, many weapons would be useless, including ‘quintessential’ self-defense weapons like the handgun.”
This concurs with an opinion issued in the Third Circuit, in a case challenging a New Jersey regulation.
Judge Lee went on to explain why large capacity magazines are not “unusual arms.”
Citing the 2008 Supreme Court ruling in District of Columbia v. Heller, Judge Lee detailed, “In addressing ‘unusualness,’ the Supreme Court held that ‘the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” In other words, just because a weapon was not in existence during the founding era does not mean it is ‘unusual.’”
