WHAT HAPPENED: Today, a panel of the 9th Circuit Court of Appeals affirmed (by a 2-1 vote) a federal district court's ruling that so-called "large capacity" magazines are protected by the Second Amendment. (ORDER HERE.)


First, the panel held that Cal. Penal Code § 32310 struck at the core right of law-abiding citizens to self-defend by banning LCM possession within the home. Second, the panel held that Section 32310’s near-categorical ban of LCMs substantially burdened core Second Amendment rights. Third, the panel held that decisions in other circuits were distinguishable. Fourth, the panel held that this circuit’s decision in Fyock v. City of Sunnyvale, 779 F.3d 991 (9th Cir. 2015), did not obligate the panel to apply intermediate scrutiny.

The panel held that Cal. Penal Code § 32310 did not survive strict scrutiny review. First, the panel held that the state interests advanced here were compelling: preventing and mitigating gun violence. Second, the panel held that Section 32310 was not narrowly tailored to achieve the compelling state interests it purported to serve because the state’s chosen method – a statewide blanket ban on possession everywhere and for nearly everyone – was not the least restrictive means of achieving the compelling interests.

The panel held that even if intermediate scrutiny were to apply, Cal. Penal Code § 32310 would still fail. The panel held that while the interests expressed by the state qualified as “important,” the means chosen to advance those interests were not substantially related to their service.

Chief District Judge Lynn dissented, and would reverse the district court’s grant of summary judgment. Judge Lynn wrote that the majority opinion conflicted with this Circuit’s precedent in Fyock, and with decisions in all the six sister Circuits that addressed the Second Amendment issue presented here. Judge Lynn would hold that intermediate scrutiny applies, and Cal. Penal Code § 32310 satisfies that standard.

POSITION: FPC strongly supports this lawsuit and filed an important legal and history brief in support of the plaintiffs at the 9th Circuit. FPC's brief argued that so-called "large-capacity" magazines are inherent components of functional firearms, that such magazines are "in common use" for lawful purposes, and are constitutionally protected. Indeed, in our brief, FPC argued that:

A weapon that is “unusual” is the antithesis of a weapon that is “common.” Thus, an arm “in common use” cannot be “dangerous and unusual,” and is therefore protected. 

The 9th Circuit agreed, holding that:

the record shows that such magazines are overwhelmingly owned and used for lawful purposes. This is the antithesis of unusual. That LCMs are commonly used today for lawful purposes ends the inquiry...

FPC was joined by amici individual gun owners: William Wiese, Jeremiah Morris, Lance Cowley, Sherman Macaston, Clifford Flores, L.Q. Dang, Frank Federau, Alan Normandy, and Todd Nielsen, all plaintiffs in the Wiese v. Becerra magazine ban challenge FPC was also joined by amici Firearms Policy Foundation (FPF), California Gun Rights Foundation (CGF), Second Amendment Foundation (SAF), Armed Equality (AE), San Diego County Gun Owners (SDCGO), Orange County Gun Owners (OCGO), Riverside County Gun Owners (RCGO), and California County Gun Owners (CCGO).

BOLO: California Attorney General Xavier Becerra and his CA DOJ will likely petition the 9th Circuit for en banc review. As with other cases, en banc review is very possible. In that case, the case would be re-heard by a "full court" panel of 10 judges and Chief Judge Sydney Thomas, a devoutly anti-Second Amendment judge from Montana. 

WHAT'S NEXT: The California ban remains partially in effect until the district court issues a new order that lifts the stay of the judgement. Remember that in April 2019, following his ruling that the California magazine ban was unconstitutional, Judge Benitez ordered:

that the Judgment is stayed in part pending final resolution of the appeal from the Judgment. The permanent injunction enjoining enforcement of California Penal Code § 32310 (a) and (b) is hereby stayed, effective 5:00 p.m., Friday, April 5, 2019.

...that the preliminary injunction issued on June 29, 2017, enjoining enforcement of California Penal Code § 32310 (c) and (d) shall remain in effect.

and that

...the permanent injunction enjoining enforcement of California Penal Code § 32310 (a) and (b) shall remain in effect for those persons and business entities who have manufactured, imported, sold, or bought magazines able to hold more than 10 rounds between the entry of this Court’s injunction on March 29, 2019 and 5:00 p.m., Friday, April 5, 2019. 

Thus, until a new order is issued, the above is the state of the law in the State of California. It is possible that Judge Benitez issues a new order and allows sales to re-commence, but it seems more likely that the status quo is maintained until the resolution of any en banc petition, sua sponte call for rehearing en banc, en banc proceedings, or perhaps even a petition for certiorari to the U.S. Supreme Court. Stay tuned and watch this page for updates!

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