Sacramento, CA (August 14, 2020)- Earlier today, the Ninth Circuit released its highly anticipated opinion in Duncan v. Becerra, holding California’s ban on “large-capacity magazines” (“LCMs”) unconstitutional.

    California Penal Code § 32310 criminalizes the manufacture, importation, sale, offer to sell, giving, lending, buying, or receiving of any “large-capacity magazine.” The law also punishes any person who possesses a “large-capacity magazine,” regardless of the date the magazine was acquired, by a fine of up to $100 per magazine and imprisonment in a county jail for up to one year. In other words, there is no grandfather provision in California law.

    Director of Legal Strategy Adam Kraut previously discussed California’s “large-capacity magazine” ban, and the District Court’s Opinion (which led to this appeal), in greater detail on Recoil Web.

What Happened

    The State of California appealed a district court decision, which held its LCM ban unconstitutional. In a 2-1 decision, the Ninth Circuit affirmed the lower court’s findings and likewise held the law unconstitutional. As of the writing of this blog article, there is a partial stay of the lower court’s ruling still in effect. Unfortunately for gun-owning Californians, the stay is in relation to the part of the law which makes it a crime to possess, sell, transfer, receiver, etc., “large-capacity” magazines.

Magazine Bans Are Unconstitutional Under Every Second Amendment Test

    There has been much debate as to what the Heller decision actually said regarding the correct test to judge laws that regulate conduct protected by the Second Amendment. The district court in Duncan held that 1) Section 32310 failed the “simple Heller test”, which asks whether the firearm or firearm component is commonly owned by law-abiding citizens for lawful purposes, and 2) Section 32310 failed the Ninth Circuit’s two-step test, which involves a heightened scrutiny analysis (weighing the State’s interest in the ban against law-abiding citizens’ interest in possessing the magazines). In short, the law’s complete prohibition on possession by nearly everyone, everywhere, was a sloppy fit for the State’s purported goal of reducing gun violence. 

    In its amicus brief, FPC argued that applying an interest balancing test was the improper test to apply and noted that the Supreme Court has addressed arms prohibitions on four separate occasions without ever indicating interest balancing tests were appropriate. Regardless, today’s opinion applied the two-step test that the Ninth and other Circuits have created and employed in previous Second Amendment cases. This test asks 1) whether the challenged law burdens conduct protected by the Second Amendment, and 2) if so, directs the court to apply an appropriate level of heightened scrutiny (which is the subject of rigorous debate). 

Step 1

    The Ninth Circuit’s first step breaks down further into four key inquiries. Those key inquiries are 1) whether the law at issue regulates “arms” for purposes of the Second Amendment, 2) whether the law regulates an arm that is both dangerous and unusual, 3) whether the regulation is “longstanding” and thus “presumptively lawful,” and 4) whether there is persuasive historical evidence in the record showing that the regulation does not affect rights protected by the Second Amendment. If the answer to any of those questions is “yes,” the law does not burden protected conduct and that ends the analysis. 

    Of note, today’s opinion spent several pages explaining that the court must consider whether the law regulates an arm that is both dangerous and unusual. FPC’s Director of Research Joseph Greenlee filed an amicus brief in this case arguing for precisely this analysis.  This reading comports with the Supreme Court’s decision in Caetano v. Massachusetts and rejects the analysis favored by the government that one or the other (i.e., dangerousness or unusualness) is enough to stop the analysis. Perhaps said best by the Supreme Court in Heller, the “very attributes that make handguns particularly useful for self-defense are also what make them particularly dangerous.”

    Like other courts before, the Ninth Circuit held that magazines, even those deemed “large-capacity,” are arms protected by the Second Amendment. The court held that LCMs were not both dangerous and unusual – in fact they are commonly owned and typically used for lawful purposes by millions of Americans. It also held that “large-capacity magazine” bans were neither longstanding, nor consistent with American history or tradition. Finding that the challenged law burdened conduct protected by the Second Amendment, the court proceeded to step two of the analysis.

Step 2

    At Step 2, the court must then apply “some” level of heightened scrutiny to the law at issue, and determine, in short, if the ends justify the means – or more precisely, if the government has proven that the law is an appropriate “fit” that actually addresses the problem it’s purported to solve. To determine which level of scrutiny applies, Step 2 considers first, how “close” the challenged law comes to the core right of law-abiding citizens to defend hearth and home (as an aside, Justice Thomas recently remarked in his dissent in Rogers v. Grewal that “[t]he Second Amendment provides no hierarchy of core and peripheral rights,” rejecting any notion that some portions of the Second Amendment are more protected than others. In the same dissent, he also opined that the two-step test adopted by the federal Courts of Appeals “appears to be entirely made up.”). And second, whether the law imposes a substantial burden on that right. If the challenged law does not strike at the “core” of the Second Amendment or substantially burden that right, then intermediate scrutiny applies. Only where both questions are answered in the affirmative will strict scrutiny (the hardest for the challenged law to survive) apply. 

    Today’s decision held that strict scrutiny was the correct standard to apply and under that test, California’s LCM ban fails to prevail. Section 32310 strikes at the “core” of the right of law-abiding citizens to defend hearth and home, and the burden imposed on the “core” right is substantial. In rejecting the State’s argument that the law did not impose a substantial burden to the Second Amendment because citizens still can defend themselves with guns equipped with non-LCMs, the court was unequivocal: The Supreme Court in Heller made clear that a regulation may impose a substantial burden on the Second Amendment, even though the restriction does not foreclose the right to self-defense. The Heller Court held that a categorical ban on handguns substantially burdened the right, even though the ban left open the possibility of self-defense with shotguns, rifles, and other types of arms. Likewise today’s opinion held that California’s law banned an entire class of arms that is overwhelmingly chosen by American society for self-defense, and thus infringes on the Second Amendment.

    Put another way, a “substantial burden” on the Second Amendment is viewed not through a policy prism but through the lens of a fundamental and enumerated constitutional right. We would be looking through the wrong end of a sight-glass if we asked whether the government permits the people to retain some of the core fundamental and enumerated right. Instead, Heller, counsels us to look at whether the government regulation restricts the core fundamental right from the outset. In other words, we look to what the restriction takes away rather than what it leaves behind. Here, California’s law takes away a substantial swath of the core constitutional right to self-defense because it bans possession of half of all magazines in America today, even though they are common in guns used for self-defense. In short, a law that takes away a substantial portion of arms commonly used by citizens for self-defense imposes a substantial burden on the Second Amendment.

 Opinion at 42.

    The opinion also notably explored at length the historical significance of the Second Amendment as a right for all Americans, and its particular importance to people of color during the civil rights movement, to individuals endangered by domestic violence, and to members of the LGBT communities as a means to dispel perceptions and deter attacks against LGBT members. Striking also was the court’s acknowledgement that the record before it reflected anywhere between 240,000 and 2.5 million annual defensive firearm uses – meaning that an average of 657 Americans, and perhaps as many as 6,849 Americans – use guns to defend themselves every single day of the year. In apparent recognition of the ongoing challenges of 2020 in particular, the court also acknowledged the rights of law-abiding citizens stuck in high crime areas, in areas fraught with civil unrest, in those communities that are underserved by or untrusting of the police, or even those that live in more remote areas of the country, where law enforcement is often a significant distance away. 

What Level of Scrutiny and Why?

    Today’s opinion made clear that categorical bans on possession, particularly in the home, will garner strict scrutiny. The court distinguished prior Ninth Circuit decisions in which a ban on the sale of hollow-point ammunition within city limits, as well as gun-purchase waiting periods both received intermediate scrutiny rather than strict, likening them to time, place, and manner restrictions that receive the same intermediate scrutiny in the First Amendment context (from which analyses regarding Second Amendment rights heavily borrow). “Governmental bans on possession cut deeply into the core constitutional right to protect hearth and home,” and are “strong medicine” likely requiring strict scrutiny. 

    Strict scrutiny requires that a law be “narrowly tailored to achieve a compelling interest.” If there are other reasonable ways to achieve the State’s compelling interest with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference.  The court agreed that California’s stated interests of “preventing and mitigating gun violence, particularly public mass shootings, and the murder of law enforcement personnel,” were indeed compelling, however, the law was not narrowly tailored to those pursuits. 

    Despite holding that strict scrutiny was the appropriate level of scrutiny, today’s opinion also looked through the lens of intermediate scrutiny – in which a law must be “substantially related to an important government objective” – which yielded the same result. Proceeding through a litany of recent decisions, the court reiterated that even intermediate scrutiny was intended to have significant “bite” to it, and cautioned against the recent trend seen in other circuits in which a diluted form of intermediate scrutiny (in name only) has been applied – particularly in the Second Amendment context.

What Happens Now?

    Today’s decision was written by a three-judge panel of the Ninth Circuit. While we don’t have a crystal ball, it is hard to imagine that the State will not petition the court to rehear the case en banc. If that occurs, the en banc court could reverse the panel decision and find the law to be constitutional. One only needs to look at Peruta v. San Diego for a recent example of such an event.


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