Ninth Circuit strikes down California
ban on high-capacity gun magazines
By BIANCA BRUNO, Contributing Writer
SACRAMENTO (CN) — Siding with a lower court judge who found California’s ban on high-capacity gun magazines holding more than 10 rounds of ammunitionis illegal and could lead to women being “raped and dead,” a duo of GOP-appointed Ninth Circuit judges recently ruled the ban violates the Second Amendment.
In a 66-page order, U.S. Circuit Judge Kenneth Lee, a Donald Trump appointee, found California’s voter-approved Proposition 63 — enacted in 2016 to ban the high-capacity gun magazines frequently used in mass shootings — violates theSecond Amendment.
Lee found Proposition 63 burdens conduct protected by the Second Amendment, as firearm magazines are protected under the Constitution, not “unusual” and are commonly owned for lawful purposes.
He further found Proposition 63 “struck at the core right of law-abiding citizens to self-defend by banning LCM possession within the home,” using the acronym for “large-capacity magazine.”
The state’s “compelling interest” in mitigating gun violence was not narrowly tailored by “a statewide blanket ban on possession everywhere and for nearly everyone.” As such, Proposition 63 was not the “least restrictive means” of preventing mass casualties, Lee wrote.
Lee affirmed U.S. District Judge Roger Benitez’s decision last year granting summary judgment in favor of gun owner Virginia Duncan and the California Pistol & Rifle Association. Benitez found gun magazines over 10 rounds are commonly owned “by law-abiding responsible citizens for lawful uses like self-defense.”
In his order striking down the law, and during a four-hour court hearing in 2018, Benitez referenced women’s need to be able to protect themselves from home intrusions and rape as a reason California residents needs access to high-capacity gun magazines.
His sentiment was echoed by U.S. Circuit Judge Consuelo Callahan, a George W. Bush appointee, during the virtual Ninth Circuit hearing on the case this past April. U.S. District Judge Barbara Lynn, a Bill Clinton appointee sitting by designation from the Northern District of Texas, wrote in a 14-page dissent that her colleagues’ order conflicts with legal precedent set by the Ninth Circuit and sister courts regarding high-capacity gun magazines.
In a statement on its website, California Rifle & Pistol Association president and general counsel Chuck Michel called the order a “major victory for the Second Amendment, both in California and across the country.”
“This is a huge win specifically for the right to possess these valuable self-defense tools. But more generally, this case may present the Supreme Court with an opportunity to set things straight on the underlying issue of what the standard of review test should be when considering any Second Amendment challenge,” Michel said.
In a statement, California Atty. General Xavier Becerra’s Office said they are “carefully reviewing the decision, with the goal of protecting public safety. The attorney general remains committed to using every tool possible to defend California’s gun safety laws and keep our communities safe.”
Lee found California’s law imposed a substantial burden on the right to self-defense, making half of all 230 million gun magazines in America illegal to own in the Golden State including ammunition which comes standard on Glocks, Berettas and other handguns “that are staples of self-defense.”
Unlike waiting period laws and other limitations the state has enacted to mitigate gun violence, Lee found Proposition 63 “went too far.” He suggested had the law contained a grandfather clause for those who already owned high-capacity magazines or carve-outs for those in rural parts of the state who may need access to the weapons, it may have passed constitutional muster.
“Many Californians may find solace in the security of a handgun equipped with an LCM: those who live in rural areas where the local sheriff may be miles away, law-abiding citizens trapped in high-crime areas, communities that distrust or depend less on law enforcement, and many more who rely on their firearms to protect themselves and their families. California’s almost blanket ban on LCMs goes too far in substantially burdening the people’s right to self-defense,” Lee wrote.
The ban was also unconstitutional because it outlawed weapons “typically possessed” by law-abiding citizens, according to Lee.
“This is the antithesis of unusual,” Lee wrote, listing the history of semiautomatic and multishot firearms dating back to 1580 while noting they “were not novel or unforeseen inventions to the founders.”
“The historical prevalence of firearms capable of holding more than 10 bullets underscores the heritage of LCMs in our country’s history,” Lee wrote, mooting the need for the court to evaluate their dangerousness when ruling on the constitutionality of Proposition 63.
In a footnote, Lee noted statistics submitted in the court record show criminal use of high-capacity magazines was relatively low when compared to their market saturation.
The weapons were used 31 times between 1982 and 2012 in shootings in the United States where four or more people were killed, according to the ruling. Reading like an American history book, Lee’s opinion also connected the right to “defend hearth and home” with the Civil Rights movement.
“Our country’s history has shown that communities of color have a particularly compelling interest in exercising their Second Amendment rights,” Lee noted, pointing to Martin Luther King Jr. owning firearms and hiring armed men to guard his house during the Montgomery bus boycott in 1956, despite his commitment to nonviolence.
Presently, Asian Americans have become targets of physical attacks during the Covid-19 pandemic, Lee noted, quoting a woman who said she purchased a gun to protect her daughter.
Other protected groups including women and LGBTQ people could likewise need to arm themselves to prevent domestic violence and hate crimes, Lee wrote.
“The Second Amendment is a fundamental constitutional right guaranteed to the people — especially those who may not be equally protected by the state,” Lee wrote.
“The state could ban virtually anything if the test is merely whether something causes social ills when someone other than its lawful owner misuses it. Adopting such a radical position would give the government carte blanche to restrict the people’s liberties under the guise of protecting them,” he added.
In a statement reacting to the ruling, U.S. Senator Dianne Feinstein, D-Calif., had harsh words for Lee.
“The judge who authored the opinion was Ken Lee, who promised last year at his nomination hearing to respect precedent. When asked by Chairman [Lindsey] Graham, ‘When there is a precedent on point, whether you like it or not, you are going to apply it, right?’ Judge Lee answered succinctly: ‘Yes.’ Today, he proved his answer was hollow,” Feinstein said.
“I’m shocked a three-judge panel of the Ninth Circuit today overturned California’s ban on high-capacity ammunition magazines, which hold 10 rounds or more. This decision runs contrary to at least seven separate federal court decisions and should be reviewed by a full 11-judge panel of the Ninth Circuit,” Feinstein said.
She also offered Lee a history lesson of her own.
“There is no civilian need for the 100-round magazine used last year in Dayton, where 41 rounds were fired in 32 seconds, killing nine. Or the 33-round magazines used in 2011 in Tucson, where six were killed and 13 injured, including Congresswoman Gabrielle Giffords or any other magazine of 10 rounds or more. These tools of war don’t belong on our streets,” she said.
While Judge Lynn agreed with her colleagues that Proposition 63 does burden the Second Amendment, she wrote in her dissent that it does not place a “substantial burden” on Californians’ constitutional rights because the law does not restrict the number of magazines a person can own and their firearms are not “rendered inoperable” by not being used with high-capacity magazines.
“The prohibition on LCMs is more analogous to a restriction on how someone exercises their Second Amendment rights, by restricting the number of bullets a person may shoot from one firearm without reloading,” Lynn wrote.