9th Circuit Court Panel Says California Magazine Limit Violates 2A

Stack Pile Ammunition Gun Magazines High Capacity Standard
Stack Pile Ammunition Gun Magazines High Capacity Standard

U.S.A.-(AmmoLand.com)- In a 2-1 ruling, a Ninth Circuit Court of Appeals panel on Friday affirmed a lower court ruling that the California ban on so-called “large-capacity magazines” violates the Second Amendment. The ruling may be read below or online here.

The majority opinion was written by Circuit Judge Kenneth K. Lee, joined by Judge Consuelo M. Callahan. District Judge Barbara M.G. Lynn dissented. The case is known as Duncan v. Becerra.

The case was brought by the California Rifle & Pistol Association, Inc., and it attracted national attention from attorneys general in several other states, plus gun prohibition lobbying groups and gun rights organizations. CRPA is represented by attorney Chuck Michel. He quickly went on social media to provide a summary.

In his 66-page ruling, Judge Lee observed, “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.”

Significantly, the court applied strict scrutiny in reaching its decision.

According to Judge Lee’s ruling, “The Ninth Circuit employs a two-prong inquiry to determine whether firearm regulations violate the Second Amendment: (1) whether the law burdens conduct protected by the Second Amendment; and (2) if so, what level of scrutiny to apply to the regulation…

“The panel held that under the first prong of the test,” Judge Lee’s summary continues, “Cal. Penal Code § 32310 burdened protected conduct. First, the panel held that firearm magazines are protected arms under the Second Amendment. Second, the panel held that LCMs are commonly owned and typically used for lawful purposes, and are not “unusual arms” that would fall outside the scope of the Second Amendment. Third, the panel held that LCM prohibitions are not longstanding regulations and do not enjoy a presumption of lawfulness. Fourth, the panel held that there was no persuasive historical evidence in the record showing LCM possession fell outside the ambit of Second Amendment protection.

“Proceeding to prong two of the inquiry,” the judge explained, “the panel held that strict scrutiny was the appropriate standard to apply. 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.”

One of the organizations submitting an amicus brief was the Second Amendment Foundation. They were joined by the California Gun Rights Foundation, Firearms Policy Coalition, Firearms Policy Foundation, Armed Equality, San Diego County Gun Owners, Orange County Gun Owners, Riverside County Gun Owners, and California County Gun Owners.

According to SAF founder and Executive Vice President Alan Gottlieb in a statement, “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.”

Brandon Combs, president of the Firearms Policy Coalition, essentially said the same thing via email, noting “We were the only parties to brief that issue.”

SAF and FPC actually have a similar case pending in California known as Wiese v. Becerra that also challenges the ban on large capacity magazines. Gottlieb predicted the Duncan ruling will quickly be applied to that case.

Judge Lee noted in his Friday ruling:

“Millions of Americans across the country own LCMs. One estimate based in part on government data shows that from 1990 to 2015, civilians possessed about 115 million LCMs out of a total of 230 million magazines in circulation. Put another way, half of all magazines in America hold more than ten rounds.

“Today,” he continued, “LCMs may be lawfully possessed in 41 states and under federal law.”

In the 2008 Heller ruling, Lee reminded, the U.S. Supreme Court recognized handguns as the “quintessential self-defense weapon.”

CRPA was joined by several private citizens including Virginia Duncan—for whom the case is named—along with Richard Lewis, Patrick Lovette, David Marguglio and Christopher Waddell.

Duncan v. Becerra Ruling


About Dave WorkmanDave Workman

Dave Workman is a senior editor at TheGunMag.com and Liberty Park Press, author of multiple books on the Right to Keep & Bear Arms and formerly an NRA-certified firearms instructor.

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Warlok11
Warlok11
1 month ago

GREAT now maybe the citizens can stand up to the gangs in tbe L.A. COUNTY SHERIFF’S OFFICE

Last edited 1 month ago by Warlok11
pops89
pops89
1 month ago

So of the 115 million magazines that are in circulation that are NOT “LCM’s”, how many were forced purchases because of state law hat mandated the lower capacity? The number of standards should be represented as much higher than half if this had been considered.

Random71
Random71
1 month ago
Reply to  pops89

I would wager almost all of them, save maybe for the guys who got 2 mags for their pistol and never cared more. Even the guys I know that use bipods on their ARs in prone prefer the 20s, but those were considered LCMs….

RoyD
RoyD
1 month ago
Reply to  pops89

And how many are not “LCM” because the firearm was designed, and came with, non LCM magazines. I have six that I can think of which were designed to have 10 round or less magazines: 1911, Ruger P97, Glock 30, LCP, Glock 44, and a Ruger MkIII.

Last edited 1 month ago by RoyD
james
james
1 month ago

If the police and criminals have them so should the law abiding citizens.

james
james
1 month ago

No doubt they will refile to have the full panel hear the case without the one Judge who recused.

Arizona Don
Arizona Don
1 month ago

A ban on any gun has NEVER reduced crime if anything it has increased crime. For anyone who does not understand that it takes guns out of law abiding citizens hands but NOT the criminals (outlaws) hands. People who do not obey laws will not start obeying them just because they are gun laws. They are the laws they mostly do not adhere to. So it emboldens them and makes their job (murdering, robbing, stealing and burglary) much easier when only the law enforcement can have guns. Don’t we know by now law enforcement cannot be everywhere at the same time?   Constitutional carry assists the… Read more »

Ol’ Bill
Ol’ Bill
1 month ago

CRPA acts as the law firm on behalf of NRA. A very large chunk of CRPA’s funding comes from NRA, therefore, NRA is very much involved.

BigMikeU
BigMikeU
1 month ago

I am so happy for pro-2A people in Cali.!!! But what about other blue states?I live in Communist New Jersey and they recently also banned regular capacity magazines and since this case went the way it did in Cali. then why isnt the NRA or NAGR or some other group going after our state leader and his anti-gun policies?Commrad Murphy is one of the worst Governors we have ever had!!! His election was after Christie retired which threw off the regular election cycle in our state and after Conservatives in N.J. helped vote Trump into office they forgot about the… Read more »

Arizona Don
Arizona Don
1 month ago
Reply to  BigMikeU

I would suggest you leave communist New Jersey. If you are conservative I would welcome you to Arizona the friendliest gun state in America!

hippybiker
hippybiker
1 month ago

Notice that the NRA had no connection to this. Odd, to say the least. Or, am I wrong in my assumption?

Heed the Call-up
Heed the Call-up
1 month ago
Reply to  hippybiker

It is not odd, and you are not wrong.The NRA is, or has become, another facet of the Democratic Party. What they say and what they do are totally different.

Green Mtn. Boy
Green Mtn. Boy
1 month ago
Reply to  hippybiker

It was originally filed by the Ca. Rifle and Pistol Ass. which is a affiliated Negotiating Rights Away club.

That said if it’s anything like the affiliated club in my state the club did/does all the work at the guidance of NRA and then they take credit for it.

Heed the Call said.

“The NRA is, or has become, another facet of the Democratic Party. What they say and what they do are totally different.”

He nailed it,Negotiating Rights Away is the best friend the gun grabbers could have.

MICHAEL J
MICHAEL J
1 month ago

I’m glad, but somehow this doesn’t seem like a win considering this law should have never seen the light of day. AG Becerra along with Newsom and his one party stronghold has plenty more infringements to the 2nd Amendment in progress. On a positive note, turning the 9th Circuit back to a Constitutional course is probably due to President Trump! Sending these vipers a defeat is very satisfying. Long live the Republic!

willyd
willyd
1 month ago

Now this has to move on to the East Coast, Maine, Mass, Conn, R I, NY, NJ, Md, Del, DC, Va, time to really push back against the Left that have been pushing for years to do away with the 2nd Amendment, and their own ways to destroy ownership of guns all kinds!!!!!!!! This as far as I can see is the first real move to start to put the Left on notice that we are not going to surrender, at least the Ninth Court heard this and ruled on it, more than the Supreme Court has done in how… Read more »

BigMikeU
BigMikeU
1 month ago
Reply to  willyd

I said the same thing but of course as i live in Communist New Jersey i would love to see the same thing here?We recently had our magazine capacity dropped to 10rds and the only time i have ever been proud to be a New Jerseyian was when i heard “not” one magazine was turned in or pinned in our state!I myself have many magazines i refuse to hand over to the state Gov.! Its my legally purchased property!!! We originally started off under the thumb of the poliuticians as our mag capacity was only 15rds to start with and… Read more »

willyd
willyd
1 month ago
Reply to  BigMikeU

I was born in NJ and with a stroke of luck my father landed a job in Pa, we moved and I found out how screwed up NJ was a couple of years later when I bought my first pistol, my cousin and I bought our pistols at the same time, I got mine in Pa the same day, as for my cousin in NJ, long paperwork, and it took him just short of 6 months to get his and this was back in the late 60’s!!!!!!!! The only good point was that our uncle was a NR STATE TROOPER… Read more »

NYS Patriot
NYS Patriot
1 month ago

Great News! So when do we see our NY Attorney General see the writing on the wall? NYS safe act has always been unconstitutional. Wake up Andrew Coumo!

Ryben Flynn
Ryben Flynn
1 month ago

Another 3 Judge panel. CA appeals for an en banc ruling in 3…2…1…

TStheDeplorable
TStheDeplorable
1 month ago

The key nuance of applying the “strict scrutiny” test is that strict scrutiny is reserved for analyzing burdens placed on “fundamental rights.” Liberals have long treated the 2nd Amendment as a lesser right, and even argued it was not an individual right, but a state right. The Heller case established that the 2nd Amendment is an individual right, and this case rightly found it to be a fundamental right. The reason a “strict scrutiny” standard is important is that if the government manages to articulate a compelling state interest for placing a burden on the right, they must then prove… Read more »

Bill
Bill
1 month ago

Praise God! Amazing ruling from the 9th circuit! Thank goodness for conservative judges appointed to the 9th circuit starting to show results in cases!!

Patriot Solutions
Patriot Solutions
1 month ago

I read the case brought by these gun groups including the supplemental brief by FPC and the language was impressive, very impressive. Definitely worth reading and could easily become a baseline format for future cases because begging a court for RIGHTS we have not surrendered to them really needs to change from begging to demanding the courts go by the plain English text of the US Constitution as this brief did. These courts work for us and it’s high time we quite taking shXt from them. Another MAJOR problem in Chinafornia is their banning of firearms from people who have… Read more »

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Patriot Solutions
Patriot Solutions
1 month ago

The Thought Police are in both party’s and nobody would survive it, even the most obedient sheep would be eliminated.

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GUNFUN
GUNFUN
1 month ago

Thank you Patriot. I hadn’t heard about HR838. And I was seriously pissed to find out Mike Simpson was supporting it. He got a call.

Patriot Solutions
Patriot Solutions
1 month ago
Reply to  Dave Workman

Now that it is established that Chinafornia willingly “Irreparably Harmed” We The People are they immune from liability for DAMAGES?

Never leave money on the table. Send a warning to other states that they are next.

Last edited 1 month ago by Patriot Solutions
Random71
Random71
1 month ago

Exactly strike while the iron is hot…..

Green Mtn. Boy
Green Mtn. Boy
1 month ago

Of course it does, so does every cockamamie gun control law cooked up by the civilian disarmament Marxist’s.

Sisu
Sisu
1 month ago

“Hope springs eternal.”

Green Mtn. Boy
Green Mtn. Boy
1 month ago
Reply to  Sisu

It would appear that Orange Man Bad’s judicial appointments have made a noticeable difference on the Ninth Circus,now if he can just stop himself from further violations of the Constitution.

What ever else he does it would be wise to ignore anything Wayne La Pierre might proffer,in other words don’t Eff up again.

Last edited 1 month ago by Green Mtn. Boy
Green Mountain Man
Green Mountain Man
1 month ago
Reply to  Green Mtn. Boy

His good judgement has left us with a RIGHT, you know what RIGHTS are. Right to life, liberty and pursuit of happiness? Only the constitution gives you RIGHTS. Not you imagination, but the Constitution of the United States. He supports the Constitution and has NEVER violated it. Otherwise he would have been Impeached for it. Not the Fictitious Impeachment brought forward by the Marxist/Communists. I don’t know ant true “Green Mountain” human who is against Trump, Supreme Court, Constitution, or America, Unless your from Burlington, they are some seriously inbred people up there

Random71
Random71
1 month ago

Ahem…https://reason.com/2020/06/11/trumps-bump-stock-ban-is-under-fire-from-his-own-judicial-appointees/ Do I need to go dig one up on his support of red flag laws? Or stats on federal gun control enforcement? Perhaps go digging through the EO’s? There are alot of issues with Trump from a Constitutional angle. Just as there are with Obama, Bush, Clinton, ect, all the way back to Madison. Is it the same level as assault as the Left or Rinos, well no, but to claim he is perfect on the constitution is willful ignorance. If he is so totally in spec on the Constitution why are NICS, NFA and GCA, still there and… Read more »

Relic
Relic
1 month ago
Reply to  Random71

This is true,but at least he isn’t actively working to rid us of our rights like the “Frisco skank Harris”/Biden/Leftist Marxist. Trump is the president in my lifetime whom has done more to help the 2nd amendment than anyone & might be waiting for reelection to implement more 2nd amendment supporting laws.

Green Mountain Man
Green Mountain Man
1 month ago
Reply to  Relic

2nd amendment will keep the tyranny of the leftists at bay. God bless America

Random71
Random71
1 month ago
Reply to  Relic

Any movement against 2A, by any person in public service, is infringement and borders on treason. I fail to see how adding infringement of any sort is helping, or being pro 2A for that matter. I only see it as being less combative on one front. When there have been more arrests for Federal Gun laws in 4 years than under 8 in Obama. Sounds very pro 2A. https://tenthamendmentcenter.com/2020/07/24/report-trump-ramps-up-enforcement-of-federal-gun-control-for-third-straight-year/ Waiting for term 2, huh when he could have sent anything he wanted pro 2A in the first 2 years when the Rs had both houses, he banned bump stocks and… Read more »

Patriot Solutions
Patriot Solutions
1 month ago
Reply to  Relic

A point on you guys discussion that stands out to me is that Barr is still actively today using federal gun control to disarm non-violent offenders of the law when I can cite a dozen reasons why the federal gun control is un-Constitutional and Barr is the Trump Administration therefore the Trump Administration on 2A is still to this day not acting in accordance to the US Constitution yet falsely promoting themselves as pro-2A. FPC has plenty of active cases today to prove what I’m saying to be fact. Trump Administration is excellent on everything but 2A.

Green Mountain Man
Green Mountain Man
1 month ago
Reply to  Random71

Wait, haven’t read the news I take it. Bump stocks were banned PRIOR to him taking Office, in some limited states btw. SO, yeah, might wanna fact check your BS before you impose your Marxist stuff here. I know, I’m a veteran, and yeah I know, we have an oath to fulfill. And yes, you are just probably a troll, I don’t care which. Never have in the history of the United States has the Constitution been upheld but by none other than Republicans. Obummmer wanted guns banned, Retard Cuomo in NY wants guns banned, (Remember, it’s a RIGHT, not… Read more »

Random71
Random71
1 month ago

In some states, yes not federally, till the Don, i.e. it was localized states infringing (still wrong), until his mandate took it nationwide. Also never said the Ds werent trying to take our guns, but the numbers dont lie. He is not some pro 2A warrior just another politician. Funny, you call me a marxist, because I point out where your beloved Trump and his Republicans have not held up the constitution. No sir, that does not make me a Marxist. That makes me aware that both parties are here to fuck us over. One towards Marx the other towards… Read more »

Green Mtn. Boy
Green Mtn. Boy
1 month ago

GMM

Don’t know if you have been around the site long but I can assure you, from my reading of Random 71 over time ,he is the furthest thing from a troll.
I suspect he, you and I agree on more than we disagree

Green Mtn. Boy
Green Mtn. Boy
1 month ago

“Only the constitution gives you RIGHTS. Not you imagination, but the Constitution of the United States. He supports the Constitution and has NEVER violated it.” I’m Not from Burlington. The Constitution thru the Bill of Rights doesn’t give any man anything,as those rights preexisted the Constitution and are natural/God given The Constitution is a statement of those rights. Now as to president Trump not violating the Constitution,can we agree that as stated in said Constitution that congress writes law. So when president Trump banned bump stocks by executive fiat, that did not violate the Constitution. He may support the Constitution,I… Read more »

Last edited 1 month ago by Green Mtn. Boy
Superman
Superman
1 month ago
Reply to  Green Mtn. Boy

So HiLIARy would have been better? Grow up.

Green Mtn. Boy
Green Mtn. Boy
1 month ago
Reply to  Superman

Show me where in my reply,I said any such thing, she is evil incarnate.

Every elected officials feet have to be held to the fire, that is the basis for our republics system of checks and balances,I pointed out what is plain to see for anyone, even Clark Kent.

Green Mtn. Boy
Green Mtn. Boy
1 month ago

Not sure they are inbred but they certainly are Marxist’s,overrun with them.