California AG Asks Ninth Circuit for En Banc Review of Magazine Decision

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

U.S.A.-( On 28 August 2020, Attorney General Becerra of California petitioned the Ninth Circuit to review the case of Duncan v. Becerra. The review would be of the three-judge panel which held the California ban on magazines that hold over 10 rounds of ammunition to be unconstitutional. From the Petition for En Banc:


California respectfully petitions for rehearing en banc of the panel’s decision, which invalidates a state law restricting large-capacity magazines that can hold more than 10 rounds of ammunition (LCMs). California voters adopted the current LCM law in response to a spate of mass shootings in this State and across the Nation, and in light of evidence establishing the severe toll inflicted by mass shootings involving LCMs. A divided panel of this Court, however, held that this law is among the policy choices that the Second Amendment takes “off the table.” District of Columbia v. Heller, 554 U.S. 570, 636 (2008).

Judge Roger T. Benitez issued his opinion on 29 March 2019. It is a beautifully written opinion, based on the philosophy that the Constitution means something, and should only be altered by amendment. Judge Benitez found the magazine ban to be unconstitutional.

The three-judge panel issued their opinion on 14 August 2020. The majority opinion is based on the same philosophy, upholding Judge Benitez’ opinion. One judge dissented, based on the philosophy the Constitution should be interpreted to mean whatever judges deem appropriate for the times.

The petition for review of the case by an en banc panel of the Ninth Circuit does not mean the review will automatically be granted. The Ninth Circuit could vote not to review the case en banc.

Whether the Ninth decides to hear the case en banc or not, the process takes time. In a previous Second Amendment case, Peruta, the process for an en banc review took 18 months from the time Kamala Harris, then the California AG, petitioned for an en banc review. Here is a timeline of significant events for the Peruta case from AG Kamala Harris’ petition for en banc review:

The process with Peruta took a bit over 18 months. In the Peruta case, it was another year before the Supreme Court refused to hear the case.

It is impossible to predict the timing of appeals cases. If we use Peruta as a yardstick, it could be two and a half years before the Supreme Court even decides whether to hear the case or not. A great deal can happen in two and a half years.

If President Trump is re-elected, he may have the opportunity to appoint another Supreme Court justice during that period.

If President Trump is not re-elected, either former Vice President Joe Biden may have such an opportunity, or plausibly, Senator Kamala Harris may have become president and appoint a justice to the Supreme Court.

It is possible but unlikely, the Ninth Circuit and the Supreme Court would expedite matters and push the case through in nine months.

I expect the stay on the ruling by Judge Benitez to continue through the process, until either the Supreme Court issues an opinion, or refuses to hear the case.

Do not expect quick action.

If the Ninth votes not to review the case en banc, everything will be sped up by as much as 18 months.

It is reasonable to expect the results of the en banc vote before the end of the year.

About Dean Weingarten:Dean Weingarten

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

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When half of the country does not believe in the Constitution the other half cannot understand the Constitution this is the result. We have been robbed of our legacy by public education and dishonest political classes. This issue should not even be a question. Gun control is the original Jim Crow, the original and most comprehensive subversion of our rights next to slavery itself. So riddle me this: why do so many Americans trust government that does not trust them?


What’s there to review? Becerra has every resource at his disposal to tie up a court decision if he doesn’t like it. Of course if the decision went his way, he would praise that very court for being so forth right. Bottom line, he lost.

uncle dudley

In the old days a supreme court whether be at state level or the federal level made their rulings based on law and the constitution, but no longer it seems. Politics of the day rules whether it is lawful or not and the American people have let these so called judges get away with it. The U.S. supreme court needs to rule in favor of the constitution and put these unlawful laws in the trash and tell the people the founding documents are the law of the land. No more trying to limit the second amendment by these anti gun… Read more »


Dean, concise as usual…you said

If the Ninth votes not to review the case en banc, everything will be sped up by as much as 18 months.”

Excuse my fogginess, if they refuse to review the case it stands and we can buy any mags we want?

Ryben Flynn

The 9th Circus for the Southern District of California is evenly split with Clinton/obama appointees and Bush appointees 8-8 with 8 vacancies unless some have been filled by President Trump.
As of March 6th, 2020.
en dot wikipedia dot org/wiki/United_States_District_Court_for_the_Southern_District_of_California#Current_judges