Ninth Circuit En Banc Panel Hears Challenge to Ban on Standard Capacity Magazines

Standard Capacity Magazines

U.S.A.-( An 11-judge panel, sitting en banc, heard oral arguments in Duncan v. Bonta (formerly Duncan v. Becerra). The CRPA lawsuit, which challenges California’s flat ban on magazines capable of holding more than 10 rounds of ammunition, was the first successful constitutional challenge to bans on so-called “large-capacity magazines” in the country. But with a likely unfriendly en banc panel—composed of 7 judges appointed by Democrats and just 4 appointed by Republicans—that victory hangs in the balance.

As reported previously, a three-judge panel of the Ninth Circuit held in August 2020 that California’s ban on standard-capacity magazines is unconstitutional. That decision struck down California’s statewide prohibitions on both possessing and acquiring such magazines and, in doing so, upheld a 2019 decision from the United States District Court in San Diego secured by CRPA and its attorneys at Michel & Associates, P.C. That decision sparked what we have all come to know as Freedom Week, during which California gun owners lawfully purchased hundreds of thousands—if not millions—of standard-capacity magazines. The historic Duncan panel decision was, unfortunately, vacated in light of the Ninth Circuit’s decision to rehear the case en banc.

Yesterday’s oral argument sheds some light on what we can expect from the court now. Indeed, as was expected, many of the judges appeared hostile to CRPA’s position that the statewide ban on magazines capable of holding more than 10 rounds violates both the Second Amendment and the Takings Clause. For instance, several judges focused on how often law-abiding citizens must fire more than 10 rounds in self-defense, seemingly agreeing with DOJ’s claim that that the rarity of such events proves that they are not in “common use” for lawful purposes.

But Judge Lawrence VanDyke, an appointee of President Trump, astutely pointed out that the DOJ is trying to have its cake and eat it, too. As Judge VanDyke observed, the DOJ relies on the relative rarity of defensive gun use requiring over 10 shots to support its position that laws prohibiting standard-capacity magazines only impose the most minor burden and are thus constitutional. While, at the same, the DOJ argues that the government can flatly ban all magazines over ten rounds because of the even more rare circumstance in which the mere seconds it would take to reload a firearm during the already statistically rare mass shooting might result in a life saved. As attorney Erin Murphy, arguing for CRPA, pointed out, this is not the sort of hypothetical situation that justifies banning constitutionally protected conduct—the least narrowly drawn form of restriction available.

CRPA now awaits yet another ruling on its historic gun-rights lawsuit.

The decision could come at any time, but it could be held up in light of New York Rifle & Pistol Association v. Corlett, which the Supreme Court recently agreed to hear and could have a significant impact on Duncan. But no matter what happens, CRPA is poised to continue its fight against California’s unconstitutional ban on commonly possessed magazines.

CRPA’s efforts in Duncan and the many other lawsuits fighting for the rights of California gun owners would not be possible without the support of our members and the public. Please help CRPA continue the fight against California’s unconstitutional laws by donating to the CRPA Foundation.

And make sure you are subscribed to CRPA email alerts and visit the CRPA website for the latest developments in Duncan.


The California Rifle & Pistol Association (CRPA), founded in 1875, is a nonprofit membership and donor supported organization with tens of thousands of members throughout California. We need you!CRPA logo

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It is an error for attorneys fighting these cases to refrain from saying what the 2nd amendment is really about. It is not about “self defense.” It is about the ordinary people always being sufficiently armed to deter tyranny or, failing that, to eject the tyrant. It is about having the power to make war, not to stop a robbery. So, it is essential that the people be sufficiently armed to overthrow the tyrant and the tyrant’s forces. At the very least, that encompasses the weapons of an ordinary infantryman. Until the issue is properly framed, judges are going to… Read more »


Re: “It is about the ordinary people always being sufficiently armed to deter tyranny or, failing that, to eject the tyrant”

True. And that purpose is succinctly stated in the Preamble to the Bill of Rights where it says “The convention of a number of states having at the time of their adopting of the Constitution, expressed a desire, in order to prevent misconstruction or abuse, of its powers that further declaratory and restrictive clauses should be added”


“No free man shall ever be debarred the use of arms.”
 Thomas Jefferson
“The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.”
 Thomas Jefferson
“The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.”
 Thomas Jefferson


So??? Whoopedy Doo! I crack up when I see these articles. Many people wait breathlessly to hear the “decision” of these courts and judges. My rights don’t come from courts or judges. The only decision I care about took place in 1791, all else is tyranny, and I act accordingly on a daily basis.


I am liking Andrew Jackson more and more each day. Courts can decide all they want. I say no. Now, try to enforce your evil dictates.


This is how Becerra and all democrats game the system. If lower courts rule in their favor, game over the law stays. If ruled against, they take their challenge to the 9th Circuit, but the law still stays. If 9th rules in their favor game over, it’s law. If against, they challenge the 9th to make sure they really meant their decision, if the 9th changes their mind it’s law. If they lose, the law remains, and they take their challenge to the Supreme Court which may or may not hear the case but regardless the bad law stays.


Abolish the 9th Circuit Court…


They argue that prevalence of “LCMs” is not that people choose “LCMs”, it is because that I saw what is sold. True, I do not see neutered mags in a Texas retailers – but that is because standard magazines are overwhelmingly preferred by customers. Why would retailers carry anything customers don’t want? Every online retailer carries both standard and restricted magazine (for sale to restricted states). Be interesting to here their sales statistics- just how many restricted magazines do they sell in free states? Offhand see four reasons to by low cap (1) stupid customer (2) planning to move or… Read more »


isn’t it what the firearm manufacturer designs and ships with the firearm that is the standard capacity magazine and not a (large capacity magazine)? and they can be from 8-30 depending on the firearm. why should a government have the authority to dictate what the limit should be? the government dictating how many rounds in a magazine is like telling people that they have to remove 4 connecting rods in their v8 engine because that is enough for them to drive their car. it is severely decreasing the value of the item. a couple of the judges were especially condescending… Read more »


Minor point of order – you have now met a shooter who prefers lower capacity magazines, me. However that said that’s a niche case. In my use-case, I prefer 20 round magazines for my truck/backpack SBR AR-15 and my light-weight target AR-15. Less weight and bulk that can get snagged on things. However, I do keep a number of standard-capacity 30-round magazines for my regular AR-15’s (I have several) and use them regularly as well. In this case, it’s use-case specific, not that I think that standard capacity magazines are a problem – quite the contrary, I have a couple… Read more »


There is a small market in free states for 10 round AR magazines.
I have a Ruger American in 5.56mm. I have 5-10 rd. mags for it and for shooting ARs from the bench. I normally load 3 rounds for bench shooting. Other than that every thing is 30 round mags. There should be no restrictions.

Last edited 1 year ago by Don

Let’s take back the House and the Senate.

Then pass a constitutional amendment that states if you are anti-Second Amendment (ie want any form of gun control)then you are not allowed to have security or people around you that have any sort of firearms.
That includes making movies or TV shows with firearms in them.
You’ll see how fast they change their stance on the Second Amendment.


I Second That Motion…


And any statute proposed to limit the 2nd amendment must be equally applied to all amendments and enumerated rights. Want to pass a law requiring a license to carry? Must pass a law requiring license to pray, to speak in public, to post social media dribble, to author news releases, to get a fair trial of your peers, etc. See how the American people react to your proposed restrictions…


I would love to know what you think will happen when Congress is “taken back”. Republicans have had complete control of the federal government on numerous occasions since the first law violating the 2nd amendment was enacted and all they’ve ever done is enact more arms laws.


When she ran for office, Cynthia Lummis trotted out all the usual “born in Wyoming,” “rancher,” “pro-military,” “pro-2nd Amendment,” “God-fearing,” “conservative Republican,” etc. Her campaign ads were full of pictures of her looking all “western” posing with an over/under. She even held the shotgun in a more proficient manner than Obama did when he released photos holding an over/under to appeal to all the Democrat and Independent gun owners. Now we have the most anti-2nd Amendment person ever to be nominated for the Director of the BATFE (he’s even worse than Chuck Canterbuy – Trump’s nominee). Has she put out… Read more »


You ever notice how they always pose with hunting guns like the good little Fudds they are? We could have had the guy who shot the tax code with a AR for President but instead we got the orange infringer.


It’s so contrived.

Lummis’s opponent was doing fairly well until Trump endorsed Lummis.

The prevailing attitude was that if Trump endorsed her she must be good. People here had the same mindset about Barr. I told them about Barr’s past and they got mad and said he must be good because Trump chose him. Now they don’t talk about Barr.

Big George

Well, Nancy Piglosi said HER ‘bodyguards’ ONLY carry 10 rounds or less in their guns after she was almost robbed of a whole pint of her fav French vanilla ice cream!!…I believe her…really…I do…really.