Ninth Circuit En Banc Panel: CA can Ban Magazines over 10 Rounds

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Ninth Circuit En Banc Panel: CA can Ban Magazines over 10 Rounds

U.S.A.-( The Ninth Circuit Court of Appeals has reversed the three-judge panel decision in Duncan v. Becerra, the ban on magazines that hold over 10 rounds. The opinion was released on November 30, 2021.

Update: The case nomenclature has changed from Duncan v. Becerra to Duncan v. Bonta, because of the change in the California Attorney General.

At the end of March, in 2019, Judge Roger T. Benitez wrote a well-reasoned opinion that found the California ban on magazines of over 10 rounds to be an unconstitutional infringement on the Second Amendment right to keep and bear arms.  The case was appealed to a three-judge panel. The panel, in a split decision, upheld Judge Benitez’s opinion, on August 14, 2020.

As has become common in cases involving the Second Amendment in the Ninth Circuit, the case was then asked to be heard by an en bank panel of the Ninth Circuit. The en banc panel issued its opinion on November 30, 2021. The en banc panel reversed the decision of Judge Benitez at the Circuit court and of the three-judge pane. They found a ban on magazines that can hold more than 10 rounds to be an acceptably small infringement on the core Second Amendment right. From the decision Page 31-32:

Defendant does not dispute that California’s ban on large-capacity magazines implicates, at least in some measure, the core Second Amendment right of self-defense in the home. See, e.g., Pena, 898 F.3d at 977 (assuming without deciding that firearm regulations implicate the core right); see also Worman, 922 F.3d at 30, 36 (assuming without deciding that Massachusetts’ ban on large-capacity magazines implicates the core right); Heller II, 670 F.3d at 332 (declining to decide whether the District of Columbia’s prohibition on large-capacity magazines “impinge[s] at all upon the core right protected by the Second Amendment”). Instead, Defendant argues that the ban imposes only a small burden on the Second Amendment right and that, accordingly, intermediate scrutiny is the appropriate lens through which to view California’s law. We agree. Just as our sister circuits unanimously have applied intermediate scrutiny to other laws banning or restricting large-capacity magazines,3 we hold that intermediate scrutiny applies to California’s ban.

Later on, in a concurring opinion, Judge Hurwitz writes:

The people of California should not be precluded from attempting to prevent mass murders simply because they don’t occur regularly enough in the eyes of an unelected Article III judge.

The point of this argument is that any excuse is acceptable to circumvent Constitutional rights.

One of the primary purposes of the Constitution is to prevent majorities from infringing on the rights of minorities, in moments of rhetorically fanned passion or fancy.

The en banc opinion decisively challenges the Second Amendment, indeed, the entire concept of limited government, and the Heller and McDonald decision upholding the Second Amendment as an individual right which limits what the government may do.

The en banc decision is directly challenged by a vigorous dissent. From the dissent on page 104:

Contrary to the Second Amendment, however, our court upholds California’s sweeping ban on so-called large-capacity magazines.1 It can’t be because these magazines lack constitutional protection. The majority assumes they are. And it can’t be because the ban is longstanding. California’s law is of recent vintage. Rather, the law survives because the majority has decided that the costs of enforcing the Second Amendment’s promise are too high. The majority achieves this result by resorting to the tiers-of-scrutiny approach adopted by this court years ago. Under that balancing test, the government can infringe on a fundamental right so long as the regulation is a “reasonable fit” with the government’s objective.


The dissent lays it out clearly. The Ninth Circuit’s en banc opinion eviscerates the Second Amendment. If 11 rounds is too many, why are 9 rounds acceptable, or 5?

Why should a person be allowed to own any semi-automatic, or any gun with more than 1 or 2 shots? There is no end to this argument, once “in common use” is breached.

The decision comes to pass because the Supreme Court has been unwilling to correct the lower courts as they kept chipping away at the Second Amendment, Heller, and McDonald.  That may have been understandable given the split nature of the Supreme Court of the time. Neither Originalist or Progressives were sure of the outcome.

The Ninth Circuit opinion admits it is infringing on Second Amendment rights, cites decisions from previous cases the Supreme Court has declined to hear in other Circuits and challenges the Supreme Court to do something about it.

This is the basic standard of law as applied by Progressive ideology. The Constitution is seen as an impediment to be overcome. It interferes with the ability of the ruling class to rule as they see fit.

The ruling class includes almost all of the old media, which issues opinions to the masses; the tech oligarchs, which withholds alternative information from the masses, to obtain the support they desire for their policies; and what most have come to call the “deep state”.

If the Constitution blocks what the ruling class wants; then the Constitution must be changed by the courts, as the amendment process is considered too long and cumbersome by the ruling class.

The Ninth Circuit opinion in Duncan v. Beccera will be appealed to the Supreme Court. It remains to be seen if the Supreme Court will take up the challenge.

About 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.

Dean Weingarten

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These judges admit to the infringement, a direct violation of the very text. Thus, they should be removed from the bench and remanded to a life sentence in prison. We shall not abide by their unconstitutional ruling, for “it is a man’s right and duty to DISOBEY an unjust law”- Jefferson. And according to SCOTUS, a law that is repugnant to the Constitution has no Legal authority and presents no obligation to be followed. The 2nd restricts and prohibits the government from having ANY AUTHORITY over citizens’ right to keep & bear arms. The gov has no power to legally… Read more »



What do you think about enforcers, like Don, who will enforce any unjust law in order to keep their job and pension?

If “civilians” have a duty to disobey an unjust law (and risk imprisonment), do enforcers have a duty to not enforce an unjust law?

You have seen a dozen or so former enforcers and their adoring fans criticize this line of thinking. What is your opinion?

Last edited 11 months ago by JSNMGC

Hello, three amigos (former enforcers/adoring fans).

Another beautiful day – are you going outside and do some physical activity, or stand your post at that down button in case an uppity “civilian” suggests the only way gun control laws can be effective is if state, county, city/town enforcers enforce them (or assist federal enforcers in enforcing them).

Look at the length government employees will go to use the power entrusted to them to support each other’s tyranny:


Heller announced a straightforward analytical framework that we are not free to ignore: the Second Amendment encompasses the “right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Id. at 635. As a “prima facie” matter, that right extends to “all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” Id. at 582. Any regulation that infringes on the exercise of this right implicates conduct protected by the Second Amendment. (Page 120 of dissent)


M4’s are bearable arms…


howitzers are man transportable ,the new ones any way


Too bad Scalia screwed us in Heller by saying some infringement is ok.


A majority opinion, especially one of judges, is not good enough to invalidate our Constitution. The people weighing in to say Benitez’s stay of his ruling was a good thing were wrong. The government is not entitled to the benefit of the doubt when it enacts infringements on codified rights that it is sworn to uphold. The people are.


The “Ninth” CIRCUS Court needs to learn what is written in OUR American Constitution. These ANTI-AMERICAN COMMUNIST “judges” MUST be REMOVED and DISBARRED for judging on their FEELINGS instead of the LAW!!!!


Well, back when Bubba and 3l120 roamed the California streets, it would be best not to “give them any lip,” or you would get a beating as well as being arrested.

You’re not supposed to “give them any lip” – you are supposed to grovel when enforcers enforce never-ending gun control.


Advice from several former government employees who caution against “giving lip” and instead, show you how to grovel:

Copsplaining should always be respected.


That guy wasn’t having any of those suggestions.

That walk . . .


I love seeing them do the walk of shame.


Remington went home safe. Does anything else matter?

The Tucson Police will investigate themselves and find no wrong doing.

They will conclude Remington acted in accordance with departmental policy.

A judge will deterimine that since Remington acted in accordance with departmental policy, he is entitled to not-so-qualified immunity.

Remington will go on to do whatever he wants to do.

All the other cops will support him.

A “civilian” will suggest that maybe there was another way to resolve the situation.

A retired cop will respond: “WHY dON’t YOU beCOMe a COP and ShOw US ALL How it’s DoNE ?!!!”


The cop only fired nine times to get two (maybe three or four) hits on a moving target. Professional.


Anyone else getting tired of government employees doing things for our “safety?”


I found some more comments on this incident. It sounds like Remington scored 9 of 9 hits. That’s even funnier for different reasons. I wonder why he finally stopped shooting?

ARF-Cops are tripping over themselves backing Remington.


I wanna know why those government thugs weren’t wearing masks!


The 2A is clear, either you are in compliance or not, just like pregnancy!

WI Patriot

That’s fine, it’s not going to stop anyone from having them though…

Green Mtn. Boy

Let’s Go 9 th. Circus.

Green Mtn. Boy

The 9 th. circus made a un Constitutional ruling that will now have to end up before SCOTUS as any and all gun control laws are un Constitutional.


This is complete bull$h!t. Plain and simple. “SHALL NOT BE INFRINGED”
Says it all. Stop allowing these control freaks run our country, the second Amendment protects all the rest. Their ignorance is never ending. Perhaps we should simply ban liberals and leftists from owning guns since they are more anti American than anyone.


The magazines that they say are 30 round magazines are only 10 round magazines for my 458 SOCOM. Suck it, lefties.


and the kommiefornia bull poop rolls on. To think that I am grateful that I live in OreGONE and left kommiefornia is sad because kommiefornians have moved here and messed it up and are making it worse as their numbers grow. Our governor is from another state and wants only guns that hold 5 rounds to be legal so long as it is not semi auto, for now. I am seeing allot of plates and meeting people that are moving here from all over the country and I know they are demonratts by their Subaru and Prius in the parking… Read more »

Country Boy

“They found a ban on magazines that can hold more than 10 rounds to be an acceptably small infringement on the core Second Amendment right.”

….shall NOT BE infringed. which means in ANY manner.


If anyone ever again decides to read the Second Amendment honestly, it is clear that Americans were intended to be armed to the extent of being able to defend their nation and its freedoms against any adversary. Americans are no where near that well prepared, although their civilian strength remains formidable compared to most countries, where they are sometimes fully stripped of the right to own arms. As Americans continue to buy into the lie that government will be their benevolent protector (much as Ukraine bought into the lie that America would be its benevolent protector), they only invite a… Read more »


It doesn’t matter at a practical level.

Freedom week invalidated enforcers’/prosecutors’ ability to jam anyone up on magazine capacity laws (unless a magazine has a date/date code after freedom week).

Judge Roger Benitez made it possible.

There are still some CA enforcers who hassle people, but all those people have to do is remain quiet. It is up to the government employees to attempt to prove they did not buy their magazines during freedom week.

Even those CA enforcers who enforce CA gun laws with great enthusiasm are concluding they can’t do anything. They aren’t happy, which is good.

Last edited 11 months ago by JSNMGC

Look at all the enforcers (four down voters at the time this was written), who come here and pretend to be pro 2nd Amendment, who are mad that “civilians” are laughing at them and the unconstitutional laws they attempt to enforce.

Last edited 11 months ago by JSNMGC

its just the crooked cops , oh dam did i say that ,dont trust any of them; what I saw with dea think I only met 10 or so good cops trying to fix system none stayed (met frank serpico, idealist, but not even he stayed)


It’s interesting to see enforcers come on here and indicate they would enforce laws requiring the registration of semiautomatic rifles and the other enforcers don’t down vote them. Then, when someone points this out, that person is down voted. That says a lot about the mentality of enforcers in general. People who give enforcers unequivocal support should really be paying attention. Federal and state gun control laws are only meaningful because state, county, and city/town enforcers enforce those laws or cooperate with the people who are enforcing those laws. There is a culture within law enforcement that supports all people… Read more »


“Was that wrong? Should I not have done that? I tell you, I gotta plead ignorance on this thing, because if anyone had said anything to me at all when I first started here that that sort of thing is frowned upon… you know, cause I’ve worked in a lot of offices, and I tell you, people do that all the time.”


Nice Costanza quote!


I’m sure the idiot’s defense was similar.

We need a national data base of bad cops who have already done bad things.

It needs to be publicly accessible.


Agreed! They should also lose their license. I’m not 100% sure about every other state but I know here in Texas you must have a Basic Peace Officer Proficiency Certification issued by the Texas Commission on Law Enforcement in order to work as a LEO. It is absolutely disgusting that some of these government thugs can be fired for things that would have you or I serving prison sentences and get a job one town over doing the same thing. They absolutely, at the very minimum, need to lose their license and be put on a nationwide blacklist.


Part of the requirement for getting a license should be to spend eight hours with a smart ass civilian reviewing videos of cops doing incredibly stupid and abusive things.

Smart ass civilian: “Do you see what he did wrong there?”

Candidate: “Yes.”

Smart ass civilian: “Don’t do that.”

Candidate: “What if I see another cop doing that?”

Smart ass civilian: “Don’t let him.”


That database, combined with better limitations on qualified immunity, should improve some attitudes.

Last edited 11 months ago by JSNMGC

On July 9, 2020 Rodney Dunn wanted a woman to pull her car over on a narrow shoulder immediately (she was speeding). She slowed down and put her emergency flashers on. The cop couldn’t wait for her to get to the next exit (less than 1 mile ahead), so he did a PIT maneuver on her resulting in her car flipping over and crashing. She was pregnant. The cop continued insisting he was right even after she crashed and claimed he didn’t know what she was doing in her vehicle. Put this in your search engine: Cop Gets Sued After… Read more »


I’m far more concerned about Sr. Cpl. Rodney Dunn of the Arkansas State Police than I am of BLM, Antifa, or home invaders.

The reason should be clear to all.