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

 

From Wikipedia, Government image Public Domain, cropped and scaled by Dean Weingarten

 

The Ninth Circuit Court of Appeals has reversed the three judge panel decision in Duncan v. Bonta, the ban on magazines which hold over 10 rounds. The opinion was released on November 30, 2021.

(The original nomenclature was Duncan v. Beccera.)

At the end of March, in 2019, Judge Roger T. Benitez wrote a well reasoned opinion which 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' 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 which 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 obverse of this argument is 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.

Commentary:  

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 Originalsist 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. Bonta will be appealed to the Supreme Court. It remains to be seen if the Supreme Court will take up the challenge. 

 

©2021 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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