Metropolitan News-Enterprise


Thursday, August 13, 2020


Page 1


Ninth Circuit:

 California Ban on High-Capacity Firearms Magazines Is Invalid


By Sandra Hong, Staff Writer


The Ninth U.S. Circuit Court of Appeals on Friday held that California’s ban on high-capacity firearms magazines violates the Second Amendment, declaring the law is too broad and indiscriminate and allows “no meaningful exceptions for law-abiding citizens.”

The majority opinion, written by Circuit Judge Kenneth K. Lee, upholds a 2017 summary judgment granted by District Court Judge Roger T. Benitez of the Northern District of California, who blocked a voter-approved amendment to California Penal Code §32310 barring gun owners from possessing magazines holding more than 10 bullets, known as large capacity magazines (“LCM”s).

“California’s near-categorial ban of LCMs strikes at the core of Second Amendment—the right to armed self-defense,” Lee wrote. “Armed self-defense is a fundamental right rooted in tradition and the text of the Second Amendment.”

Circuit Judge Consuelo M. Callahan joined in Lee’s decision. District Court Chief Judge Barbara M.G. Lynn of the Northern District of Texas, sitting by designation, dissented.

 ‘Armed Self-Defense’

Employing a strict scrutiny analysis, Lee concluded that the ban is not the least restrictive means of achieving the goal of mitigating mass shootings and violence against law enforcement and the public. He wrote:

“It prohibits possession by citizens who may be in the greatest need of self-defense like those in rural areas or places with high crime rates and limited police resources. It applies to nearly everyone. These are not features of a statue upheld by courts under the least restrictive means standard.”

The Office of California Attorney General had argued that the regulation was not a substantial burden on the Second Amendment since citizens were still allowed to own magazines of less than 10 bullets. Lee rejected that, comparing the right to armed self-defense to that of free expression, explaining:

“[N]o court would hold that the First Amendment allows the government to ban ‘extreme’ artwork from Mapplethorpe just because the people can still enjoy Monet or Matisse. Nor would a court ever allow the government to outlaw so-called ‘dangerous’ music by, say, Dr. Dre, merely because the state has chosen not to outlaw Debussy.”

Public Safety Risks

Becerra had countered that the Second Amendment deserves less protection than other constitutional rights because it posed an inherent danger to public safety.

Lee responded that “individual rights often impose at least some risk on public safety.” He held up the example of the criminal justice system, where “criminals sometimes go free because our society prioritizes individual constitutional rights over concerns that freed offenders may commit crimes again.”

The jurist declined to apply the court’s own precedent in the 2015 case Fyock v. City of Sunnyvale which applied intermediate scrutiny review of a similar LCM ban in Sunnyvale. But, Lee declared, even under that less restrictive intermediate level of review, California’s law would fail, saying:

 “Put simply, California fails to show a reasonable fit between Penal Code section 32310’s sweeping restrictions and its asserted interests.”

In her dissent, Lynn disagreed with Lee’s strict scrutiny analysis of §32310, noting court’s departure from Fyock and the decisions of other circuits in similar cases.

“The record in this case is nearly identical to the records in those other cases, with many of the same expert and studies. I would not depart from those well-reasoned opinions,” Lynn wrote.

She said that while §32310 does implicate core Second Amendment rights, it does not present a substantial burden on the right to armed self-defense.

“[T]he prohibition on LCMs is more analogous to a restriction on how someone exercises their Second Amendment rights, by restricting the number of bullets a person may show from one firearm without reloading.” Lynn wrote.

She noted that laws regulating only the manner in which citizens may exercise a constitutional right are less burdensome. Here, Lynn said, intermediate scrutiny should be applied, in conformity with the view of other circuits.

 “In every case, the court has held that the LCM restrictions at issue satisfy intermediate scrutiny,” Lynn said.

Lee’s majority opinion concluded that other circuit decisions were inapposite because they had examined bans that were “not was sweeping” as §32310. Lynn countered:

“Those distinctions rest on flimsy firmament.”

She noted that all but one of the cases dealt with bans on possession, not only sales, of LCMs.

The case is Duncan v. Becerra, 19-55376.




Feinstein Blasts Ninth Circuit’s Firearms Magazine Ruling

U.S. Sen. Dianne Feinstein, D-Calif., on Friday released the following statement on the Ninth Circuit decision overturning California’s ban on high-capacity ammunition feeding devices.

I’m shocked a three-judge panel of the 9th Circuit today overturned California’s ban on high-capacity ammunition magazines, which hold ten rounds or more. This decision runs contrary to at least seven separate federal court decisions and should be reviewed by a full 11-judge panel of the 9th Circuit.

There is no civilian need for the 100-round magazine used last year in Dayton, where 41 rounds were fired in 32 seconds, killing nine. Or the 33-round magazines used in 2011 in Tucson, where six were killed and 13 injured, including Congresswoman Gabrielle Giffords. Or any other magazine of ten rounds or more. These tools of war don’t belong on our streets.

The judge who authored the opinion was Ken Lee, who promised last year at his nomination hearing to respect precedent. When asked by Chairman Graham, “When there is a precedent on point, whether you like it or not, you are going to apply it, right?” Judge Lee answered succinctly: “Yes.” Today, he proved his answer was hollow.

Judge Barbara Lynn—the sole dissent in the 2-1 decision—noted the majority opinion went against six other federal appellate court decisions, as well as a 2015 ruling by the 9th Circuit itself.

California’s ban on high-capacity magazines is constitutional. It doesn’t infringe on the right to bear arms – that has been decided over and over again in federal court. The clear aim of the ban aims to limit the number of mass shootings that kill dozens of Americans each year. The California law should be upheld.


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