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Monday, August 31, 2020


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A.G.’s Office Seeks En Banc Review of Second Amendment Case

State Challenges Aug. 14 Decision Which Affirms District Court’s Bar on Enforcement of Amendment to Statute Created by Initiative Barring Possession of Weapons With Large Capacity Magazines


By a MetNews Staff Writer


The Office of California Attorney General on Friday filed a petition in the Ninth U.S. Circuit Court of Appeals seeking an en banc review of a three-judge panel’s Aug. 14 2-1 decision declaring California’s ban on high-capacity firearms magazines violates the Second Amendment.

“This case involves a question of exceptional importance, affecting the safety of every Californian,” the state’s petition contends.

Circuit Judge Kenneth K. Lee wrote the majority opinion in the case, joined by Circuit Judge Consuelo M. Callahan. District Court Chief Judge Barbara M.G. Lynn of the Northern District of Texas, sitting by designation, dissented.

The opinion affirms a summary judgment granted in 2017 by District Court Judge Roger T. Benitez of the Northern District of California blocking enforcement of Proposition 63 which amended California Penal Code §32310 to ban the possession of weapons with large capacity magazines (“LCM”s), which hold more than 10 rounds of ammunition.

Lee’s Opinion

Lee acknowledged that the action came in “the wake of heart-wrenching and highly publicized mass shootings,” but said:

“[E]ven well-intentioned laws must pass constitutional muster. California’s near-categorical ban of LCMs strikes at the core of the Second Amendment—the right to armed self-defense. Armed self-defense is a fundamental right rooted in tradition and the text of the Second Amendment. Indeed, from pre-colonial times to today’s post-modern era, the right to defend hearth and home has remained paramount.”

Lynn protested that the panrel was departing from the Ninth Circuit’s 2015 decision in Fyock v. City of Sunnyvale and runs counter to decisions of other circuits, commenting:

“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.”

State’s Petition

Deputy Solicitor General Samuel P. Siegel said in the brief filed Friday.

“Although the panel held that California’s LCM law failed strict scrutiny, it reasoned in the alternative that the law would fail intermediate scrutiny….That conclusion warrants en banc review in its own right, because it conflicts with Fyock and is inconsistent with every other federal appellate decision applying intermediate scrutiny to a similar statute….Each of those decisions required the government to introduce evidence showing that the LCM law advanced a ‘substantial and important’ government interest…, and to establish a substantial relationship between that interest and the LCM restriction….Each decision properly concluded that the law in question survived intermediate scrutiny in light of the compelling public safety interests at stake.”


Siegel went on to say:

“California’s LCM law is a reasonable regulation that is consistent with the Second Amendment….

“What California’s LCM law does do is protect the safety of the public and law enforcement officers, at a tune when mass shootings are occurring with disturbing frequency. Although not all mass shootings involve LCMs…, those committed with LCMs are far deadlier—inflicting an average of nearly three-and-a-half times as many casualties as those that do not.”

‘Devastating Practical Effects’

The deputy solicitor general added:

“The significance of this case thus extends beyond the fact that the panel’s decision departs from this Court’s precedent, creates an inter-circuit conflict, and would engender confusion in the law. The panel’s decision to invalidate California’s LCM law in its entirety could also have devastating practical effects throughout the State. The Court should grant rehearing en banc to eliminate the discord that the panel’s decision would otherwise create.

California Attorney General Xavier Becerra said in a statement Friday:

“Our commonsense gun safety measures here in California have a track record of success in doing what they were meant to do—keep our communities safe. We disagree with the [Ninth Circuit’s] initial decision and will continue to use every tool we have to defend the constitutionality of our laws.”

Michel Comments

C.D. Michel, senior partner in Michel and Associates in Long Beach and one of the attorneys for the plaintiffs/appellees, commented:

“The governor and attorney general have steadfastly refused to respect the civil rights guaranteed by the Second Amendment, so their decision to seek review of the appellate court’s ruling in Duncan case by a larger en banc panel of judges was expected.”

Michel, who is president and general counsel for the California Rifle & Pistol Association (CRPA”), continued:

“CRPA stands ready to support this case at this next level, and all the way to the Supreme Court.

“By potentially sending this case to the Supreme Court, this case may present the opportunity to set things straight on the broader issue of what the standard of review test should be when considering any Second Amendment challenge. The Supreme Court seems inclined to do away with the complicated subjective tests that many courts have wrongly applied in Second Amendment cases, in favor of a clearer more objective ‘originalist’ approach that considers the text, history and tradition of a law to determine what infringements might be tolerated.”

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


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