Metropolitan News-Enterprise

 

Wednesday, December 1, 2021

 

Page 1

 

Ninth Circuit:

California’s Large-Capacity Magazine Ban Is Constitutional

 

By a MetNews Staff Writer

 

The Ninth U.S. Circuit Court of Appeals, sitting en banc, yesterday upheld, by a vote of 7-4, a California statute that bans possession of large-capacity magazines for firearms, with one judge lambasting the circuit for relegating the Second Amendment, over the years, to “a second-class right” and a colleague rebuking him for his comments.

Judge Susan P. Graber wrote the majority opinion. She also penned a concurring opinion defending her application of intermediate scrutiny; Judge Marsha S. Berzon authored a concurring opinion, joined in by Chief Judge Sidney R. Thomas and Judges Richard A. Paez, Mary H. Murguia, and Paul J. Watford, taking issue with a dissent by Judge Patrick J. Bumatay; and Judge Andrew D. Hurwitz, in a concurring opinion, criticized Judge Lawrence VanDyke for the tenor of his dissent.

Signing Bumatay’s dissent were Judges Sandra S. Ikuta and Ryan D. Nelson.

Party Lines

Judges voting to uphold the constitutionality of Penal Code §32310, which forbids possession of “large-capacity magazines”—those holding more than 10 rounds of ammunition—were all Democratic appointees (Thomas, Graber and Paez having been chosen by President Bill Clinton and Berzon, Hurwitz, Murgia and Watford by President Barack Obama). The dissenters were Repubican appointees (Ikuta having been placed on the bench by President George W. Bush and Bumatay, Ryan and VanDyke by President Donald Trump).

The ban was enacted by legislation in 2016, with July 1, 2017 being the effective date. Voters that year approved Proposition 63 which added the possibility of incarceration for up to one year for violating the proscription.

A preliminary injunction issued on June 29, 2017, enjoined enforcement of the ban.

Graber’s Opinion

Graber declared in the majority opinion:

“Under the Second Amendment, intermediate scrutiny applies, and section 32310 is a reasonable fit for the important government interest of reducing gun violence. The statute outlaws no weapon, but only limits the size of the magazine that may be used with firearms, and the record demonstrates (a) that the limitation interferes only minimally with the core right of self-defense, as there is no evidence that anyone ever has been unable to defend his or her home and family due to the lack of a large-capacity magazine: and (b) that the limitation saves lives.”

She elaborated:

“About three-quarters of mass shooters possess their weapons and large-capacity magazines lawfully. In the past half-century, large-capacity magazines have been used in about three-quarters of gun massacres with 10 or more deaths and in 100 percent of gun massacres with 20 or more deaths, and more than twice as many people have been killed or injured in mass shootings that involved a large-capacity magazine as compared with mass shootings that involved a smaller-capacity magazine. Accordingly, the ban on legal possession of large-capacity magazines reasonably supports California’s effort to reduce the devastating damage wrought by mass shootings.”

The statute “imposes only a minimal burden on the exercise of the Second Amendment right,” Graber declared. She said that “large-capacity magazines provide significant benefit to soldiers and criminals who wish to kill many people rapidly,” but aren’t needed by law-abiding civilians.

 

—AP

In this file photo, a variety of military-style semi-automatic rifles obtained during a buy back program are displayed at Los Angeles police headquarters. The Ninth U.S. Circuit Court of Appeals yesterday upheld California’s ban on high-capacity magazines, in a split decision that may be headed for the U.S. Supreme Court.

 

No ‘Taking’

Opponents of the ban argued that the outlawing of large capacity magazines that were lawfully purchased constitutes a “taking” by government in violation of due process. Graber countered that there is no taking because the “government acquires nothing by virtue of the limitation on the capacity of magazines, and because owners may modify or sell their nonconforming magazines.”

In his dissent, Butamay said:

“[T]he clear picture emerges that firearms with large-capacity capabilities were widely possessed by law-abiding citizens by the time of the Second Amendment’s incorporation. In that way, today’s large-capacity magazines are “modern-day equivalents’” of these historical arms, and are entitled to the Second Amendment’s protection.”

VanDyke’s Dissent

VanDyke’s dissent was more spirited. The jurist wrote: “The majority of our court distrusts gun owners and thinks the Second Amendment is a vestigial organ of their living constitution. Those views drive this circuit’s caselaw ignoring the original meaning of the Second Amendment and fully exploiting the discretion inherent in the Supreme Court’s cases to make certain that no government regulation ever fails our laughably ‘heightened’ Second Amendment scrutiny.”

He went on to remark:

“On one hand, the majority ignores the fact that California’s claimed reason for its ban—mass shootings— involves a harm that, while tragic and attention-grabbing, is thankfully extremely rare by any statistical metric. You are much more likely to be randomly injured or killed by a drunk driver than a mass shooter. But on the other hand, the majority emphasizes the rarity of any individual American’s use of ammunition in self-defense, latching onto California’s argument that only 2.2 rounds are used on average in a self- defense shooting, and concludes that any more rounds than that are thus outside the ‘core’ of the Second Amendment.

“We might call this Version 2.2 of the Second Amendment. It cannot be the right way to analyze an alleged violation of the right to bear amis. The average number of times that any law-abiding citizen ever needs to ‘bear arms’ at all in a self-defense situation is far below one—most people will (thankfully) never need to use a gun to defend themselves. Thus, applying the majority’s rarity analysis, possession of a gun itself falls outside the ‘core’ of the Second Amendment.”

High Court Precedent

He argued that this ignores the view of the U.S. Supreme Court expressed in its 2008 decision in District of Columbia v. Heller that ‘self-defense...was the central component’ of the Second Amendment notwithstanding the rarity of having to use arms in self defense.

“So the majority’s rarity balancing isn’t just lopsided—it starts from the wrong premise. We would never treat fundamental rights we care about this way, particularly those expressly enumerated in the Constitution.”

VanDyke commented that the Ninth Circuit “has trimmed back” Second Amendment rights “at every opportunity—to the point that now, in the nine Western states covered by our court, the right to ‘keep and bear arms’ means, at most, you might get to possess one janky handgun and 2.2 rounds of ammunition, and only in your home under lock and key,” adding:

“That’s it.

“That’s ridiculous….”

Hurwitz took exception to VanDyke’s reference to the majority’s distrust of gun-owners, saying:

“That language is no more appropriate (and no more founded in fact) than would be a statement by the majority that today’s dissenters are willing to rewrite the Constitution because of their personal infatuation with firearms. Our colleagues on both sides of the issue deserve better.

“I recognize that colorful language captures the attention of pundits and partisans, and there is nothing wrong with using hyperbole to make a point. But my colleague has no basis for attacking the personal motives of his sisters and brothers on this Court. His contention that prior decisions of this Circuit—involving different laws and decided by different panels—somehow demonstrate the personal motives of today’s majority fails to withstand even cursory analysis. By such reasoning, one also would have to conclude that my friends in today’s minority who, like me, are deciding a Second Amendment case for the first time, are also driven by personal motives.”

Summary Judgment Reversed

The majority’s opinion reverses a summary judgment in favor of the opponents of the ban granted by District Court Judge Roger T. Benitez of the Southern District of California on March 29, 2019. Benitz found that the statute violates the Second Amendment, and the Takings Clause of the Fifth Amendment.

The summary judgment was affirmed by a three-judge panel on Aug. 14, 2020. Circuit Kenneth K. Lee wrote for the majority. He was 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.

An order granted a rehearing en banc was issued on Feb. 25, 2021.

California Attorney General Rob Bonta yesterday issued a statement saying:

“Today’s decision is a victory for public safety in California. Gun violence is an epidemic in this country, but laws like our ban on large-capacity magazines are commonsense ways to prevent this violence, including devastating mass shootings. I’m thankful to the Court for giving this case a second look, and confirming what we know to be true: our laws keep Californians safe while allowing law-abiding gun owners to exercise their constitutional rights.”

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

lant’s lawyers in the USC case.

 

Copyright 2021, Metropolitan News Company