A federal appeals court on Tuesday upheld California’s ban on gun magazines holding more than 10 bullets, reversing a San Diego judge’s previous ruling and clearing the way for decisions in other Second Amendment decisions to move forward.
An en banc panel of the 9th U.S. Circuit Court of Appeals ruled 7-4 that the ban on large-capacity magazines is “a reasonable fit for the government interest of reducing gun violence” and that it “only minimally interferes with the core right of self-defense.”
The opinion — penned by Judge Susan Graber, a Clinton appointee — noted that large-capacity magazines have been used in about three-quarters of gun massacres with 10 or more deaths, and in all gun massacres with 20 or more deaths, over the past half-century.
“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 opinion states.
Such magazines have long been illegal to buy, sell or manufacture in California, but the 2016 law made ownership unlawful. The California Rifle & Pistol Association and several gun owners filed the lawsuit arguing the ban violates their constitutional right to self-defense.
In its ruling, the court wrote that the ban does not constitute a “taking” by the government, because owners may modify existing magazines so they accept fewer rounds of ammunition or can sell them out of state.
The ruling reverses a summary judgment opinion in favor of gun owners by U.S. District Court Judge Roger Benitez in 2019, in which he concluded the law “turns millions of responsible, law-abiding people trying to protect themselves into criminals.”
His decision striking the law was then upheld by a divided three-judge 9th Circuit panel.
The state Attorney General’s Office requested a review of the case by an en banc panel consisting of 11 judges, which heard oral argument in June.
“Today’s decision is a victory for public safety in California,” Attorney General Rob Bonta said in a statement. “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.”
The ruling is relatively short at around 35 pages, with another 100-plus pages filled with dissent from four judges and concurring opinions from other judges that also respond to the dissent.
Judge Patrick Bumatay, a San Diegan recently appointed to the bench by Trump, wrote in a dissent that was joined by two others that the ban should have been struck down. He noted the long tradition of large-capacity magazines in U.S. history, “commonly used by Americans for lawful purposes, like self-defense.” He said such magazines are legally owned by millions of people nationwide.
He faulted the panel’s majority for using a balancing test that holds that the government can infringe on a fundamental right as long as it reasonably fits the objective.
“In reality, this tiers-of-scrutiny approach functions as nothing more than a black box used by judges to uphold favored laws and strike down disfavored ones,” Bumatay wrote. “But that is not our role. While we acknowledge that California asserts a public safety interest, we cannot bend the law to acquiesce to a policy that contravenes the clear decision made by the American people when they ratified the Second Amendment.”
Chuck Michel, president and general counsel of the California Rifle & Pistol Association, called the ruling disappointing and promised to appeal to the highest court.
“We will be appealing to the Supreme Court for a final determination because gun owners deserve to have someone fighting for them and their rights,” Michel, whose law practice is based in Long Beach, said in a statement. “The Second Amendment is a fundamental right, and it is time that courts stop treating that right like a second-class gift from government.”
Two other gun rights cases — both concerning assault weapons — have been put on hold while the 9th Circuit decides the magazine case. First up is a decision on a lawsuit out of Los Angeles that challenges what kinds of guns are defined as assault weapons.
The outcome of the Los Angeles case could then affect another Benitez ruling that struck down California’s ban on assault weapons.
The U.S. Supreme Court, which had been hesitant over the past decade to take up Second Amendment issues, recently heard a case out of New York surrounding the right to carry a concealed handgun outside of the home. If decided on broad issues, the case could have a wide-ranging effect on gun-control laws, including those in California, and clarify the way in which lower courts must scrutinize the constitutionality of such laws.