December 2, 2021

In a split decision by an en banc panel in the case of Duncan v. Bonta, the U.S. Court of Appeals for the Ninth Circuit upheld California’s ban on magazines with a capacity of more than ten rounds (often referred to as large-capacity magazines). In so doing, the court reversed a decision by Judge Benitez of the U.S. District Court for the Southern District of California, which had declared the ban unconstitutional on the basis that it violated the Second Amendment, and enjoined California from enforcing the ban.  A three judge panel of the Ninth Circuit had previously affirmed his decision, but earlier this year, the Ninth Circuit granted California’s petition for rehearing en banc, and vacated the prior decision by the three judge panel.
In 2016, the California Senate passed Bill 1446, which banned possession of large-capacity magazines and imposed monetary fines for violations. Later that same year, California voters approved Proposition 63 which made it a crime, punishable by up to one year of imprisonment, for any person to possess a large-capacity magazine. The plaintiffs argued that the ban violated their Second Amendment rights, while the State of California argued that large-capacity magazines pose a threat to the public and law enforcement because they are often used in mass shootings.
In Tuesday’s decision, the court was split seven to four.  The seven judges in the majority had all been appointed by Democratic Presidents, while the four dissenting judges had been appointed by Republican Presidents. The majority opinion by Judge Susan Graber, a Bill Clinton appointee, stated that, “the ban on legal possession of large-capacity magazines reasonably supported California’s effort to reduce the devastating damage wrought by mass shootings.” The majority further stated that the ban was a “reasonable fit for the important government interest of reducing gun violence” and interfered “only minimally” with a gun owner’s right to self-defense.  Judge Lawrence VanDyke, a Donald Trump appointee, wrote in a dissenting opinion that the “majority of our court distrusts gun owners and thinks the second amendment is a vestigial organ of their living constitution.” The dissenting judges noted that “these magazines are lawfully owned by millions of people nationwide” and warned that California’s law, if applied across the U.S., would “require confiscating half of all existing firearms magazines in this country.”
The decision by the en banc panel, which is binding on all judges in the Ninth Circuit, including those on the Court of Appeals, may signal that another decision by Judge Benitez that declared California’s “assault weapons” ban to be unconstitutional in the Miller v. Bonta case, may be in danger of being reversed on appeal.  The lenient standard of review employed by the majority reinforces the importance of the appeal currently pending before the Supreme Court in the case of New York State Rifle & Pistol Association, Inc. v. Bruen, involving a Second Amendment challenge to New York’s concealed carry law, in which the Supreme Court heard oral argument on November 3, 2021.  If the Supreme Court reverses the decision in that case, it may clarify the proper standard of review to be applied in Second Amendment cases, which could potentially be used to overturn yesterday’s decision by the Ninth Circuit.
Plaintiffs in the Duncan v. Bonta case will likely file a petition for a writ of certiorari to the U.S. Supreme Court. Renzulli Law Firm will continue to monitor this case and other state and federal legislation relating to the Second Amendment. If you have any questions about this case, the Second Amendment, or large-capacity magazines, please contact John F. Renzulli or Christopher Renzulli.