The federal appeals court in San Francisco yesterday upheld California’s ban on magazines that hold more than 10 rounds. The 7-to-4 decision overturned an earlier ruling by a three-judge panel of judges that the ban violated the Second Amendment.
“Under the Second Amendment, intermediate scrutiny applies, and [the ban] is a reasonable fit for the important government interest of reducing gun violence,” claimed Judge Susan Graber in Duncan v. Bonta. “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 stated: “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.”
Thus, the judge concluded, “the ban on legal possession of large-capacity magazines reasonably supports California’s effort to reduce the devastating damage wrought by mass shootings.” (Left unsaid in the judge’s opinion is that such large capacity magazines are typical, so the statistics she cites are not particularly meaningful).
The appeals court’s decision also rejected the argument that the ban on such magazines is an unconstitutional taking of property without compensation. It reasoned that the owners of the now-illegal magazines can “modify or sell their nonconforming magazines” and so “the law does not deprive owners of all economic use.”
Writing in dissent, Circuit Judge Patrick Bumatay argued that the majority’s ruling “means we simply give a blank check to lawmakers to infringe on the Second Amendment right. Indeed, post-Heller,” the federal appeals court in San Francisco has “never struck down a single firearms regulation.”
The “manufacture, importation, or sale” of high-capacity magazines has been illegal in California since 2000. Keeping magazines you already owned, however, had remained legal until voters approved Proposition 63 in 2016. It imposed criminal penalties of up to one year for possession of large-capacity magazines.
Enforcing this ban may be difficult. As Reason magazine noted, “Recent history shows that it is very hard indeed to get citizens who see themselves as peacefully possessing formerly legal items to cooperate when the state seeks to take those items from them. In other words, thanks to today’s 9th Circuit decision, expect more police harassment of fundamentally innocent gun owners and all of the collateral damage that such police actions invariably will cause. The end result will not be a safer California.”
The appeals court minimizes the burden on gun owners created by its decision: “The ban on large-capacity magazines has the sole practical effect of requiring shooters to pause for a few seconds after firing ten bullets, to reload or to replace the spent magazine. Nothing in the record suggests that the restriction imposes any more than a minimal burden on the Second Amendment right to keep and bear arms.”
In dissent, Judge Patrick Bumatay said that under its framers’ intent, the appeals court should have come to the opposite conclusion. As Bumatay observes, “Firearms and magazines capable of firing more than ten rounds have existed since before the Founding of the nation. They enjoyed widespread use throughout the nineteenth and twentieth centuries. They number in the millions in the country today. With no longstanding prohibitions against them, large-capacity magazines are thus entitled to the Second Amendment’s protection.”
The magazines the state banned “are lawfully owned by millions of people nationwide and come standard on the most popular firearms sold today,” Bumatay noted, and “the Constitution protects the right of law-abiding citizens to keep and bear arms typically possessed for lawful purposes.” ”
Circuit Judge Lawrence VanDyke in a sharper dissent said that his colleagues on the Ninth Circuit were driven “by a single-minded focus on ensuring that any panel opinions actually enforcing the Second Amendment are quickly reversed. 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.”
It is not solely left-leaning judges who think the ban is constitutional. UCLA law professor Eugene Volokh, who teaches constitutional law and firearms regulation, and is not a leftist, argues that high-capacity magazine bans do not impose a “substantial burden” on the Second Amendment right to self-defense, and thus are likely to pass constitutional muster. “Even if bans on magazines with more than 10 rounds are unwise,” Volokh wrote, “not all unwise restrictions are unconstitutional.”