This morning, August 14th, 2020, the 9th Circuit Court of Appeals has struck down California’s law against magazines that can hold more than 10 rounds of ammunition. Those who have been following this case for some time may recall that back in March 2019 the Honorable Judge Benitez temporarily struck down California Penal Code section 32310. This is the section of California law that relates to magazine capacity limits. Specifically, it makes it illegal to have any “large-capacity magazine”.  Punishments ranged from a $100 fine per magazine up to a year in county jail. That ruling resulted in “Freedom Week”, also known as the California Airlift or the Great California Magazine Rush, before the ruling was stayed pending a hearing by the 9th Circuit.

[BREAKING] 9th Circuit: California Magazine Ban Unconstitutional – Again

Well, the 9th Circuit has ruled. Led this time by the Honorable Judge Lee of the 9th Circuit Court of Appeals, Section 32310 has been struck down in a 2-1 vote. Unfortunately for Californians, this isn’t over. We do not have Freedom Week Part 2. Judge Benitez’s 2019 order against the purchasing of new standard-capacity magazines is still in effect until the 9th Circuit or Judge Benitez says otherwise.

What Happened?

As I mentioned, in March of last year the Hon. Judge Benitez struck down California’s ban on standard-capacity magazines resulting in Freedom Week. That ruling was stayed (legalese for “made not legally binding”) at the end of that week after California, represented by Xavier Becerra in his official capacity as the Attorney General of California, appealed Benitez’s ruling.

The lawsuit of course didn’t end there, it just slowly moved on through the court system. The wheels of justice grind slowly indeed. But we got here eventually, and that’s what matters. In an 81 page ruling, the 9th Circuit Court has held that Section 32310 does not survive a two-pronged test to determine it’s constitutionality.

Two-prong Test to Determine Constitutionality

I’m about to get into the weeds on the legal aspects of this case, so if you’re not interested in that you may want to skip to the section marked WHAT HAPPENS NEXT. The first prong asks, does this law burden conduct protected by the Second Amendment? California argued that § 32310 does not burden lawful Second Amendment conduct. While this would seem to be a simple argument, the 9th Circuit uses a four-question test to determine if the law burdens citizens. I know, I know, tests all the way down right? I promise it’s really fairly easy once it gets broken down. Here’s how the Court’s inquiry goes.

1. Is this law a burden on conduct protected by the Second Amendment?
   1. Does it regulate “arms” for the purpose of the Second Amendment?
   2. Does it regulate an arm that is both unusual and dangerous?
   3. Is this regulation long-standing and presumed lawful?
   4. Is there any persuasive historical evidence showing that this regulation affects rights that fall outside the scope of the Second Amendment?
2. What is the appropriate level of Constitutional scrutiny?
   1. How “close” does this challenged law come to the core rights of citizens?
   2. Does this law impose substantial burdens on this core right?

The First Prong

Alright so maybe not super easy. But at least coherent. So, let’s follow the Court’s reasoning in order. Are magazines “arms” for the purpose of the Second Amendment? Yes. As the court says, without a magazine, “many weapons would be useless, including “quintessential” self-defense weapons like the handgun.” Easy enough. Are “Large Capacity Magazines” (what we would call standard capacity) unusual and dangerous? No, as the Court says they are in common use and therefore cannot be unusual, ending this line of inquiry. Remember, an arm must be both unusual and dangerous for a ban to apply. Since LCMs are not unusual, they cannot be both unusual and dangerous.

On to the third question. Is this regulation long-standing and presumed lawful? Courts tend to give a lot of credence to the idea that if a law has survived for a long time, it should be presumed Constitutional. Whether or not you agree with this analysis, it is a facet of how courts decide cases. It is also at times frustratingly arbitrary. However, the court found that Section 32310 was not considered long-standing, having only appeared in the last 30 years.

And the fourth and final question in the first half of the test, is there any persuasive historical evidence showing that “large” capacity magazines fall outside Second Amendment protection? The court also held that no, there is no such evidence.

Prong the Second

Now the court had to determine what was the appropriate level of Constitutional scrutiny to apply. For those who don’t know, courts can (generally speaking) apply one of three levels of scrutiny to a statute to determine if it is constitutional or not. In increasing order of difficulty for the law to be constitutional, they are rational-basis, intermediate, and strict.

The first question, does this law strike at a core right? Heller held that the “core” Second Amendment right is for law-abiding citizens to “defend hearth and home”. The court held that a ban on LCMs struck at this core right to defend hearth and home. The second question, is it a substantial burden on that right? Since the law categorically bans “arms” that are in common use to defend hearth and home, it is a substantial burden. Therefore, the correct level of scrutiny according to the 9th Circuit is strict scrutiny.

Strict scrutiny requires the government to prove that the challenged law or policy has a compelling government interest and that the law or policy is narrowly tailored to achieve that interest. The 9th Circuit did find the government interest compelling, but as Section 32310’s “scope is so sweeping that half of all magazines in America are now unlawful to own in California” it did not survive the “narrowly tailored” test.

What happens next?

Sales are currently on hold, as the order issued by Judge Benitez in 2019 is still in effect. What happens next depends on AG Becerra, who has yet to issue a statement as of writing. He may request an en banc hearing from the 9th Circuit. This means they will ask that the 9th Circuit rehear the case with a panel of 11 judges, instead of the original panel of 3. The results of that hearing will determine whether or not Californians can continue to purchase standard capacity magazines.

In the meantime, either the 9th Circuit or Judge Benitez could lift the stay on the injunction. This would allow Californians to buy standard-capacity magazines again. Neither has done so yet.

The 9th Circuit Opinion