A panel of three judges today ruled in the 9th U.S. Circuit Court of Appeals that California’s ban on high-capacity ammunition magazines violates the Second Amendment. The 2-1 vote by the federal court effectively ends the ban, but the California Department of Justice is likely to request a final review.

A summary provided by the Firearms Policy Coalition says:

First, the panel held that Cal. Penal Code § 32310 struck at the core right of law-abiding citizens to self-defend by banning LCM possession within the home. Second, the panel held that Section 32310’s near-categorical ban of LCMs substantially burdened core Second Amendment rights. Third, the panel held that decisions in other circuits were distinguishable. Fourth, the panel held that this circuit’s decision in Fyock v. City of Sunnyvale, 779 F.3d 991 (9th Cir. 2015), did not obligate the panel to apply intermediate scrutiny.

The panel held that Cal. Penal Code § 32310 did not survive strict scrutiny review. First, the panel held that the state interests advanced here were compelling: preventing and mitigating gun violence. Second, the panel held that Section 32310 was not narrowly tailored to achieve the compelling state interests it purported to serve because the state’s chosen method – a statewide blanket ban on possession everywhere and for nearly everyone – was not the least restrictive means of achieving the compelling interests.

The panel held that even if intermediate scrutiny were to apply, Cal. Penal Code § 32310 would still fail. The panel held that while the interests expressed by the state qualified as “important,” the means chosen to advance those interests were not substantially related to their service.

Chief District Judge Lynn dissented, and would reverse the district court’s grant of summary judgment. Judge Lynn wrote that the majority opinion conflicted with this Circuit’s precedent in Fyock, and with decisions in all the six sister Circuits that addressed the Second Amendment issue presented here. Judge Lynn would hold that intermediate scrutiny applies, and Cal. Penal Code § 32310 satisfies that standard.

The law, which was passed by in 2016 and went into effect July 1 2017, banned the sale and ownership of any firearm magazine capable of holding more than 10 rounds. According to the defunct bill, a high-capacity magazine was defined as “any ammunition feeding device with the capacity to accept more than ten rounds, but does not include any .22 caliber tube ammunition feeding device, any feeding device that has been permanently altered so that it cannot accommodate more than ten rounds, or any tubular magazine that is contained in a lever-action firearm.”

FPC filed a legal brief in support of the plaintiffs at the 9th Circuit. The brief argued that so-called “large-capacity” magazines are inherent components of functional firearms, that such magazines are in common use for lawful purposes, and are constitutionally protected. One page of the brief argues, “A weapon that is ‘unusual’ is the antithesis of a weapon that is ‘common.’ Thus, an arm ‘in common use’ cannot be ‘dangerous and unusual,’ and is therefore protected.” The 9th Circuit agreed, holding that,” The record shows that such magazines are overwhelmingly owned and used for lawful purposes. This is the antithesis of unusual. That LCMs are commonly used today for lawful purposes ends the inquiry.”

The FPC joined a coalition of gun owners and 2A advocacy groups as plaintiffs, which included the Second Amendment Foundation, California County Gun Owners, California Gun Rights Foundation, and prominent individual gun owners. The ban remains partially in effect until the district court issues a new order that lifts the stay of the judgment. When Judge Roger T. Benitez in April 2019 first ordered the ban was unconstitutional, his judgment was stayed pending a final resolution of the state’s appeal. FPC says that until a new order is issued, the state’s ban will remain in effect. Judge Benitez may issue a new order that allows sales of high-cap magazines to begin again, but the most likely scenario requires that final petitions brought by the state against this ruling be laid to rest. It is likely California Attorney General Xavier Becerra and his Department of Justice will petition the 9th Circuit for an En Banc review in an attempt to salvage the ban. The review will have all judges of the court, not just the selected panel, hear the case.

Despite an inevitable counterargument coming from the state, the decision reached in California today sets a critically important precedent. That is, one which may help protect Americans’ gun rights against a reinstatement of the assault weapon and high-cap magazine ban passed by Congress in 1994. Joe Biden and Kamala Harris have specifically called for an assault weapon and magazine ban on the campaign trail. The Democrat nominees for President and Vice President now both argue for these gun control initiatives as part of their pleas against Donald Trump’s reelection.

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