9th Circuit panel grills state on 10-round gun magazine ban

An attorney with the state Department of Justice faced tough questions as he sought recently to defend California's ban on high-capacity gun magazines before a 9th Circuit Court of Appeals panel.

The state has banned magazines of more than 10 rounds for about 20 years, but grandfathered in magazines people already owned before 2000. But state voters approved several new gun restrictions when they passed Proposition 63 in 2016, including banning the possession of magazines larger than 10 rounds even for people who already owned them.

Gun owner Virginia Duncan and the California Rifle and Pistol Association sued, claiming the new law violated the Second Amendment and the takings clause of the U.S. Constitution. Senior U.S. District Judge Roger T. Benitez in San Diego agreed on both counts. He issued a preliminary injunction on behalf of the plaintiffs in 2017, then granted them summary judgment last year in Duncan v. Becerra, 19-55376 (9th Cir., filed Apr. 4, 2019).

During an hour-long hearing held by video conference on Thursday, the sides debated whether the law deserved strict or intermediate scrutiny, and whether it was even necessary to reach a conclusion on the takings claim.

Deputy Attorney General John D. Echeverria began the proceedings by arguing California's law is limited in scope and fits within the state's powers.

"The evidence in this case shows that California's reasonable 10-round limit on magazine capacity is related and furthers the government's important public safety interest in mitigating the lethality of mass shootings and gun violence against law enforcement. At the same time, California's limit of 10 rounds per magazine accommodates the self-defense interests of law-abiding citizens."

But he didn't get much further than that, when Circuit Judge Consuelo M. Callahan began peppering him with questions.

"Any normal citizen with these weapons can no longer use them to defend themselves in the home," she said. "This seems to be quite a severe burden on the core Second Amendment right. Why shouldn't that trigger strict scrutiny?"

Echeverria replied that the goal of the law was to force mass shooters to pause to reload, adding, "These pauses save lives." He sought to differentiate the case from District of Columbia v. Heller, 554 U.S. 570, 596 (2008). That case concerned the "quintessential weapon for self-defense in the home, the handgun," he said.

He also claimed some restrictions on law-abiding gun owners were warranted and permissible, given than about three-quarters of guns used in mass shootings were obtained legally and that guns also fall into the wrong hands through theft.

"Large-capacity magazines are not for self-defense," he argued. "Large-capacity magazines were designed for military applications, to fire as many rounds as possible, to kill and disable as many people as possible on the battlefield."

Circuit Judge Kenneth K. Lee shot back that many mass shooters use multiple guns. He compared the ban to the government limiting people "to one gun." He also said he was worried the law could harm rural gun owners.

"Law enforcement may be very far away," Lee said. "For people who live in these areas, why isn't this law a burden on the ability to provide self-defense?"

Arguing for the Rifle and Pistol Association, Erin E. Murphy conceded there could be a number of rounds per magazine that a state could ban. But she sought to portray magazines slightly above 10 rounds as fairly standard among gun owners, adding "millions of law abiding citizens" have them.

"What the state has labeled 'large-capacity' magazines plainly satisfy the test Heller articulated," the partner with Kirkland & Ellis LLP in Washington, D.C. said. "Because these magazines are protected by the Constitution, the state can't flatly prohibit them."

Murphy went on to urge the court to not "start from scratch" but to accept the lower court's finding that the law is not "narrowly tailored." Even if the court dismissed her side's Second Amendment arguments, she said it could not avoid finding that there is an unlawful taking if the state is allowed to maintain its ban.

"The state's principle argument here is there is no taking at all because it's just asserted it's police power," Murphy said. "I just don't think that squares with the doctrine in this area at all."

On rebuttal, Echeverria claimed the standard of evidence the plaintiffs argued is too high.

"Under intermediate scrutiny, the state can rely on evidence of correlation in this case," he said. "It does not need to show causation. You can't do scientific experiments."

The panel took the matter under submission.