Gun rights group wins one California case, but loses another

California continues to be an epicenter of firearms law litigation, with a state affiliate of the National Rifle Association winning a major case in the 9th U.S. Circuit Court of Appeal. The group also lost a recent challenge to a local gun ordinance in Santa Clara County Superior Court.

Both cases involve Proposition 63. This initiative, passed by California voters by a 26-point margin in 2016, required background checks for ammunition purposes and owners to report lost or stolen guns, and banned possession of magazines larger than 10 rounds.

On Friday, a plaintiff backed by the California Rifle & Pistol Association won a decision from a split panel in a case challenging the 10-round limit. Such magazines are not "unusual arms" outside the scope of the Second Amendment, Judge Kenneth K. Lee wrote for the majority. This affirmed a lower court ruling in Duncan v. Becerra, 2020 DJDAR 8764 (9th Cir., Aug. 14, 2020).

Despite "heart-wrenching and highly publicized mass shootings...Armed self-defense is a fundamental right rooted in tradition and the text of the Second Amendment," Lee wrote. Citing the high court's landmark gun decision, District of Columbia v. Heller, 554 U.S. 570 (2008), he wrote that large capacity magazines -- LCMs, in court papers -- must be considered "dangerous and unusual" in order to "fall outside the Second Amendment's protection."

"The record before us amply shows that LCMs are commonly owned and typically used for lawful purposes, i.e., not unusual," Lee wrote.

His ruling validated a 2017 decision out of the Southern District of California. Senior U.S. District Judge Roger T. Benitez also invalidated the 2000 law banning sales of larger magazines, but stayed that portion of his ruling.

Several cities and states also have magazine limits, many set at 10 rounds. Gun control groups urged the state to seek en banc review.

"This case may present the Supreme Court with an opportunity to set things straight on the underlying issue of what the standard of review test should be when considering any Second Amendment challenge," the Rifle Association's president and general counsel, Chuck Michel, said in a statement.

"We are carefully reviewing the decision, with the goal of protecting public safety," said a spokesperson for Attorney General Xavier Becerra. "The Attorney General remains committed to using every tool possible to defend California's gun safety laws and keep our communities safe."

In a dissent, Judge Barbara M. G. Lynn wrote the ruling diverges from prior opinions by the 9th and 6th circuits. A judge from the U.S. Northern District of Texas named to the panel, Lynn wrote the majority ignored substantial precedent.

"The majority opinion conflicts with this Circuit's precedent in Fyock v. Sunnyvale, 779 F.3d 991 (9th Cir. 2015), and with decisions in every other Circuit to address the Second Amendment issue presented here," she wrote in a lengthy dissent.

Lynn invoked a two-part test created by Heller. She conceded Prop. 63 likely passed the first part in that it "implicates conduct protected by the Second Amendment." But she disagreed with the level of scrutiny necessary under part two. The magazine restriction does not cause guns to be inoperable, limit that number of magazines a person may own or otherwise undermine the ability to use a gun to defend one's home, she wrote.

Fyock originated as a challenge to Measure C, passed by a 2-1 margin by Sunnyvale voters in 2013. Among other provisions, it prohibited possession of magazines larger than 10 rounds. The state had banned the sale of such magazines in 2000, but did not prohibit ownership of magazines already in people's possession.

Lynn was part of a unanimous three-judge panel in that case which found the limit did not interfere with the right to defend the home.

The same law firm that won Fyock scored another victory at the end of July. Attorneys with Farella Braun + Martel convinced a judge to dismiss a California Rifle & Pistol Association challenged a local ordinance in Kirk v. City of Morgan Hill, 19-CV-346360 (S.C. Super. Ct., filed April 15, 2019).

The city requires lost or stolen firearms be reported to the police department within two days, rather than the five days allowed under Prop. 63. Judge Peter H. Kirwan rejected arguments the city had entered an area "fully occupied by state law," citing numerous examples of local ordinances that went beyond state regulations.

"The judge said it's consistent with the statewide goals...that's a nice precedent," said Farella partner Roderick M. Thompson.