Becerra asks full 9th Circuit to rehear gun ammunition case

Attorney General Xavier Becerra asked for a full panel of the 9th U.S. Circuit Court of Appeals to review of its ruling that California's ban on the acquisition and possession of large-capacity gun magazines is unconstitutional, arguing in a motion Friday the decision conflicts with existing case law.

Plaintiffs backed by the California Rifle & Pistol Association sued in 2017 challenging Proposition 63, the 2016 law that made it illegal in California to possess magazines that can hold more than 10 rounds of ammunition.

The law was invalidated by an injunction issued by U.S. District Judge Roger T. Benitez of the Southern District of California who held it violated the Second Amendment.

A divided three-judge 9th Circuit panel on Aug. 14 upheld that ruling. The law imposed a burden on the core right to defend oneself by barring the possession of magazines that are commonly used in handguns, the panel ruled. Duncan v. Becerra, 2020 DJDAR 8764 (9th Cir. Aug. 14, 2020).

That decision conflicts with at least five other federal circuit rulings that rejected similar challenges to the law, Deputy Solicitor General Samuel P. Siegel argued in a filing Friday. He frequently pointed to a 2015 9th Circuit ruling that affirmed a denial of a preliminary injunction in a similar case. That court reasoned a ban on large-capacity magazines did not burden Second Amendment rights because it didn't "affect the ability of law-abiding citizens to possess the 'quintessential self-defense weapon' -- the handgun," Fyock v. Sunnyvale, 779 F.3d 991 (9th Cir. 2015).

Judge Barbara M. G. Lynn from the U.S. Northern District of Texas, sitting by designation in the appeal, made similar arguments in her dissent. The ruling conflicted with "every other Circuit to address the Second Amendment issue presented here," she wrote.

Plaintiffs' attorney C.D. Michel of Michel & Associates, P.C. said Friday the request for an en banc review was expected. The case presents an opportunity for the U.S. Supreme Court to "set things straight on the broader issue of what the standard of review test should be when considering any Second Amendment challenge," he said.

"The Supreme Court seems inclined to do away with the complicated subjective tests that many courts have wrongly applied in Second Amendment cases, in favor of a clearer, more objective 'originalist' approach that considers the text, history and tradition of a law to determine what infringements might be tolerated," Michel said.

Becerra said banning the law will erode public safety.

-- Tyler Pialet