9th Circuit gun magazine debate appears aimed at Supreme Court

Attorneys for gun rights advocates and the state of California debated the constitutionality of a voter-approved ban on large capacity gun magazines before a full panel of the 9th U.S. Circuit Court of Appeals on Tuesday but appeared to be aiming at a different audience.

The en banc 9th Circuit panel, which was dominated by judges appointed by Democratic presidents, seemed inclined to overturn a three-judge panel that ruled the 2016 law violated the Second Amendment. The focus of the attorneys seemed as much on the U.S. Supreme Court as on the 9th Circuit judges. Duncan et al. v. Bonta, 19-55376 (9th Cir., filed April 4, 2019).

Erin E. Murphy, a partner at Kirkland & Ellis LLP who represented the gun owners, repeatedly invoked Justice Brett M. Kavanaugh's dissenting opinion in a 2011 case when he was a judge on the D.C. Circuit Court of Appeals. Kavanaugh was subsequently appointed to the U.S. Supreme Court by President Donald Trump and is regarded as one of the court's swing votes.

The 2011 case in which Kavanaugh dissented followed the U.S. Supreme Court's decision in District of Columbia v. Heller, 554 U.S. 570 (2008), which struck down the district's ban on handguns and guaranteed an individual's right to possess a weapon in the home.

In the 2011 case, known as Heller II, Washington, D.C passed a new law banning semi-automatic rifles and requiring gun registration. The statute was approved by the appellate court. But Kavanaugh dissented, arguing that the Supreme Court case established, "Courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny."

Under that logic, Kavanaugh concluded weapons were permitted if they were commonly used by law-abiding citizens.

Murphy picked up on that thread in her argument, telling the 9th Circuit judges that there is a long history in America of selling guns with magazines that can shoot more than 10 rounds.

"There is no historical tradition in this country of having capacity restraints," Murphy said.

Murphy acknowledged that the Supreme Court's Heller decision "doesn't squarely address the question of scrutiny" but sided with Kavanaugh's view that the proper test is text, history and tradition.

Deputy Solicitor General Samuel P. Siegel focused his argument on public safety, and said California's law was a reasonable response to a threat posed by large capacity magazines, especially to law enforcement officers.

"It is not one of those policy choices the Second Amendment takes off the table," Siegel told the panel.

Moreover, he said, "Plaintiffs haven't pointed at a single person in California who has fired more than 10 rounds in self-defense."

California is one of nine states that restricts large capacity magazines, and "every single law has withstood a Second Amendment challenge," Siegel said.

Murphy, by contrast, tried to portray California's law as an outlier by repeatedly saying that 41 states have no restrictions.

9th Circuit Judge Paul J. Watford, an appointee of President Barack Obama, asked about the plaintiffs' claim the law is effectively a regulatory taking because it forces people with large capacity magazines to either modify or sell them.

Siegel said the modifications are easily done for $7 with the help of a do-it-yourself website.

Murphy compared the modification to "tearing down a house you built" by having to permanently alter it.

Watford was unimpressed with that comparison. "I don't see a parallel," he said.

9th Circuit Judge Lawrence VanDyke, an appointee of President Donald Trump, said mass shootings are "not a very common occurrence."

Siegel focused on examples, including Sandy Hook in Connecticut and the shooting of then-U. S. Rep. Gabby Giffords in Arizona, when the shooter had to stop to reload, allowing some potential victims to escape or leading to the killer's capture. During the 2011 Giffords shooting, U.S. District Judge John Roll was killed.

9th Circuit Judge Andrew D. Hurwitz raised that shooting when questioning Murphy, asking about "demonstrated incidents" of killers being disarmed while reloading.

"Isn't that precisely what occurred in Tucson?" he asked.

Murphy demurred, saying California needs more conclusive evidence for its "draconian" measures.

The law was originally struck down by U.S. District Judge Roger T. Benitez in San Diego, who also wrote an opinion earlier in the month wiping out California's 32-year-old ban on semi-automatic guns.

A 9th Circuit panel stayed that decision late Monday. Miller et al. v. Bonta et al., 21-55608 (9th Cir., filed June 10, 2021).