State high-capacity magazine law doesn’t violate 2nd amendment, panel says

California's voter-approved ban on large capacity gun magazines does not violate the Second Amendment or the takings clause, a 9th U.S. Circuit Court of Appeals en banc panel ruled Tuesday.

The outcome was not a surprise, and the panel's outnumbered conservatives filed dissents aimed at the U.S. Supreme Court.

Judge Susan P. Graber, an appointee of President Bill Clinton, concluded the state law does not impose a "substantial burden" on gun owners' rights and should be assessed under intermediate scrutiny, not the tougher standard of strict scrutiny. Duncan et al. v. Bonta, 2021 DJDAR 12228 (9th Cir. Nov. 30, 2021).

The 7-4 opinion in California's favor featured arguments over whether the proper standard for assessing the state law as well as whether it violates a major U.S. Supreme Court gun rights ruling. District of Columbia v. Heller, 554 U.S. 570 (2008).

Heller struck down the District of Columbia's ban on handguns and guaranteed an individual's right to possess a weapon in the home.

Chuck Michel, president and general counsel of the California Rifle & Pistol Association Inc., said in a prepared statement the group would -- as expected -- appeal the ruling to the Supreme Court.

Last month, the Supreme Court considered a challenge to a New York state's handgun-licensing law. New York State Pistol & Rifle Association v. Bruen, 20-843 (S. Ct., filed Dec. 17, 2020).

While the conservative majority on the Supreme Court appeared skeptical of New York's law, it is not clear whether they will issue a narrow ruling requiring a rewrite of the statute or a broader decision.

The en banc panel, chosen at random, was dominated by appointees of Democratic presidents. All seven Democratic appointees voted that the state law is constitutional. All four appointees of Republican presidents argued it was not.

"Nothing in the record suggests that the restriction imposes any more than a minimal burden on the Second Amendment right to keep and bear arms," Graber wrote for the majority.

"In sum, we decline to read Heller's rejection of an outright ban on the most popular self-defense weapon as meaning that governments may not impose a much narrower ban on an accessory that is a feature of some weapons and that has little to no usefulness in self-defense."

Graber also rejected the plaintiffs' argument the law was a physical taking.

"Here, an owner of a large-capacity magazine may continue to use the magazine, either by modifying it to accept a smaller number of bullets or by moving it out of state, or the owner may sell it," she wrote.

The en banc panel overruled a three-judge panel that ruled the 2016 state law was unconstitutional.

9th Circuit Judge Patrick J. Bumatay, an appointee of President Donald Trump, attacked the court's "tiers of scrutiny" approach to evaluating whether state gun laws violate the Second Amendment.

"In reality, this tiers-of-scrutiny approach functions as nothing more than a black box used by judges to uphold favored laws and strike down disfavored ones. But that is not our role," he wrote.

"While we acknowledge that California asserts a public safety interest, we cannot bend the law to acquiesce to a policy that contravenes the clear decision made by the American people when they ratified the Second Amendment," Bumatay added.

Instead, Bumatay relies on what he describes as the "text, tradition and history" of the Second Amendment.

Since 2000, California law has prohibited the manufacture, importation and sale of an "ammunition feeding device" with the capacity to accept more than 10 rounds.

Bumatay argued the statute does not follow the law of most other states, which allow large capacity magazines, and of American history, in which weapons that can shoot more than 10 rounds were available even before the Revolutionary War and long afterward.

"From this history, the clear picture emerges that firearms with large-capacity capabilities were widely possessed by law-abiding citizens by the time of the Second Amendment's incorporation," wrote Bumatay, adding they "are entitled to the Second Amendment's protection."

9th Circuit Judge Marsha Berzon, a Clinton appointee, wrote a lengthy dissent defending the panel's process and arguing that Bumatay's argument for evaluating gun cases on the basis of the objective text, tradition and history of gun laws "is ultimately an exercise in wishful thinking."

Gov. Gavin Newsom and Attorney General Rob Bonta hailed the 9th Circuit ruling.

"Gun violence is an epidemic in this country, but laws like our ban on large-capacity magazines are commonsense ways to prevent this violence, including devastating mass shootings," Bonta wrote in a statement.

While the opinion was predictable given the partisan breakdown of the court, the ruling revealed strong emotions among 9th Circuit judges -- especially in a personal exchange between Judge Lawrence VanDyke, a Trump appointee, and U.S. District Judge Andrew D. Hurwitz, an appointee of President Barack Obama.

VanDyke, who has become known for his lacerating dissents, blasted his colleagues, saying the majority "distrusts gun owners and thinks the Second Amendment is a vestigial organ of their living constitution."

Hurwitz objected. "That language is no more appropriate (and no more founded in fact) than would be a statement by the majority that today's dissenters are willing to rewrite the Constitution because of their personal infatuation with firearms," he wrote.

"I recognize that colorful language captures the attention of pundits and partisans, and there is nothing wrong with using hyperbole to make a point," Hurwitz added. "But my colleague has no basis for attacking the personal motives of his sisters and brothers on this Court."

VanDyke wrote that "it is not altogether surprising that federal judges, who have armed security protecting their workplace, home security systems supplied at taxpayer expense, and the ability to call an armed marshal to their upper-middle class home whenever they feel the whiff of a threat, would have trouble relating to why the average person might want a magazine with over ten rounds to defend herself."

"But this simply reinforces why those same judges shouldn't be expected to fairly balance any Second Amendment test asking whether ordinary law-abiding citizens really need some firearm product or usage," VanDyke added.

Hurwitz countered by citing the shooting death of Chief U.S. District Judge John M. Roll of Arizona, "one of [the 9th Circuit's] own," who was assassinated in 2011 during the same shooting that seriously wounded U.S. Rep. Gabby Giffords, D-AZ.

"The people of California should not be precluded from attempting to prevent mass murders simply because they don't occur regularly enough in the eyes of an unelected Article III judge," Hurwitz wrote.

Arthur Hellman, a professor emeritus at University of Pittsburgh School of Law, said in an interview that VanDyke's critique is "less a personal attack than an ideological one."

"The stakes are higher" in the latest round of Second Amendment cases, especially because of the looming litigation before the Supreme Court, Hellman said. "It encourages sharp attacks and strong rhetoric."