The 9th Circuit’s reactionary Second Amendment

In Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833), the U.S. Supreme Court decided that the protections of the Bill of Rights were unenforceable against state and local governments. Barron was implicitly nullified after a bloody civil war, and explicitly overruled by the text of the 14th Amendment in 1868.

We still lament that the rhetoric of the Declaration of Independence failed to match the policies of a new nation. In parallel fashion, the Supreme Court's shabby treatment of the 14th Amendment undermined its stated purpose. The court's late-19th century rulings stalled the application of the Bill of Rights (and equal protection) against state government infringements for generations based on a string of reactionary cases. See generally The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1872), United States v. Cruikshank, 92 U.S. 542 (1875), Presser v. Illinois, 116 U.S. 252 (1886), The Civil Rights Cases, 109 U.S. 3 (1883), and Plessy v. Ferguson, 163 U.S. 537 (1896).

It would take the Supreme Court 57 years to apply the first fundamental right (speech/press) listed in the Bill of Rights to state actors through the narrow gate of the due process clause of the 14th Amendment. Gitlow v. New York, 268 U.S. 652 (1925). With almost a century of First Amendment jurisprudence under its belt, the Supreme Court has developed a rich body of law protecting the rights in that amendment. Our liberties of conscience have been translated into enforceable limitations on government action, while repression of these rights remains de rigueur for too much of the rest of our world.

With slightly more than half-a-century's evolution of criminal procedure case law, the Supreme Court has interposed the protections of the Fourth, Fifth, Sixth and Eighth Amendments, between people accused of crime in America and the awesome resources of state and federal prosecutors. Everywhere in this country a defendant can expect a baseline promise of fair treatment and a level playing field anywhere that state (and federal) governments seek to deprive them of life or liberty. During this same liberalization period, protections for unenumerated personal liberties and private property rights empowered individuals to resist Leviathan, regardless of its federal, state, or local pedigree.

Justice Hugo Black had argued, albeit in dissent, that the Bill of Rights was made applicable to the states en masse by the 14th Amendment in 1868. Adamson v. California, 332 U.S. 46 (1947). His remedy -- if not his rationale -- appears headed toward vindication. The ad hoc accumulation of nearly all provisions of the Bill of Rights, in every jurisdiction in America, is now almost complete. Furthermore, the arc of history shows that the nationalization of the Bill of Rights, through litigation in our federal courts, has overwhelmingly resulted in an expansion of the substantive rights at issue in those cases and controversies resolved by the judicial branch.

Which is why the 9th U.S. Circuit Court of Appeals' Second Amendment jurisprudence is such an outlier. In Duncan v. Bonta, 2021 DJDAR 12228, the 9th Circuit has once again adopted a reactionary approach to the right to "keep and bear arms." On November 30, it issued an illiberal opinion that once again empowers the state of California, to the detriment of its residents, in that state's relentless pursuit to diminish a fundamental right.

At issue is California's ban on magazines that hold more than 10 rounds of ammunition. Since most firearms that use detachable magazines were designed to hold more than 10 rounds, and since this ban is being implemented after millions of such devices have already been lawfully possessed by gun owners for decades, this ruling by the 9th Circuit will require the forfeiture of personal property without compensation. Which means the constitutional controversies raised in Duncan touches the Fifth Amendment "takings" clause, as well as substantive Second Amendment rights.

All of this is against a backdrop of a state regime that already requires background checks for all gun transactions whether by commercial sale, gift, bequest or private party transfer. Retails sales of ammunition require background checks. Set to take effect soon, ammunition components and firearm parts/accessories will also require background checks. Furthermore, the California Department of Justice has an active and aggressive program that data mines government records for the purpose of confiscating weapons and prosecuting people with a record of firearm ownership whose firearms rights may have been suspended, sometimes by decades-old events that may or may not have been disqualifying when that event occurred.

Skeptics might question whether California's gun laws can achieve a virtuous gun-owning population, but even if we accept that premise, more questions abound:

(1) If it is already illegal to possess any firearm which utilizes a magazine that holds up to 10 rounds, of what utility is a law that criminalizes possession of a gun with a magazine that holds 11?

(2) If background checks have purged the rolls of gun owners in California deemed unworthy to exercise the "right to keep and bear arms," of what utility is a law limiting the virtuous to only 10 rounds, when that the 10-round limitation does not apply to law enforcement officers when they are engaged in defending lives?

These, and other questions, raise more than just policy preferences. Constitutional adjudication of a fundamental right requires a standard of review by the judiciary that enshrines and protects the right as it was understood when ratified. Which means the federal government is held to a publicly understood metric from 1791, and the states are held to a standard established in 1868. A deeper constitutional criticism of the 9th Circuit's Duncan opinion is beyond the scope of this piece. But the more interesting observation might be an examination of the corner that this circuit court has painted itself into.

While at least one judge concurring in the majority opinion takes exception to the tone of at least one dissent, neither Judge Andrew Hurwitz (nor the majority) contests Judge Lawrence VanDyke's tabulation of the Second Amendment's 0 wins and 50 losses record in the 9th Circuit. Such a scorecard, standing alone, lends little to the abstract academic debate over this circuit's Second Amendment jurisprudence. However, it does foreshadow a situation where an awful lot of this circuit's case law is vulnerable to any Supreme Court opinion that undercuts the 9th Circuit's methodology for adjudicating Second Amendment issues.

Most of those 50 "wins" are predicated on a judicial interest-balancing approach, advocated by Justice Stephen Breyer, but rejected by the majority in District of Columbia v. Heller, 554 U.S. 570 (2008). By any other name, the 9th Circuit's "intermediate scrutiny" looks too much like rational basis review. Furthermore, this methodology (also catching on in other circuits) has been called out as deficient by at least four of the current justices of the Supreme Court (five if you include the deceased author of Heller, Justice Antonin Scalia) in various dissents from certiorari over the past decade. Three of those rebukes arose from this circuit. Jackson v. City & Cnty. of San Francisco, 576 U.S. 1013 (2015); Peruta v. California, 137 S. Ct. 1995 (2017), and Silvester v. Becerra, 138 S. Ct. 945 (2018).

Conservatives now hold a 6-3 majority on the Supreme Court as they get ready to decide New York Rifle & Pistol Assoc., v. Bruen, 20-843, which was argued on November 3. If the high court issues, not only a favorable decision on the right to bear arms in public at issue in that case, but also decides that a decade of mischief in the circuit courts compels it to issue a methodology correction, then how many of those 50 wins in the 9th Circuit will remain good law? How many gun rights advocates do you think are itching for a rematch?

Because this circuit has staked out what might become erroneous positions on so many Second Amendment issues ranging from public carry, to waiting periods, to mental health disqualifications, to gun store zoning laws, to gun storage laws, to magazine capacity -- has the 9th Circuit painted itself into a corner and committed itself to reexamine all these issues if and when the Supreme Court issues such a correction?

It would take 85 years from the Gitlow decision before the Supreme Court got around to enforcing the Second Amendment against state infringements. In McDonald v. City of Chicago, 561 U.S. 742 (2010), four justices traveled the well-worn path of the due process clause, with Justice Clarence Thomas adding a fifth opinion (concurring in the result) and urging a reconsideration of the reactionary cases of the late-19th century.

Has the 9th Circuit become to the Second Amendment, what the post-Reconstruction Supreme Court was to the 14th Amendment? A place where disfavored rights receive triage, palliative care, or worse, in the hope that they die a quiet death? Has it become a place where conservative, reactionary opinions have stalled the development of a fundamental right? The more interesting question may be whether this circuit has already provided (forgive the mixed metaphor) a road map and the ingredients for a big plate of crow, if and when the U.S. Supreme Court reinvigorates the Second Amendment with an instruction manual that even the 9th Circuit can't ignore. 