(CN) – The Ninth Circuit Monday took up a challenge by California Attorney General Xavier Becerra, who has been prevented from fully exercising the state’s ban on high-capacity gun magazines as cases challenging the law make their way through court.
Circuit Judges Norman Smith and John Wallace were joined by Judge Deborah Batts of the Southern District of New York in deciding whether Judge Roger Benitez of the Southern District of California abused his discretion in granting a preliminary injunction in favor of Virginia Duncan and the California Rifle & Pistol Association, preventing the state from enforcing a ban on gun magazines with more than 10 rounds of ammunition.
Judges Smith and Wallace immediately questioned Deputy Attorney General John Echeverria about why the state would still pursue an appeal on the preliminary injunction order when last Thursday Benitez heard arguments on the plaintiffs’ motion for summary judgment and a trial in the matter is expected this fall.
“Why is the state so anxious when the trial is coming in September and summary judgment could come in two months?” Smith asked.
Echeverria said Benitez did not apply the proper scrutiny test when granting the preliminary injunction motion.
“The district court ignored large swaths of evidence submitted by the attorney general’s office … subjecting California’s statute, the people’s statute, to something more akin to strict scrutiny,” Echeverria said.
“There is an illogic that is fundamentally tainting this court’s order by ignoring the attorney general’s evidence. No deference to the people of California in enacting Proposition 63 was given,” Echeverria added.
Echeverria said the statute did not constitute a taking of personal property because the state was exercising its police powers. He noted owners of high-capacity magazines were not “required to deliver them to the government” because they could modify the devices to comply with California’s statute.
But Erin Murphy, representing Duncan and the California Rifle & Pistol Association, disagreed, saying in multiple cases the Supreme Court has held that offering an alternative is not enough to eliminate the taking of the personal property.
“There is no police power exception to the Takings Clause … property rights aren’t that manipulatable,” Murphy said.
She said Benitez did not abuse his discretion and made the right call in granting her clients’ motion for preliminary injunction because Proposition 63 “requires dispossession, permanent modification, destruction of property – things that cannot be undone” if gun owners were required to comply with the statue while the case makes its way through court.
“There is a concrete irreparable harm here given we are dealing with a dispossession statute,” Murphy said.
Magazines holding more than 10 rounds have been banned in California since 2000, but a previously intact grandfather clause allowed lawful owners who purchased high-capacity magazines before the law to keep them. Proposition 63, passed by 63 percent of voters in 2016, eliminated the grandfather clause, requiring owners to destroy or modify the magazines, surrender them to police or sell them to a licensed dealer.