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En banc Ninth Circuit upholds California ban on large-capacity gun magazines

Not surprisingly, the issue brought out withering concurrences and dissents from much of the 11-judge panel.

(CN) — California’s ban on large-capacity gun magazines which hold more than 10 rounds of ammunition “interferes only minimally” with the Second Amendment right to self-defense, an en banc Ninth Circuit panel found Tuesday in upholding the voter-approved Proposition 63.

While the law which amended California penal code to prohibit possession of large-capacity magazines frequently used in mass shootings has been hotly debated since voters overwhelmingly approved it in 2016, one thing is for certain: it aimed to save lives.

“The statute outlaws no weapon, but only limits the size of the magazine that may be used with firearms. Accordingly, the ban on legal possession of large-capacity magazines reasonably supports California’s effort to reduce the devastating damage wrought by mass shootings,” U.S. Circuit Judge Susan P. Graber, a Bill Clinton appointee, wrote in the 35-page order upholding the law.

Graber noted the case record showed “there is no evidence that anyone ever has been unable to defend his or her home and family due to the lack of a large-capacity magazine” — as U.S. District Judge Roger Benitez had previously suggested when he oversaw the case before it went to the Ninth Circuit.

The 7-4 en banc decision was split among party lines, with Democrat-appointed judges upholding the large-capacity magazine ban. The lengthy 170-page record — including multiple dissents and concurring opinions in support of the main ruling — served as a looking glass into the contested approach to Second Amendment cases among Ninth Circuit judges.

In his dissent, U.S. Circuit Judge Lawrence VanDyke suggested the appellate court was “possessed … by a single-minded focus on ensuring that any panel opinions actually enforcing the Second Amendment are quickly reversed.”

He added: “This case is the latest demonstration that our circuit’s current test is too elastic to impose any discipline on judges who fundamentally disagree with the need to keep and bear arms.”

Gun owner Virginia Duncan and the California Rifle & Pistol Association — two of the plaintiffs in the case — agree. They have already said they plan to ask the Supreme Court to take up their appeal.

“We are truly disappointed that the Ninth Circuit en banc panel decided to go against the solid constitutional reasoning of other judges to strike down this win for gun owners," CRPA president Chuck Michel said in a statement. "We will be appealing to the Supreme Court for a final determination because gun owners deserve to have someone fighting for them and their rights. The Second Amendment is a fundamental right, and it is time that courts stop treating that right like a second-class gift from government.”

Tuesday’s ruling follows oral arguments this past summer where the panel questioned whether California’s large-capacity magazine ban violates the “commonly owned” standard of legal gun ownership enshrined in the Supreme Court’s Heller decision or whether the attachments are pushed on consumers by gun manufacturers that sell them as standard devices.

The gun owners offered “little evidence” large-capacity magazines were commonly chosen by gun owners for self-defense purposes, Graber wrote, unlike the popular handguns subject to restrictions in Washington D.C. that Heller overturned.

Likewise, California’s ban does not constitute a “taking” as gun owners can modify their magazines to comply with state law by holding less than 10 rounds of ammunition, or they can sell the devices to gun dealers or move them out of state, Graber wrote.

As for whether the restriction poses a burden on Second Amendment rights by forcing a gun owner to “pause” to reload a spent magazine after shooting up to nine bullets, Graber noted homeowners using gun magazines for self defense used on average two to three rounds of ammunition, not more than 10.

“Large-capacity magazines provide significant benefit to soldiers and criminals who wish to kill many people rapidly. But the magazines provide at most a minimal benefit for civilian, lawful purposes,” Graber wrote.

California Attorney General Rob Bonta praised the decision in a statement, calling the state’s large-capacity magazine ban a “commonsense” way to prevent violence and mass shootings.

“I’m thankful to the court for giving this case a second look, and confirming what we know to be true: our laws keep Californians safe while allowing law-abiding gun owners to exercise their constitutional rights,” Bonta said.

In a footnote rejecting Judge VanDyke’s dissent where he compared the large-capacity magazine ban to an effective ban on cars or commercial flights through vehicle and airline regulations, Graber noted: “All the dissent’s analogies start from the false premise that a ban on large-capacity magazines somehow amounts to a ban on the basic functionality of all firearms.”

But that can’t be the case, Graber wrote, as “many firearms do not use magazines; all firearms may be used with magazines of 10 or fewer rounds; and no limit applies to the number of firearms or magazines that a person may possess and use.”

She added: “Just as our sister circuits have concluded in assessing the fit between restrictions on large-capacity magazines and the goal of reducing gun violence, we conclude that California’s ban is a reasonable fit, even if an imperfect one, for its compelling goal of reducing the number of deaths and injuries caused by mass shootings.”

In his own opinion concurring with the majority’s ruling upholding Proposition 63, U.S. Circuit Judge Andrew D. Hurwitz — a Barack Obama appointee — said VanDyke “has no basis for attacking the personal motives of his sisters and brothers on this court.”

Hurwitz noted some of the Ninth Circuit judges own firearms or had used them during military service.

He suggested as to the seriousness of preventing mass shootings in California “there should be no dispute,” pointing out “the Ninth Circuit lost one of its own” when Chief Judge John Roll of the District of Arizona was shot and killed in the shooting survived by former Rep. Gabrielle Giffords.

“I recount these matters of common knowledge not, as Judge VanDyke suggests, to import my personal experiences into the decision-making process in this case, but instead to emphasize that despite the alleged ‘infrequency’ of mass shootings, they have effects far beyond the moment that are the proper subject of legislative consideration.

“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.”

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Categories / Appeals, Civil Rights, Law, Regional

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