SAN DIEGO, Calif. (CN) — Portions of California’s ban on large-capacity magazines will remain in effect after a Tuesday decision by an en banc Ninth Circuit.
The appeals court in a 7-to-4 decision granted state Attorney General Rob Bonta’s emergency motion for partial stay pending appeal. Bonta appealed after U.S. District Court Judge Roger Benitez, a George W. Bush appointee, ruled Sept. 22 that the ban curtails Californians’ Second Amendment right to buy and own such items, deeming it unconstitutional.
Bonta sought to stay all parts of Benitez’s order, except those concerning large-capacity magazines acquired and possessed before the lower court’s injunction.
The majority on the appeals court found that Bonta is likely to succeed on the merits.
“Notably, 10 other federal district courts have considered a Second Amendment challenge to large-capacity magazine restrictions since Bruen was decided,” the majority wrote, referring to New York Rifle and Pistol Association v. Bruen, which tweaked how states assess who may carry a concealed weapon in public. “Yet only one of those courts — the Southern District of Illinois — granted a preliminary injunction, finding that the challenge was likely to succeed on the merits.”
The Seventh Circuit Court of Appeals later stayed that lower court’s injunction, which is the same action Bonta was seeking, the Ninth Circuit majority wrote.
The appeals court also determined the state would face irreparable harm if a stay wasn’t implemented, as it would see a wave of large-capacity magazines pass through its borders.
Additionally, staying portions of the lower court’s order while the appeal is pending will not substantially hurt other interested parties.
“This stay does not interfere with the public’s ability ‘to purchase and possess a wide range of firearms, as much ammunition as they want, and an unlimited number of magazines containing 10 rounds or fewer,’” the majority wrote.
Lastly, the appeals court wrote that the public interest leans toward a stay. Large-capacity magazines almost always are part of mass shootings. Public interest in having firearms and ammunition for self-defense isn’t affected by this stay.
“We emphasize that at this stage of the litigation, we decide only whether to stay, in part, the district court’s order while this appeal is pending,” the majority wrote.
U.S. Circuit Judge Patrick Bumatay, a Donald Trump appointee writing for the dissenting judges, railed against the decision in favor of Bonta.
“If the protection of the people’s fundamental rights wasn’t such a serious matter, our court’s attitude toward the Second Amendment would be laughably absurd,” Bumatay wrote. “For years, this court has shot down every Second Amendment challenge to a state regulation of firearms — effectively granting a blank check for governments to restrict firearms in any way they pleased.”
Bumatay referred to Bruen in his dissent, writing that the U.S. Supreme Court ruled that firearm regulations can only stand if the government proves they’re part of the historical tradition surrounding the right to keep and bear arms.
“There’s no serious engagement with the Second Amendment’s text,” Bumatay writes about the majority’s decision. “No grappling with historical analogues. No putting California to its burden of proving the constitutionality of its law. All we get is a summary order, even after the Supreme Court directly ordered us to apply Bruen to this very case. The Constitution and Californians deserve better.”
In a dissent almost six times longer than the decision, Bumatay said the majority has again treated the Second Amendment as inferior to the others. The appeals court on multiple occasions has allowed violations to Californians’ right to bear arms, and did it again on Tuesday when it failed to properly examine the case’s merits, he wrote.
“Enough should be enough,” Bumatay wrote.
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