(CN) --- When considering the constitutionality of California’s ban on large-capacity magazines holding more than 10 rounds of ammunition, an en banc Ninth Circuit panel questioned just how common the firearm attachments are and if gun owners would choose them if not for a market which frequently sells them as a standard device.
“It’s my understanding guns are often sold with magazines with more than 10 rounds. It doesn’t mean people are choosing them – that’s what’s being sold to them,” U.S. Circuit Judge Marsha Berzon, a Bill Clinton appointee, noted during questioning of California Deputy District Attorney Sam Siegel.
Siegel spent Tuesday morning defending Proposition 63, California’s voter-approved ban on large-capacity magazines, which gun owner Virginia Duncan challenged in a lawsuit filed in the Southern District of California in 2017.
In 2020, a Ninth Circuit panel found Proposition 63 violated the Second Amendment. That decision codified a summary judgment ruling in favor of Duncan by U.S. District Judge Roger Benitez, who postured people could be “raped and dead” without the ability to shoot more than 10 rounds of ammunition for self-defense in the home. California requested an en banc rehearing.
During Tuesday's virtual rehearing held via Zoom, Siegel characterized Proposition 63 as “at most a minor burden to the individual right to self-defense." He also said it “is not one of the policy choices the Second Amendment takes off the table.”
California voters strengthened the state’s large-capacity magazine, or LCM, ban by doing away with a grandfather exception which allowed gun owners to keep LCMs purchased before the state banned the sale and purchase of the firearm attachments in 2000.
The state claims LCMs are used in all mass shootings and increase the lethality of mass shooting events. The devices are also frequently used in shootings targeting law enforcement officers.
But both Judge Benitez and the three-judge Ninth Circuit panel found LCMs are commonly owned and therefore do not fit the “dangerous and unusual” standard for constitutional gun reform policy outlined in the U.S. Supreme Court’s Heller decision.
But Berzon and her colleagues questioned whether the attachments are commonly owned due to market-driven tactics by gun manufacturers and sellers or if gun owners are choosing LCM attachments for lawful self-defense purposes.
“My friends have not pointed to a single person in California who has actually fired more than 10 rounds in self-defense. They haven’t identified a single person throughout the country who wasn’t able to defend himself because he had to use another gun or reload with a fresh magazine after firing more than 10 rounds,” Siegel said in response to Berzon’s questioning on how frequently LCMs are used.
U.S, Circuit Judge Lawrence VanDyke --- a Donald Trump appointee --- questioned Siegel at length, attempting to poke holes in the state’s argument regarding the “rarity” of gun owners needing to shoot more than 10 rounds of ammunition in self-defense.
“How many rounds of ammunition does the average person need to defend themselves?” VanDyke asked.
Siegel responded: “What the record here shows is on average people fire between two and three shots to defend themselves and the vast majority fire fewer than six shots to defend themselves.”
Before Siegel could finish answering his question, VanDyke cut him off to suggest it is not the statistical rarity of needing more than 10 rounds of ammunition the court should be focused on, but that “rarity” should not be a consideration regarding the limitations of the Second Amendment.
“I didn’t ask when they fire, I asked what’s the odds any individual person --- the average person --- will need to fire,” VanDyke said. “You rely very heavily in your briefing and today, in fact, that it’s very rare to need to use over 10 rounds, but isn’t it just as extraordinarily rare that any person ever needs to use a gun? How can you rely on the rarity of needing to use more than 10 rounds? If that were a legitimate consideration that would mean you wouldn’t have a Second Amendment right to have any rounds because the average person is never going to need any rounds.”
VanDyke suggested the state wants the court to “treat” rarity in two different ways which directly infringes the Second Amendment rights of gun owners, who the judge called “the right.”
“It seems you have a heads you win, tails you lose situation where rarity cuts against the right, but rarity cuts in favor of your state interests,” VanDyke said.
Listen to the Sidebar podcast segment on California’s LCM ban
Piggybacking on his skepticism regarding data showing less than three rounds are shot on average for self-defense purposes, VanDyke questioned Duncan’s attorney Erin Murphy about the “common use” of LCMs and whether the harm caused by LCMs used in mass shootings outweighed gun owners’ rights to possess them.
“Maybe when you step back from them … the incremental harm is not that great, but it is very high profile and people have very strong feelings about it,” VanDyke said of mass shootings.
Murphy said even though LCMs are the weapons commonly chosen by mass shooters, Heller makes clear “that’s not the kind of thing that can override the rights of law-abiding citizens to keep those arms that are protected by the Constitution.”
Murphy painted California as an outlier for banning LCMs, noting 41 states have not done so.
“I don’t see how the state could say there’s some overwhelming response that these are the kinds of things that need to be kept out of the hands of the people when most of the states in the country haven’t made that judgment,” Murphy said.
She said regulation of LCMs could not be compared to the ban on machine guns shortly after the weapon was introduced in 1925.
Two years after machine guns came on the market, 28 states had banned them and four years later they were banned by the federal government, Murphy said.
U.S. Circuit Judge Andrew Hurwitz --- a Barack Obama appointee --- asked Murphy if there were a number above which large-capacity magazines could be regulated.
Murphy noted the state would likely prevail on an LCM ban of 50 or more rounds as they are not commonly owned nor sold.
“The state chose to set the number well below what is common and standard issue in many of the most popular firearms in the country,” Murphy said.
She added: “It’s not for the government to decide just how much firepower people need to defend themselves.”
The panel was rounded out by Chief Judge Sidney Thomas, and Judges Susan Graber, Richard Paez, Sandra Ikuta, Mary Murguia, Paul Watford, Ryan Nelson and Patrick Bumatay.
Follow Bianca Bruno on Twitter
Read the Top 8
Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.