SAN FRANCISCO (CN) — Attorneys arguing over whether California can ban large-capacity magazines fielded questions from an en banc Ninth Circuit Tuesday, delivering a back-and-forth over what constitutes a weapon and when the government can ban it.
California Attorney General Rob Bonta hopes to have the appeals panel reverse U.S. District Court Judge Roger Benitez’s September ruling that stopped the state from enforcing its large-capacity magazine ban. That ruling currently is partially stayed, though the larger constitutional question remains — whether the government has the power to restrict certain arms.
No decision was made Tuesday in the case of Duncan v. Bonta.
Attorney Michael Mongan, representing Bonta’s office, told the panel that California law has no restrictions on the number of magazines someone can legally possess or the amount of ammunition they can have.
However, it does limit the capacity of a magazine to 10 rounds, Mongan added. In court documents, Bonta argues that since 2010 in America, large-capacity magazines have been used in 86% of mass shootings, meaning six or more deaths occurred. They’ve also been used in every mass shooting since 2020.
The danger a particular weapon poses and how many people use it plays a large role. The characteristics of a firearm, what makes it helpful in self-defense, must be examined, Mongan said, not just how common it is in society.
“I think that has to be considered,” he added.
Some 170,000 people in the country legally possess machine guns, which are heavily restricted in some states. Those restrictions would not vanish if a certain, larger number of people started buying them, Mongan added.
Attorney Erin Murphy, representing plaintiff Virginia Duncan, said the law protects someone’s right to have a firearm that’s in common use today. Machine guns, which came on the market around 1921, weren’t popular. States began banning them within a few years.
That’s a different situation than what the appeals panel must decide, Murphy argued.
“The state cannot ban arms in common use today,” Murphy said, adding that a weapon must be considered dangerous and unusual to be banned.
To impose a prohibition, the government must show that a weapon is somehow different from other firearms, making it dangerous. That difference doesn’t include a 10-round magazine, which is banned under the state law in contention, and an 11-round magazine, which would be prohibited.
Additionally, the magazine is not merely an accessory to a weapon, Murphy said.
“It’s a necessary component of a firearm,” she added.
According to Murphy, the state likely could ban having 100 rounds, as that’s not in common use.
Mongan rejected that argument, telling the panel Duncan believes that if enough people start to possess a certain firearm, then it becomes protected, with no consideration for its history or other characteristics.
“M16s, sawed-off shotguns, hand grenades — all presumptively protected,” he said.
This country has a history of banning weapons after they become prevalent and their danger is evident, Mongan said. He urged the panel to reverse the lower court’s decision and rule in favor of the attorney general.
“This is obviously a very important case for us,” Chief U.S. Circuit Judge Mary Murguia, a Barack Obama appointee, said.
The case has taken a circuitous route through the courts. California adopted restrictions on large-capacity magazines in 2000, which was followed in 2016 by a voter initiative that built on the restrictions.
Duncan filed suit and Judge Benitez preliminarily and then permanently enjoined the state from enforcing its large-capacity magazine law. A series of legal challenges sent the case to the U.S. Supreme Court, which before ruling on it issued a decision in New York State Rifle & Pistol Association v. Bruen.
Bruen imposes a standard for evaluating Second Amendment cases that includes examining history and constitutional text.
The Supreme Court then granted Duncan’s petition, vacated the Ninth’s Circuit ruling and sent the case back to the lower court.
In September, Benitez again permanently enjoined the large-capacity law. Bonta asked for an emergency stay, which was granted, setting the stage for Tuesday’s arguments.
Besides Murguia, Tuesday's panel included U.S. Circuit Judges Sidney Thomas, Susan Graber, Kim Wardlaw, Marsha Berzon and Richard Paez, all Bill Clinton appointees; Sandra Ikuta, a George W. Bush appointee; Andrew Hurwitz, an Obama appointee; and Ryan Nelson, Patrick Bumatay and Lawrence VanDyke, Donald Trump appointees.
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