SAN FRANCISCO (CN) - The 9th Circuit refused Wednesday to throw out a ban of large-capacity gun magazines in Sunnyvale, Calif.
Writing for a three-judge panel, Judge Michael Daly Hawkins saw no reason to question the lower court's holing that a law "restricting possession of certain types of magazines burdens conduct falling within the scope of the Second Amendment."
The ban embodied in voter-approved Measure C gave Sunnyvale gun owners until March 6 this year to turn over to police all gun magazines holding more than 10 rounds.
"We think the court got it right," Tony Schoenberg of Farella Braun + Martel, attorney for the City of Sunnyvale, said in an interview. "It applied the right level of scrutiny and recognized the interests served by this law."
Passed by voters in 2013 by a 66 percent majority, the law is virtually identical to one San Francisco enacted that same year. Sunnyvale gun owner Leonard Fyock and five others sued the city in December 2013, claiming the confiscatory ban violates the Second Amendment, as it includes no exemption for law-abiding citizens seeking to defend themselves with massive firepower.
U.S. District Judge Ronald Whyte's had initially refused to block the ban from taking effect this past December.
The 9th Circuit's ruling contrasts the Sunnyvale ban against the complete handgun ban that the U.S. Supreme Court struck down in District of Columbia v. Heller.
In Heller, the high court held that D.C.'s ban on all handguns violated a person's right to possess firearms under the Second Amendment.
"Measure C is simply not as sweeping as the complete handgun ban at issue in Heller and does not warrant a finding that it cannot survive constitutional scrutiny of any level," Hawkins wrote. "Indeed, Measure C does not affect the ability of law-abiding citizens to possess the 'quintessential self-defense weapon' - the handgun.
Emphasizing that Heller led to substantial changes in Second Amendment jurisprudence, Hawkins noted "the right to keep and bear arms is limited, and regulation of the right in keeping with the text and history of the Second Amendment is permissible."
The high court noted in Heller that the Second Amendment does not grant the right to keep and carry any sort of weapon for any purpose, Hawkins added.
"The Supreme Court has emphasized that nothing in its recent opinions is intended to cast doubt on the constitutionality of longstanding prohibitions traditionally understood to be outside the scope of the Second Amendment," the 9th Circuit opinion states.
Pointing to that part of the opinion, Schoenberg said, "Justice Scalia was quite clear in Heller that the Second Amendment does not prohibit any restrictions related to firearms and that the restrictions are consistent with Heller."
Schoenberg said there are a number of district court cases that have come out in favor of such bans. "According to the courts that have addressed this, large capacity magazine bans are authorized under the Heller framework," he said.
Even if the ban restricted conduct protected by the Second Amendment, Hawkins said the court did not have decide whether firing-capacity regulations fall outside its scope since Whyte did not abuse his discretion in finding that Fyock's case would have likely failed on its merits.
Judge Johnnie Rawlinson and U.S. District Judge Barbara Lynn, sitting by designation from Dallas, concurred in the opinion.
Fyock's attorney, Chuck Michel with Michel &Associates, said his office is preparing both an appeal of today's decision and "a separate lawsuit on pre-emption grounds."
"This decision, like other recent Second Amendment decisions from the 9th Circuit, is based on a fundamental misapplication of the Supreme Court's ruling in the Heller case, and it is time for the Supreme Court to emphatically let lower courts know that it meant what it said," Michel said in an email.Follow @MariaDinzeo
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