Sunnyvale confiscatory magazine limit appeal has its day in court

Magazines over 10 rounds in capacity, with no exception for grandfathering, are banned from Sunnyvale, California. (Photo: Chris Eger)

This week the continuing challenge to the controversial Sunnyvale, California, law that banned virtually all magazines capable of holding more than 10 rounds, is being heard by a federal appeals court.

Monday’s hearing, in front of a three-judge panel of the U.S. Ninth Circuit Court of Appeals, is the latest round in the ongoing fight against the city’s ordinance, known as Measure C, which was approved in 2013.

Passed on a ballot by 66 percent of local voters, it requires residents to inform police within 48 hours of a gun theft taking place, regulates storage of guns, records all ammunition sales for two years, and prohibits all detachable magazines — even those grandfathered or used by retired police officers — that hold more than 10 rounds.

Following the passage of the law, two lawsuits were filed, one backed by the National Shooting Sports Foundation, the other by the National Rifle Association, to combat Measure C in federal court, both arguing that the new ordinance violated the Second Amendment.

A local gun store, U.S. Firearms, supported by the NSSF, sued the city over the storage, theft reporting and ammunition sales record-keeping requirements.

This was followed by six local gun owners, who, backed by the NRA, filed a separate suit over the magazine cap.

It was this suit, Fyock vs. City of Sunnyvale, which U.S. District Judge Ronald Whyte shot down in March, stating that, “The right to possess magazines having a capacity to accept more than 10 rounds lies on the periphery of the Second Amendment right.”

After both the Ninth Circuit and the Supreme Court declined an emergency injunction, the Fyock legal team has used the past eight months to prepare their case while Sunnyvale enforced their confiscatory ban.

“We are asking the court to protect citizens who chose standard capacity magazines to defend their families from government confiscation sponsored by the Bloomberg gun-ban machine,” Chuck Michel, Senior Partner of Michel and Associates, the firm on point for Fyock told Guns.com Tuesday.

“The Fyock case also provides a venue for this court to recognize the Supreme Court’s admonition in Heller that firearms commonly chosen by law abiding citizens for self-defense are protected by the Second Amendment,” Michel said.

Hearing the case this week in San Francisco are Ninth Circuit Judges Johnnie B. Smith and Michael Daly Hawkins as well as visiting Judge Barbara Lynn from the Northern District of Texas. All three are appointments to the bench made by President Bill Clinton.

Presenting arguments for Fyock is Erin Murphy, the talented rising star who served notably as Paul Clement’s second-chair lawyer in a number of Affordable Care Act cases in 2012, then successfully argued a finance regulation case in the Supreme Court for the Republican Party the following year. Murphy was added to the case in September along with Clement.

“Once something’s within the scope of the Constitution, you can’t flatly prohibit it and that’s what this law does,” Murphy told the panel Monday.

Sunnyvale’s designated hitter in the case is Roderick Thompson, a civil trial lawyer who argued and won in front of the lower court this spring.

“This simply is a modest incremental regulation that the citizens of Sunnyvale approved to protect themselves,” Thompson said.

Should the panel concur with the lower court and uphold Sunnyvale’s ban, Michel vows that Fyock is geared for the nine justices in Washington.

“If the Ninth Circuit declines to respect these Second Amendment protections, this case provides a good vehicle for the Supreme Court to clarify that it meant what it said in Heller, and that the Second Amendment is not a second class constitutional right,” Michel said.