A three-judge panel of the U.S. 9th Circuit-- long the most liberal in the country-- found last week that California's ban on firearm magazines capable of holding more than 10 rounds violates the Second Amendment. 

The two-judge majority in the ruling handed down in the long-running Duncan v. Becerra case agreed with both the plaintiffs and a lower court that California's ban on the possession of "large-capacity magazines" was against the Constitutionally-protected right to keep and bear arms. 

"California’s law imposes a substantial burden on this right to self-defense," wrote U.S. Circuit Judge Kenneth K. Lee in an opinion joined by Circuit Judge Consuelo M. Callahan. "The ban makes it criminal for Californians to own magazines that come standard in Glocks, Berettas, and other handguns that are staples of self-defense."

Lee went on to note that numerous firearms were introduced more than 40 years ago with a standard magazine capacity of over 10 rounds and pre-dated the ban by generations. He pointed out that data suggests consumers in the U.S. own at least 230 million magazines, with about 115 million of those falling under California's LCM law-- which are legal in 41 states. 

"Its scope is so sweeping that half of all magazines in America are now unlawful to own in California," said Lee. "Even law-abiding citizens, regardless of their training and track record, must alter or turn over to the state any LCMs that they may have legally owned for years — or face up to a year in jail."

The dissenting judge on the panel, District Judge Barbara M. G. Lynn, argued the law should stand due to precedent, as other districts and appellate courts have upheld past magazine bans. 

Lynn is a 1999 appointment to the federal bench by President Bill Clinton while Callahan was a 2003 appointment by President George W. Bush and Lee was appointed last year by President Donald Trump. Notably, Lee's confirmation was opposed by both of California's sitting U.S. Senators, Senate Judiciary ranking member Dianne Feinstein and committee member Kamala Harris, the former the architect of the federal "assault weapon" ban and the latter the current presumptive Democrat Vice Presidental nominee. 

What does the ruling mean? 

"This is a huge win specifically for the right to possess these valuable self-defense tools. But more generally, this case may present the Supreme Court with an opportunity to set things straight on the underlying issue of what the standard of review test should be when considering any Second Amendment challenge," said Chuck Michel, president and General Counsel of the California Rifle & Pistol Association, the group that is backing the suit. “The Supreme Court seems inclined to do away with the complicated subjective tests that many courts have wrongly applied in Second Amendment cases, in favor of a clearer more objective 'originalist' approach that considers the text, history, and tradition of a law to determine what infringements might be tolerated."

However, it is unclear whether California residents may begin to purchase magazines over 10 rounds yet. Sales are currently on hold based on a stay by the lower court--issued in 2019 by U.S. District Judge Roger T. Benitez-- and cannot immediately resume unless Benitez lifts the stay. In the meantime, California Attorney General Xavier Becerra may request a rarely-granted en banc rehearing from an expanded 11-judge panel of the 9th Circuit or may appeal the case to the Supreme Court. Until then, the ruling is classified as "pending final resolution."

Should Becerra roll the dice on an en banc hearing, it should be pointed out that Trump has named at least 10 jurists to the 9th Circuit since 2017, about a third of the court's judges that aren't in senior status. 

“Trump has effectively flipped the circuit,” 9th Circuit Judge Milan D. Smith Jr., an appointee of President George W. Bush, told the LA Times earlier this year.


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