Courtesy of James R. Touchstone, Esq.
On August 14, 2020, the Ninth Circuit Court of Appeals in Duncan v. Becerra, held that a California statute that banned possession of large-capacity magazines (“LCMs”) holding more than ten rounds of ammunition, violated the Second Amendment. In reaching its conclusion, the Court held that California Government Code section 32310 burdened protected conduct and, applying strict scrutiny, that the statute was not narrowly tailored to achieve the compelling state interests it purported to serve.
In response to tragic and highly publicized mass shootings, the state of California in 2016 passed legislation which amended Penal Code section 32310 to enact a wholesale ban on the possession of LCMs by “any person in this state who possesses any large-capacity magazine, regardless of the date the magazine was acquired” in the state of California. (Section 32310(c).) Possession may constitute a misdemeanor offense punishable by up to a year’s worth of jail time. The law also requires citizens who own LCMs to remove the magazines from the state, sell them to a firearms dealer, or surrender them to law enforcement for destruction.
Millions of Americans across the country own LCMs. One estimate based in part on government data showed that from 1990 to 2015, civilians possessed about 115 million LCMs out of a total of 230 million magazines in circulation. LCMs may be lawfully possessed in 41 states and under federal law. LCMs are commonly used in many handguns, which the Supreme Court has recognized as the “quintessential self-defense weapon.” District of Columbia v. Heller, 554 U.S. 570, 629 (2008).
Virginia Duncan and other plaintiffs, who lawfully acquired LCMs or represented those who did so (collectively, the “Owners”), brought a constitutional challenge to Section 32310. Two days before the possession ban was to take effect, the District Court issued a preliminary injunction enjoining enforcement of the law. On appeal, the Ninth Circuit Court of Appeals affirmed. While the interlocutory appeal was pending, the Owners filed a motion for summary judgment. The District Court issued an order granting the Owners’ motion, concluding in part that Section 32310 violates the Second Amendment.
On the Second Amendment claim, the District Court based its decision on three independent holdings. First, it concluded that Section 32310 did not satisfy the “simple Heller test,” which queries whether the firearm or firearm component is commonly owned by law-abiding citizens for lawful purposes. The District Court found that “[m]illions of ammunition magazines able to hold more than 10 rounds are in common use by law-abiding responsible citizens for lawful uses like self-defense.” Second, the District Court held that Section 32310 fails under strict scrutiny for lack of narrow tailoring. The District Court found Section 32310’s complete prohibition on possession by nearly everyone, everywhere, to be the hallmark of a sloppy fit. Finally, the District Court held that, even though it believed intermediate scrutiny was the wrong standard to apply, Section 32310 still failed under this more lenient standard because the statute was not a reasonable fit to the important public safety interests that it was enacted to serve. Based on these conclusions, the District Court found no genuine dispute of material fact that Section 32310 violated the United States Constitution and ordered summary judgment for the Owners. California appealed.
The Ninth Circuit Court of Appeals explained that the Second Amendment provides: “A well-regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. In 2008, the Supreme Court held that the Second Amendment protects “an individual right to keep and bear arms.” Heller, 554 U.S. at 595. The Court later incorporated the Second Amendment to the states through the Fourteenth Amendment’s Due Process Clause. McDonald v. City of Chicago, 561 U.S. 742, 767 (2010). A citizen’s right to self-defense, the McDonald Supreme Court held, is “deeply rooted in this Nation’s history and tradition,” and “fundamental to our scheme of ordered liberty.” Id. at 767-78. The Ninth Circuit here added that “history, text, and tradition underscore that the right to armed self-defense is fundamental.”
The Supreme Court has further declared that self-defense “is a basic right, recognized by many legal systems from ancient times to the present day, and . . . individual self-defense is ‘the central component’ of the Second Amendment right.” McDonald, 561 U.S. at 767 (citing Heller, 544 U.S. at 599) (emphasis and internal citation omitted). Heller found the “inherent right to self-defense” to be a critical component of the Second Amendment and that the virtual handgun ban at issue in Heller was constitutionally infirm because the handgun is the “quintessential self-defense weapon.” Id. at 628-29. The Court similarly found the disassembly or trigger-lock requirement unconstitutional because it “makes it impossible for citizens to use [arms] for the core lawful purpose of self-defense.” Id. at 630.
However, the Ninth Circuit observed, Heller recognized that certain exceptions to the Second Amendment apply. For example, weapons that are “dangerous and unusual” fall outside the Second Amendment’s protection. Id. at 627. Furthermore, the Court cited an open-ended list of “presumptively lawful regulatory measures” that constitute acceptable “longstanding prohibitions” on firearm ownership. Id. at 626-27, 627 n.26. Such prohibitions include possession of firearms by felons and the mentally ill, prohibitions on carrying in sensitive locations, and conditions or qualifications on the commercial sale of firearms. Id.
The Court of Appeals explained that the standard within the Ninth Circuit assesses the constitutionality of firearm regulations under a two-prong test. This inquiry “(1) asks whether the challenged law burdens conduct protected by the Second Amendment and (2) if so, directs courts to apply an appropriate level of scrutiny.” United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013) (internal citations omitted).
To determine whether the law burdens protected conduct, four questions are asked. First, as a threshold matter, the court must determine whether the law regulates “arms” for purposes of the Second Amendment. See Jackson v. City and Cty. of San Francisco, 746 F.3d 953, 967 (9th Cir. 2014). Second, whether the law regulates an arm that is both dangerous and unusual. See United States v. Henry, 688 F.3d 637, 640 (9th Cir. 2012) (citing District of Columbia v. Heller, 554 U.S. 570, 627 (2008)). If the regulated arm is both dangerous and unusual, then the regulation does not burden protected conduct and the inquiry ends. Third, the Court assesses whether the regulation is longstanding and thus presumptively lawful. See Chovan, 735 F.3d at 1137. And fourth, the court considers whether there is any persuasive historical evidence in the record showing that the regulation affects rights that fall outside the scope of the Second Amendment. See Silvester v. Harris, 843 F.3d 816, 821 (9th Cir. 2016). If either of these latter questions is found in the affirmative, the law does not burden protected conduct and the inquiry ends.
The Ninth Circuit explained that if a court finds that a regulation burdens protected conduct, then it must proceed to the second prong of analysis and determine the appropriate level of constitutional scrutiny. See Chovan, 735 F.3d at 1136. This, in turn, requires the court to ask two more questions. First, how “close” does the challenged law come to the core right of law-abiding citizens to defend hearth and home. See id. at 1138. And second, the court analyzes whether the law imposes substantial burdens on the core right. See id. If a challenged law does not strike at the core Second Amendment right or substantially burden that right, then intermediate scrutiny applies. See Silvester, 843 F.3d at 821; Jackson, 746 F.3d at 961; Chovan, 735 F.3d at 1138. Only where both questions are answered in the affirmative will strict scrutiny apply. See Silvester, 843 F.3d at 821.
The Ninth Circuit held that under the first prong of the test, Section 32310 burdened protected conduct. First, the Court held that firearm magazines are protected arms under the Second Amendment. Second, the Court held that LCMs are commonly owned and typically used for lawful purposes and are not “unusual arms” that would fall outside the scope of the Second Amendment. Third, the Court held that LCM prohibitions are not longstanding regulations and do not enjoy a presumption of lawfulness. Fourth, the Court determined that there was no persuasive historical evidence in the record showing LCM possession fell outside the ambit of Second Amendment protection.
Turning next to second prong of the inquiry, the Court of Appeals held that strict scrutiny was the appropriate standard to apply. First, the Court held that Section 32310 struck at the core right of law-abiding citizens to self-defend by banning LCM possession within the home. Second, the Court held that Section 32310’s near-categorical ban of LCMs substantially burdened core Second Amendment rights. Third, the Court held that decisions in other circuits were distinguishable. Fourth, the Court held that the Ninth Circuit’s decision in Fyock v. City of Sunnyvale, 779 F.3d 991 (9th Cir. 2015), did not obligate the Court to apply intermediate scrutiny.
The Court held that Section 32310 did not survive strict scrutiny review. The Court held that the state interests advanced here were compelling: preventing and mitigating gun violence. Second, the Court found that Section 32310 was not narrowly tailored to achieve the compelling state interests it purported to serve because the state’s chosen method — a statewide blanket ban on possession everywhere and for nearly everyone — was not the least restrictive means of achieving the compelling interests.
The Ninth Circuit declared that even if intermediate scrutiny were to apply, Section 32310 would still fail; while the interests expressed by the state qualified as “important,” the means chosen to advance those interests were not substantially related to their service.
The Ninth Circuit Court of Appeals accordingly affirmed the District Court’s summary judgment in favor of the Owners and held that Section 32310 violated the Second Amendment.
Chief District Judge Lynn dissented, and would reverse the District Court’s grant of summary judgment. Judge Lynn wrote that the majority opinion conflicted with Circuit precedent in Fyock, and with decisions in all of the six sister Circuits that addressed the Second Amendment issue addressed here. Judge Lynn would hold that intermediate scrutiny applies, and that Section 32310 satisfied that standard.
HOW THIS AFFECTS YOUR AGENCY
Significantly, the Ninth Circuit noted in the Duncan case that the California statute would still be unconstitutional under the less restrictive intermediate standard of constitutional review. This represents an important concession from the Ninth Circuit concerning the potential use of the intermediate standard of review in future Second Amendment challenges to statutes.
The Ninth Circuit’s ruling may not be the end of matters regarding possession of LCMs under Section 32310. The California DOJ may choose to petition the Ninth Circuit for a rehearing en banc or may seek review of the decision by the Supreme Court of the United States. Accordingly, the final status of this ruling remains unclear at this time. Moreover, the status of California’s ban on the acquisition and manufacture of LCMs remains in effect for now until the Ninth Circuit issues its mandate to the District Court, signifying an end to legal proceedings in the Court of Appeals.
The California Department of Justice recently posted a notice concerning the Duncan ruling, which reads, in part: “On August 14, 2020, a three-judge panel of the Ninth Circuit Court of Appeals affirmed the district court decision in Duncan v. Becerra. The appellate ruling does not lift the stay that California Attorney General Xavier Becerra secured at the commencement of the appeal. The stay remains in place until the appellate process is final. This allows California’s nearly twenty-year-old prohibition on the acquisition of new large-capacity ammunition magazines to remain in effect pending further appellate proceedings.” Based upon the tenor of this statement, it appears likely that the California DOJ will seek further review of the three-judge panel ruling, as noted above. However, appellate review at this stage of appellate proceedings is discretionary, and not granted as a matter of right.
As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446–1400 or via email at email@example.com.
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 2020 U.S. App. LEXIS 25836 (9th Cir. Aug. 14, 2020).
 See 2016 Cal. Stat. 1549 section 1 (Senate Bill 1446), and Proposition 63 amending Section 32310(c).
 The Penal Code provides several exceptions to Section 32310, including those for active or retired law enforcement officers, see Sections 32400, 32405, 32406, 32455, armored vehicle security forces, see Section 32435, manufacture for government use, see Section 32440, holders of special weapons permits for limited purposes, see Section 32450, and use as props in film production, see Section 32445.
 These include the Glock pistol — sometimes referred to as “America’s gun” due to its popularity — and its variants, and the popular the Beretta Model 92.
 See Client Alert Vol. 32, No. 17.
 See Duncan v. Becerra, 742 F. App’x 218, 221-22 (9th Cir. 2018).
 See Client Alert Vol. 34, No. 14.