A panel from the Ninth Circuit Court of Appeals voted 2-1 Friday to uphold a lower court ruling that California’s ban on gun magazines holding more than 10 rounds of ammunition is unconstitutional.
The ban was enacted in 2016 through the voter-approved Proposition 63.
Judge Kenneth Lee, who was appointed last year by President Donald Trump, wrote in a 66-page order that Proposition 63 “burdens conduct protected by the Second Amendment” and that it “struck at the core of right of law-abiding citizens to self-defend.”
Lee was joined by Judge Consuelo Callahan, who was appointed by President George W. Bush. The pair upheld a 2018 decision by U.S. District Judge Robert Benitez granting summary disposition to gun owner Virginia Duncan and the California Pistol & Rifle Association. The plaintiffs had argued that high-capacity magazines are commonly owned for lawful purposes, such as self-defense, and in particular by women to defend against rape and home intrusions.
Judge Barbara Lynn, appointed by President Bill Clinton, cast the dissenting vote and wrote in a 14-page opinion that the decision conflicts with legal precedent.
Chuck Michel, president and general counsel of the California Pistol & Rifle Association, said in a statement that the decision was a “major victory” for the Second Amendment.
“This is a huge win specifically for the right to own these valuable self-defense tools,” he said. “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.”
In his opinion, Lee wrote that had the law included carveouts such as a grandfather clause for those who already owned high-capacity magazines or people in rural areas where the nearest law enforcement could be miles away, it may have passed constitutional muster. Lee also noted that such magazines are a valuable self-defense tool for people living in high-crime communities.
In addition to women, Lee also specifically pointed to Asian Americans, who have increasingly come under harassment during the coronavirus pandemic, and LGBTQ people as groups who might seek out such magazines to defend themselves.
Lee also noted statistics showing the criminal use of high-capacity magazines is relatively low compared to their market saturation.
“This is the antithesis of unusual,” Lee wrote as he detailed the history of semiautomatic and multi-shot firearms dating back to 1580. “They were not novel or unforeseen inventions to the Founders.”
