A panel of the 9th U.S. Circuit Court of Appeals has upheld California's ban on high-capacity magazines in a split decision that may be headed for the U.S. Supreme Court
By DON THOMPSON Associated Press
November 30, 2021, 8:28 PM
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SACRAMENTO, Calif. -- The 9th U.S. Circuit Court of Appeals overturned a ruling by two of its judges and upheld California’s ban on high-capacity magazines Tuesday in a split decision that may be headed for the U.S. Supreme Court.
“The statute outlaws no weapon, but only limits the size of the magazine that may be used with firearms,” the court said in the 7-4 ruling.
The majority reasoned that “the record demonstrates that the limitation interferes only minimally with the core right of self-defense, as there is no evidence that anyone ever has been unable to defend his or her home and family due to the lack of a large-capacity magazine; and ... that the limitation saves lives.”
The 11-member panel of the San Francisco-based court acted after two of three judges on a smaller 9th Circuit panel last year ruled the state’s ban on magazines holding more than 10 bullets violates the U.S. Constitution’s protection of the right to bear firearms.
Gunowners' rights groups plan to appeal the ruling to the U.S. Supreme Court. They have been trying to get firearms cases before a high court that tilts more to the right because of appointments by former President Donald Trump.
9th Circuit Judge Patrick Bumatay, who was appointed by Trump, wrote a dissent and said large-capacity magazines are “commonly used" by Americans for self-defense.
“Indeed, these magazines are lawfully owned by millions of people nationwide and come standard on the most popular firearms sold today,” he wrote. “If California’s law applied nationwide, it would require confiscating half of all existing firearms magazines in this country.”
His dissent was joined by two other judges, while a fourth judge wrote a separate dissenting opinion.
The majority decision hinged in part on which legal standard should be used to determine the outcome, and the 9th Circuit’s majority chose the more stringent standard. It found that “intermediate scrutiny applied because the ban imposed only a minimal burden on the core Second Amendment right to keep and bear arms.”
Gun rights groups hope the Supreme Court will select a lower legal standard for Second Amendment cases in an upcoming decision on a New York law restricting concealed weapons.
“We’re disappointed but not surprised that this particular 11-judge panel had the numbers to overturn the lower court decision. But the fight is far from over,” said Chuck Michel, the California Rifle & Pistol Association’s president and general counsel. Seven judges on the 9th Circuit panel were appointed by Democratic presidents.
“The panel is bitterly factioned, and the dissenting judges are all suggesting that the Supreme Court needs to take this case to explain how a Second Amendment challenge should be reviewed,” he said.
Four years ago, San Diego-based U.S. District Judge Roger Benitez declared unconstitutional a state law that since 2000 had prohibited buying or selling large-capacity magazines. That law barred new sales or imports but let those who had the magazines before then keep them.
Benitez also barred the state from enforcing a voter-approved law that would have prohibited gun owners from possessing magazines holding more than 10 bullets. The practical impact was that those who already possessed weapons with such magazines would have had to turn them in.
Gun groups estimated that more than a million high-capacity magazines may have legally flooded into California during a one-week window before Benitez stayed his ruling pending appeal. The three-judge 9th Circuit panel upheld Benitez’s ruling and kept the stay in place.
Aside from the effect on high-capacity magazine laws in California and other states, Tuesday's ruling helps to unjam a roadblock in other pending cases over the state's ban on assault weapons.
Everytown for Gun Safety, a leading group seeking firearms restrictions, said state officials' appeal of Benitez's ruling this year throwing out California's assault weapon restrictions was on hold while the 9th Circuit considered the ban on high-capacity magazines.
The assault weapons ruling is also on hold while the appeals court considers the same issues in a different case, where a different federal judge upheld the state's ban in 2018.