Last Stand: The Battle Over High-Capacity Magazines Heats Up in the 9th Circuit

*John Chase

I. Setting the Procedural Stage

The struggle over California’s efforts to prohibit high-capacity magazines came to a head on August 14, 2020, when a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued an opinion effectively striking down a 2016 statute.[1]  This ruling was the culmination of what has been a long journey beginning in June 2017, when the U.S. District Court for the Southern District of California granted a motion for a preliminary injunction against enforcement of the law.[2]  Following an appeal by California Attorney General Xavier Becerra, the Ninth Circuit affirmed the order of the district court.[3]

A permanent injunction was issued on March 29, 2019 when the district court granted a motion for summary judgment against Attorney General Becerra.[4]  This decision ushered in “Freedom Week” where “hundreds of thousands—if not millions—of magazines capable of holding more than 10 rounds were lawfully purchased by California gun owners.”[5]  This only lasted a week, however, as an April 4 ruling from the district court granted a motion to stay pending the appeal filed by Becerra on April 1.[6]  This back-and-forth caused a lot of confusion on the part of gun owners.[7]  A year later, on April 2, 2020, the case was presented to the Ninth Circuit at oral argument; and then on August 14, the majority opinion continued the momentum when it deemed California Penal Code § 32310 unconstitutional.[8]

II. The Response from Proponents on Both Sides

Groups on either side of the issue responded as would be expected, with a spokesperson for the National Rifle Association (NRA) saying, “This is a huge win for the NRA and gun owners nationwide.”[9]  Chuck Michel, President and General Counsel of The California Rifle & Pistol Association (CRPA) concurred, saying, “Today’s decision in Duncan v. Becerra is a major victory for the Second Amendment, both in California and across the country.”[10]  Listed as one of the plaintiffs, the CRPA “has led the fight through the courts with the assistance of the National Rifle Association” since the seminal pleading in 2017.[11]

Offering a different opinion, Hannah Shearer, the litigation director at Giffords Law Center to Prevent Gun Violence, wrote an op-ed for The Daily Californian where she stated, “I desperately want to live in a state where my physical safety is prioritized over faulty reasoning about self-defense rights, and I hope California’s attorney general [sic] will ask the full court to reconsider . . . .”[12]  Eric Tirschwell, the managing director for a pro-firearms-restrictions litigation team said, “This ruling is an extreme outlier” given earlier decisions.[13]  “He said he expects a larger 9th Circuit panel to ‘correct this erroneous, dangerous, and out-of-step decision.’”[14]  Writing for San Francisco’s SFist, Jay Barmann was more outspoken: “[E]xpect a lot more of this bullshit now that Trump and McConnell have succeeded in packing the courts with judges whose opinions adhere to conservative politics more than sound legal reasoning.”[15]

III. Two Factors at Play in the Possible Outcome

A. Trump’s Reform of the Federal Courts

This rhetoric highlights one of the main issues that bears further consideration.  It has not gone unnoticed that since being elected, the Trump administration has worked to temper what is, by reputation, one of the most liberal circuits among the federal appellate court system.[16]  When the Ninth Circuit issued its decision on August 14, 2020, print and online news sources speculated about what Attorney General Becerra may choose as his next move—whether he would keep it in the Ninth Circuit and seek an en banc review of the decision, or skip that step and hope to be granted a writ of certiorari from the Supreme Court.[17]  An appeal to the Supreme Court appeared unlikely, as a majority of justices had previously declined “to consider several challenges to federal and state gun control laws, including Massachusetts’ ban on large-capacity ammunition magazines.”[18]  More generally, with President Trump’s appointments of Neil Gorsuch and Brett Kavanaugh, the Supreme Court had become viewed as more conservative, which would be good for gun-rights advocates, but not for Attorney General Becerra.[19]  Further, as of December, 2019, President Trump had appointed nine judges to the 29-member bench in the Ninth Circuit.[20]  This shrinks what was an 11-seat majority of Democrat-appointed judges down to three—a shift that also may not favor Becerra.[21]

B. Determining the Appropriate Standard of Review

Beyond the shifting makeup of both the Supreme Court and the Ninth Circuit, the other issue at play here is that the Ninth Circuit, in its August 14 opinion, effectively set the wheels in motion to establish strict scrutiny as the standard of review for all future Second Amendment controversies.[22]  Yet, the court declared that even if the lower standard of intermediate scrutiny were used, the statute as written would still not stand.[23]  The decision to apply strict scrutiny begins with recognition that California Penal Code § 32310 is not narrowly tailored to achieve a compelling state interest.[24]  “Its scope is broad and indiscriminate . . . [without providing any] meaningful exceptions for law-abiding citizens.”[25]  The analysis of the propriety of using strict scrutiny constitutes a very significant portion of the opinion.[26]  The CRPA sees this as a shift in their favor, and would support an appeal and enshrinement by the Supreme Court, especially in recognition of its purported conservative bent.[27]  In an email to the Associated Press, CRPA president and General Counsel Michel said, “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.”[28]

IV. Becerra Decides to Seek an En Banc Review

This tension and suspense over what step Attorney General Becerra would take continued for two weeks when on August 28, 2020, he submitted an eleventh-hour petition for rehearing en banc.[29]  In the petition, Becerra argues that the Ninth Circuit has ignored its own precedent in Fyock v. Sunnyvale, and that the court’s reasoning runs contrary to opinions from five other circuit courts that upheld restrictions on high-capacity magazines. [30]  Becerra points out that in all these other cases, intermediate scrutiny was the standard applied.[31]  The outcome, if the petition is granted, will hang on the proper level of scrutiny to apply and any effect that the Trump administration’s efforts to ideologically balance federal courts may have.[32]

* John Chase is a second-year evening student at the University of Baltimore where he is a Staff Editor for Law Review. John works full-time in the field of software engineering and data analysis where he has spent the majority of his lengthy career and has interests in criminal prosecution, legal aid, and international law.


[1]           Duncan v. Becerra, 970 F.3d 1133, 1168–69 (9th Cir. 2020) (The statute prohibited manufacturing, importing, keeping or offering for sale, giving, lending, buying, receiving, or possessing any large-capacity magazine, and required any already in possession to be removed from the state, sold to a licensed dealer, or surrendered to law enforcement.  Cal. Penal Code § 32310.  Under California penal code, a large-capacity magazine is “any ammunition feeding device with the capacity to accept more than 10 rounds.”  § 16740).

[2]           Duncan v. Becerra, 265 F. Supp. 3d 1106, 1139–40 (S.D. Cal. 2017), aff’d, 742 Fed. App’x 218 (9th Cir. 2018).

[3]           Duncan v. Becerra, 742 Fed. App’x 218, 220 (9th Cir. 2018).

[4]           Duncan v. Becerra, 366 F. Supp. 3d 1131, 1186 (S.D. Cal. 2019), aff’d, 970 F.3d 1133 (9th Cir. 2020).

[5]           Moving Forward with “Large Capacity” Magazine Court Ordered Stay, Cal. Rifle & Pistol Ass’n (Apr. 8, 2019), https://crpa.org/news/blogs/crpa-alert-moving-forward-with-large-capacity-magazine-court-ordered-stay/ [hereinafter Court Ordered Stay].

[6]           Duncan v. Becerra, No. 17-cv-1017-BEN-JLB, 2019 WL 1510340, at *1, *3 (S.D. Cal. Apr. 4, 2019).

[7]           See Court Ordered Stay, supra note 5.

[8]           Duncan, 970 F.3d at 1141.

[9]           Dave Workman, Huge Victory for 2A as 9th Circuit Panel Smacks CA Magazine Ban, Liberty Park Press (Aug. 14, 2020), https://www.libertyparkpress.com/huge-victory-for-2a-as-9th-circuit-panel-smacks-ca-magazine-ban/.

[10]         CRPA Secures Victory in Major Duncan v. Becerra Court Case, Cal. Rifle & Pistol Ass’n (Aug. 14, 2020), https://crpa.org/news/blogs/crpa-secures-victory-in-major-duncan-v-becerra-court-case/.

[11]         Id.

[12]         Hannah Shearer, CA Must Stand for Gun Safety, Keep Fighting for Magazine Restrictions, Daily Californian (Aug. 25, 2020), https://www.dailycal.org/2020/08/25/ca-must-stand-for-gun-safety-keep-fighting-for-magazine-restrictions/.

[13]         Don Thompson, 9th Circuit Ends California Ban on High-Capacity Magazines, The Associated Press (Aug. 14, 2020), https://apnews.com/11a1e49886a3143f2db3fbf5b10c5069.

[14]         Id.

[15]         Jay Barmann, Trump and Bush Appointees on Ninth Circuit Rule That CA Ban on High-Capacity Magazines Is Unconstitutional, SFist (Aug. 14, 2020), https://sfist.com/2020/08/14/trump-and-bush-appointees-on-ninth-circuit-toss/.

[16]         See Susannah Luthi, How Trump Is Filling the Liberal 9th Circuit with Conservatives, Politico (Dec. 27, 2019, 4:26 PM), https://www.politico.com/news/2019/12/22/trump-judges-9th-circuit-appeals-court-088833.

[17]         See Thompson, supra note 13.

[18]         Id.

[19]         Id.

[20]         See Luthi, supra note 16.

[21]         Id.

[22]         Duncan v. Becerra, 970 F.3d 1133, 1143 (9th Cir. 2020); Thompson, supra note 13.

[23]         Id.

[24]         Id. at 1164–65.

[25]         Id. at 1163.

[26]         See id. at 1145–69.

[27]         See Thompson, supra note 13.

[28]         Id.

[29]         See Cam Edwards, California AG Attempts to Undo Decision Striking Down Magazine Ban, Bearing Arms (Aug. 28, 2020, 6:00 PM), https://bearingarms.com/cam-e/2020/08/28/california-ag-decision-mag-ban/.

[30]         Petition for Rehearing En Banc at 1–2, Duncan v. Becerra, 970 F.3d 1133 (9th Cir. 2020) (No. 19-55376) (citing Fyock v. Sunnyvale, 779 F.3d 991, 994, 998–9 (9th Cir. 2015)).  In Fyock, the Ninth Circuit affirmed the district court’s denial of a motion for preliminary injunction against a city ordinance restricting possession of large-capacity magazines, and held that the ordinance was subject to an intermediate level of scrutiny under the Second Amendment.  779 F.3d at 994, 998–9.

[31]         Id. at 2.

[32]         See Luthi, supra note 16.

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