Flash News from the 9th Circuit Court of Appeals

Freedom Week in California has now become Freedom Forever with regards to standard capacity magazines. A panel of the 9th Circuit Court of Appeals upheld Judge Roger Benitez’ ruling that the magazine ban in California violates the core right of the Second Amendment. Californians are no longer second class citizens with regards to gun magazines of any type. Yes, the California Attorney General can ask for an en banc hearing to overturn the decision, but thanks to the appointments to the 9th by President Trump, a reversal is no longer a sure thing. Message to ammo mag manufacturers, crank up the machines, California is back in the market. GOC, GOA and GOF were important amici to this case. Congratulations all!


The following is a brief analysis from our attorneys at Gun Owners Foundation (GOF) on the ruling from the 9th regarding Duncan v Becerra, California’s laws banning standard capacity magazines.

Let freedom ring…

Sam Paredes
Executive Director
Gun Owners of California

And, amici to this case.


Subject: Duncan v. Becerra

Amici —

Great news!  Just a week after we excoriated the Ninth Circuit (in the Rhode v. Becerra case) for its Second Amendment jurisprudence, earlier today, a panel has decided Duncan v. Becerra, upholding Judge Benitez’s decision striking down California’s large-capacity magazine ban.

The decision and amicus brief you filed on September 23, 2019 is attached.

The decision has lots of great content.  Here are just the highlights.

The panel was stuck with applying the two-step test (only the en banc court can overturn that decision) — noting:

“We are aware of the criticism that the two-step test ‘appears to be entirely made up’ and that ‘its application has yielded analyses that are entirely inconsistent with Heller.’ [citing Justice Thomas dissent in Rogers v. Grewal] But we must follow this court’s precedent.”

Nevertheless, the court began by discussing “The Second Amendment is a fundamental right rooted in both text and tradition.”

However, applying the two-step precedent, the court found:
(1) that large-capacity magazines are protected by the Second Amendment,
(2) that LCMs are not unusual and are commonly used in lawful activity,
(3) that the prohibition is not presumptively lawful as a longstanding regulation,
(4) there is no historical evidence that is persuasive that LCMs fall outside the scope of the Second Amendment’s protection

Applying strict scrutiny, the court found that the LCM ban infringes the core right to have protected arms in the home and thus directly violates Heller, and thus substantially burdens Second Amendment protected rights.  Alternatively, the court held that even if intermediate scrutiny applied, the law would still fail.

The two judges constituting the majority were Judge Consuelo Callahan (a GW Bush appointee) and Kenneth Lee (a Trump appointee).  Dissenting, a district judge (Northern Dist. of Texas) sitting by designation, would have applied intermediate scrutiny and upheld the LCM ban.  No surprise, she was a Clinton appointee.

Now we wait until the Ninth Circuit orders rehearing en banc.  The only question is whether the Court will wait for a petition for rehearing en banc, or just issue an order sua sponte.

Jeremiah & Rob

— William J. Olson, P.C., Attorneys at Law