December 03, 2021
By Mark Chesnut
In a decision that drew a scathing rebuke from one judge involved, the 9th Circuit Court of Appeals on Thursday upheld California’s law banning firearms magazines that hold more than 10 rounds.
By a margin of 7-4, the en banc panel of the court ruled in Duncan v. Bonta that the law did not violate the U.S. Constitution or the rights of law-abiding California gun owners.
Judge Susan Graber, appointed by Bill Clinton, wrote for the majority: “The ban on legal possession of large-capacity magazines reasonably supports California’s effort to reduce the devastating damage wrought by mass shootings.”
“The ban on large-capacity magazines has the sole practical effect of requiring shooters to pause for a few seconds after firing 10 bullets, to reload or to replace the spent magazine,” Graber continued. “Nothing in the record suggests that the restriction imposes any more than a minimal burden on the Second Amendment right to keep and bear arms.”
Of the four dissenting judges, two—both Donald Trump appointees—wrote particularly strong critiques of the majority decision.
“California’s experiment bans magazines that are commonly owned by millions of law-abiding citizens for lawful purposes,” Judge Patrick Bumatay wrote in his dissent. “These magazines are neither dangerous and unusual, nor are they subject to longstanding regulatory measures.
“In ratifying the Second Amendment, the People determined that such restrictions are beyond the purview of government,” Judge Bumatay continued. “Our court reaches the opposite conclusion in contravention of the Constitution and Supreme Court precedent. In so doing, it once again employs analytical tools foreign to the Constitution—grafting terms like ‘intermediate scrutiny,’ ‘alternative channels’ and ‘reasonable fit’ that appear nowhere in its text. So yet again, we undermine the judicial role and promote ourselves to the position of a super-legislature—voting on which Duncan v. Bonta fundamental rights protected by the Constitution will be honored and which will be dispensed with.”
Dissenting judge Lawrence VanDyke even went so far as to question whether the majority acted out of long held anti-gun bias in deciding the case.
“If ever there was a case study illustrating Madison’s concern about ‘evil lurking under plausible disguises, and growing up from small beginnings,’ it is our circuit’s Second Amendment jurisprudence,” Judge VanDyke concluded in his strongly-worded 27-page dissent. “In the 13 years since the Supreme Court ruled in Heller that the Second Amendment ‘guarantee[s] the individual right to possess and carry weapons in case of confrontation,’ our court has trimmed back that right at every opportunity—to the Duncan v. Bonta point that now, in the nine Western states covered by our court, the right to ‘keep and bear arms’ means, at most, you might get to possess one janky handgun and 2.2 rounds of ammunition, and only in your home under lock and key. That’s it. That’s ridiculous, and so I must respectfully dissent.”
Plaintiffs plan to appeal, which could send the case to the U.S. Supreme Court should the justices decide to consider the matter.
Freelance writer and editor Mark Chesnut is the owner/editorial director at Red Setter Communications LLC. An avid hunter, shooter and political observer, he has been covering Second Amendment issues and politics on a near-daily basis for the past 20 years.