December 23, 2021
We recently informed you about an unfortunate 9th Circuit Court of Appeals ruling that California’s magazine capacity law doesn’t infringe on the Second Amendment rights of the state’s law-abiding gun owners.
Earlier this week, a stay was granted in the case, Duncan v. Bonta, which will allow Golden State residents to continue possession of any magazines that hold more than 10 rounds that were acquired during “Freedom Week” or prior to the ban taking effect. Freedom Week refers to the week-long period from March 29 to April 5, 2019, when it was temporarily legal to buy, sell and ship large-capacity magazines in California as a result of a federal court judge ruling the ban unconstitutional.
An en banc panel of the 9th Circuit on Nov. 30 overturned, by a 7-4 vote, the earlier ruling that the mag cap law, which bans magazines that can hold more than 10 rounds, was a direct infringement upon the Second Amendment.
Judge Susan Graber, a Bill Clinton appointee, 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.”
She continued: “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. 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.”
Some of the judges involved with the decision were particularly incensed at the ruling, with one writing a very pointed dissent.
“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.”
This small victory for Californians who own magazines that hold more than 10 rounds might be short-lived, however. The court agreed to stay the mandate from its decision only until May 19, 2022. However, that could be extended should the decision be appealed to the U.S. Supreme Court.
“If the Appellees file a petition for certiorari in the United States Supreme Court during the period of the partial stay, the partial stay shall continue until final disposition by the Supreme Court,” the order states.
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.