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A three-judge panel of the Ninth Circuit Court of Appeals has just ruled for the plaintiffs in Duncan v. Becerra, striking down the state’s “large capacity” magazine ban. Again. You can read the full decision here.

As the opinion notes:

The Ninth Circuit employs a two-prong inquiry to determine whether firearm regulations violate the Second Amendment: (1) whether the law burdens conduct protected by the Second Amendment; and (2) if so, what level of scrutiny to apply to the regulation. United states v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013)

The panel held that under the first prong of the test, Cal. Penal Code § 32310 burdened protected conduct. First, the panel held that firearm magazines are protected arms under the Second Amendment. Second, the panel held that LCMs are commonly owned and typically used for lawful purposes, and are not “unusual arms” that would fall outside the scope of the Second Amendment. Third, the panel held that LCM prohibitions are not longstanding regulations and do not enjoy a presumption of lawfulness. Fourth, the panel held that there was no persuasive historical evidence in the record showing LCM possession fell outside the ambit of Second Amendment protection.

Proceeding to prong two of the inquiry, the panel held that strict scrutiny was the appropriate standard to apply. First, the panel held that Cal. Penal Code § 32310 struck at the core right of law-abiding citizens to self-defend by banning LCM possession within the home. Second, the panel held that Section 32310’s near-categorical ban of LCMs substantially burdened core Second Amendment rights. Third, the panel held that decisions in other circuits were distinguishable. Fourth, the panel held that this circuit’s decision in Fyock v. City of Sunnyvale, 779 F.3d 991 (9th Cir. 2015), did not obligate the panel to apply intermediate scrutiny.

The panel held that Cal. Penal Code § 32310 did not survive strict scrutiny review. First, the panel held that the state interests advanced here were compelling: preventing and mitigating gun violence. Second, the panel held that Section 32310 was not narrowly tailored to achieve the compelling state interests it purported to serve because the state’s chosen method – a statewide blanket ban on possession everywhere and for nearly everyone – was not the least restrictive means of achieving the compelling interests.

The panel held that even if intermediate scrutiny were to apply, Cal. Penal Code § 32310 would still fail. The panel held that while the interests expressed by the state qualified as “important,” the means chosen to advance those interests were not substantially related to their service.

Look for a couple of things to happen. First, California Attorney General Xavier Becerra will issue a statement decrying the ruling and announcing that it’s a crime against humanity that endangers the lives of all Californians. He’ll then ask the court for an en banc review of the decision and an order allowing the continued enforcement of the ban while the court considers the case.

In the mean time, look for online retailers to open up the floodgates — again — and start shipping magazines that hold more than 10 rounds into the state just as fast as UPS (and their dwindling inventories) will allow.

Watch this space.

UPDATE: As TTAG’s resident legal counsel LKB notes in the comments below, don’t look for another freedom week resulting from today’s ruling:

The stay against enforcement of the injunction continues until the mandate (the official instructions from the Court) issues. The mandate won’t issue until there has been a ruling on the all-but-certain motion for en banc rehearing. And as the Hawaii open carry case demonstrates, CTA9 is perfectly willing to sit on such requests for, quite literally, years.

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116 COMMENTS

        • Exactly. I loaded up during last year’s Freedom Week. This time, I’m going to get some drums and fun sticks, if available.

        • Same here. Was saving up for another pistol, but with little supply and high prices, that money is going to mags instead.

        • GunMagWarehouse is allowing CA purchases to proceed, FYI.

          And both KFIAM640 and KABC radio have announced to the public that the Ninth has ruled the ban as unconstitutional. That means this is being published to the public and online stores are now honoring orders, so I don’t see how any claim of ‘bad faith’ can be applied.

        • Nope. Scratch that. They took it, then contacted me saying they cancelled. Probably waiting for their legal counsel to provide their own corroboration. I’ll keep the cart open on the screen as a speed dial, and try again every hour.

        • Whew! Palmetto just opened up their site. Got my order placed for *some* of what I wanted. They aren’t as stocked as GunMagWarehouse, and are understandably out of stock on some Glock mags due to the recent COVID buying.

      • If it happened in California, it could happen here. Since this pandemic/shut down, I’ve seen people are changing their anti-gun minds. I hope the judges around here are too.

        • I guess when you live in a upside down world where everything is backwards this is what you get; a 9th Circuit that produces a pro Bill Of Rights ruling on the 2A and a S.C.O.T.U.S. that doesn’t.

      • It would appear that Orange Man Bad’s judicial appointments have made a noticeable difference on the Ninth Circus,now if he can just stop himself from further violations of the Constitution.

        • Usually I read you as a pretty straight shooter. (no pun intended)

          How has the President violated the Constitution? He certainly would not be the first, just saying, but I’m not aware of anything other than he’s had to play defense for 3 years. The whole Russia thing was a soft coup from the word go.

      • I also live in Cook County. I have a non-neutered AR15 & 9 30 round magazine’s loaded with 62gr goodness. They sell regular AR’S & 30 round mags a mile from me. IN COOK! Chiraq IS the problem. ILLinois(which sucks)is a helluva lot better than Commiefornia…

    • As the article notes, call for en banc review coming in 3, 2, 1…

      Full circuit decision to reverse panel decision soon after.

      • Exactly.

        I’m not a lawyer and I don’t know the details, but I’ve read that there was a time when circuit courts were doing en banc reviews at the drop of a hat. Then non-binding rules restricting its use were put in place which worked for awhile. Not any more.

        • All the more reason to get the mags now before the libs put another stop to it. They’re not going to be able to take them away once received. The ammo will start to get back in stock in due time.

        • If the Democrats win in November, they’ll confiscate the mags just like the ATF confiscated the bump stocks.

          Unless…

    • Gripe about Trump’s 2A stance if you have to, but one thing he’s managed to do with judicial appointments is to change the complexion of the 9th Circuit.

      • We’ll see by just how much with the en banc decision. Don’t hold your breath.

        If Trump is given another 4 years, he’ll likely succeed in changing the direction of the Federal courts for a generation or more.

      • Compliant AR’s are a thing and they are much easier and cheaper in CA than NY for both acquiring and conversion back to normal when they leave the state.

        • Compliancy is also un Constitutional as are all gun control laws, now if the braindead civilian disarmament Marxist’s understood that fact.

        • In NY, if you go featureless instead of fixed mag, all you have to do is take off the Thordsen stock and put on a grip and a Magpul ACS. Easy peasy.

        • I’ll never buy a gender-confused NY AR. I just can’t bring myself to do it. Here’s hoping we see more rulings that chip away at mag limits, scary feature bans, etc… Makes it harder for NY to keep its anti-gun regime going, or so I’d like to believe in my more optimistic moments.

        • However messed up NY AR’s may get the design does lend itself to finding it’s way back to normal easily enough.

  4. While I welcome the decision, I don’t expect to see LCM’s sold in California any time soon.

    The stay against enforcement of the injunction continues until the mandate (the official instructions from the Court) issues. The mandate won’t issue until there has been a ruling on the all-but-certain motion for en banc rehearing. And as the Hawaii open carry case demonstrates, CTA9 is perfectly willing to sit on such requests for, quite literally, years.

    • Whoa, the ninth ‘circus’ actually admitted ‘strict scrutiny’ applies?

      Could the be a result of the court packing Pres. Trump has been doing for the past 3 years?

      Does it make packing the lawsuit pipeline with cases may pay off?

      I found it interesting the court specifically mentioned LCMs are “in common use’ and therefore protected. That could come in handy for defeating semi-auto bans in the future…

      • Asking for a friend. I don’t understand strict scrutiny. Is this a made up concept? Is it only for the bill of rights? Is it only applies to the 2A in the bill of rights?

        • An actual lawyer can explain it better, here is what these folks say it is :

          https://www.law.cornell.edu/wex/strict_scrutiny

          “Strict scrutiny is a form of judicial review that courts use to determine the constitutionality of certain laws. Strict scrutiny is often used by courts when a plaintiff sues the government for discrimination. To pass strict scrutiny, the legislature must have passed the law to further a “compelling governmental interest,” and must have narrowly tailored the law to achieve that interest.

          Strict scrutiny is the highest standard of review which a court will use to evaluate the constitutionality of governmental discrimination. The other two standards are intermediate scrutiny and rational basis review.”

          The big deal is, Leftists courts have argued the 2A only deserves intermediate scrutiny or rational basis review. That’s how they have argued that it’s perfectly rational (to them) to deny you the right to carry a gun concealed, simply because “it’s too dangerous”.

          It’s a big deal for the 2A because it leaves the court little wiggle-room to deny you your 2A rights.

          And that’s they way it should be!

          TTAG has several lawyers that can clarify that, or tell me I’m full of it… 😉

        • You really need to do an internet search for “strict scrutiny”. I’m not really trying to be a wiseass here, but you need to understand the term to make sense of many court rulings. Strict scrutiny applies to virtually ALL laws that have the potential to curtail civil rights. In a nutshell, if government finds it absolutely necessary to curtail some right, they must tailor the law as narrowly as possible to achieve the goal of the law, while infringing on civil rights as little as possible. So, you can be convicted of a crime for shouting “FIRE” in a crowded theater, but you cannot be convicted simply for uttering the word “fire” in conversation. IANAL but IMO, all laws should be subject to strict scrutiny. And, no, strict scrutiny is not just a 9th district thing – it is commonly used at the Supreme Court level.

        • The court criminals devised something called “balancing”. The theory is that individual rights must be balanced against “legitimate” government interests (called “compelling interests”). There is nothing in the constitution, nor the writings of the founders that indicate the central committee government has interests, beyond those delegated, as equal, or superior to individual rights.

          Starting with the idea of “balancing”, it follows that there must be “tests” that can determine how to “balance” individual rights and government power. Thus, the fiction of “levels of scrutiny” was fabricated to allow courts to correct the national legislature. A spin-off theory is that as a result of the requirement to “balance” rights and powers, some enumerated individual rights are of greater, or lesser, status.

          The really scary part of the current ruling is captured by the words: “Third, the panel held that LCM prohibitions are not longstanding regulations and do not enjoy a presumption of lawfulness. Fourth, the panel held that there was no persuasive historical evidence in the record showing LCM possession fell outside the ambit of Second Amendment protection.”

          The words indicate clearly that the courts (and some members of SCOTUS agree) see “tradition and history”, no matter how unconstitutional, as controlling precedent in determining constitutionality of government action. It is crass circular reasoning.

        • “Longstanding prohibitions” comes from the Heller decision, as does “dangerous and unusual.” They’re pointing out the acceptable infringements in Heller and showing that they don’t apply to the CA ban.

      • Well, they are certainly in common use. I don’t know of an AR-15 made that is issued with a magazine less than 30 rounds, unless it’s strictly for sale in one of the non- Constitutional observing states. For those of us who still live in America, the 30 round magazine is *the* standard size.

    • So what happens to all the Californians who are ordering standard mags from Brownells and Botach right now? Both companies have announced they are shipping to Cali.

      • Well . . . if the opinion is overturned en banc (which, given the constituency of CTA9, is probably more likely than not, unfortunately), then the sales records will be evidence of a ton of sales / purchases in violation of California law.

        And only a fool would think the California AG would not gleefully go after everyone on such a list. . . .

        • “…then the sales records will be evidence of a ton of sales / purchases in violation of California law.

          And only a fool would think the California AG would not gleefully go after everyone on such a list. . . .”

          Nearly all magazines have no manufacturing date stamped on them. And since California law exempted existing magazines, they cannot prove what magazines you own that are post-ban magazines.

          So it seems to non-lawyer me…

          • “they cannot prove what magazines you own that are post-ban magazines.”

            Thinking like a bureaucrat, if the sales records can be obtained (big IF), it would be easy to issue a demand to turn over the number of mags bought post ban. Or, maybe a warrant can be issued allowing a search for contraband, and given there is no way to “prove” which mags were bought when, confiscate (demand a turn-in) all of them.

            Thinking that a wide scoop up of mags would be illegal? Then go to court, and win….and then try to identify which of the confiscated mags were yours (and how many).

            These people are not stupid. They are bent on damaging legal gun owners in any way possible. They spend all their waking hours trying to subjugate you, while you are trying to just live your life and take care of day-to-day matters.

        • Replying to IHaz:

          To blithely claim that the California AG can’t do anything to out-of-state retailers who ship what California law deems contraband into the state is wishful thinking at best.

          If the out-of-state retailer is shipping contraband articles into California, in violation of California law, the California AG can certainly go after them. (For a criminal complaint, they would have to indict and then file an extradition request — extra hoops certainly, but doable. For civil actions, long arm jurisdiction and substituted service would apply and make it quite easy.)

          Obviously, i’m not defending California’s goofy laws, but until they are finally overturned to think you can just pretend they don’t exist or have no legal sanction is very unwise, to say the least.

      • Their shipments may be purposely delayed? Gun mag werehouse website says “we are aware of the situation in CA and are working on it”. I.e. since mag sales are our bread and butter we are going to wait for 100% green light from our legal consuel.

  5. Well the one gun segment that had stable prices during COVID/BLM mess is gonna succumb.
    Gunmagwarehouse is gonna be busy.

  7. Wow, CA magazine law struck down. Hopefully this will become a crisis for the anti’s when other state’s antigun magazine laws are considered in court. I know, it is a small victory but it is a step in the right direction.

  9. This will last until Becerra asks for an En Banc review. You know the Ninth Circus will rule for the state.

    • yep. en banc the court will adopt the lower standard of review offered by the dissent, which makes it easier for them to get the result they want, which is to allow the ban.

      then the USSC looks the other way again.

    • Were the judges behind this decision Trump appointees? I have heard that the Trump Admin did change out a number of federal judges. And good on him for doing so.

      • One Trump appointed Judge – Voted the law as unconstitutional
        One Bush Appointed Judge – Voted the law as unconstitutional
        One Clinton Appointed Judge – Voted the law as constitutional

  11. Like Chris Stapleton sings, “I wish I could say that I’ve never been here before….”.

  12. No firearm that is mass produced is an “unusual arm”. Regardless of capacity or action type or caliber, a firearm is a firearm is a firearm.

    The ownership and carrying of such are a natural right, enumerated in the US Constitution and infrigned to varying degrees most everywhere.

    It’s a positive sign out of a portion of the 9th Circuit judges, but it ain’t over.

    It will never be “over”.

    • “It’s a positive sign out of a portion of the 9th Circuit judges, BECAUSE OF THE COURT APPOINTMENTS MADE BY PRESIDENT DONALD J. TRUMP, but it ain’t over.”

      Fixed it for you. You who will not answer if the Democrats take the Senate, and do what they promise, no more Filibusterer and draconian gun control, how do you stop them without President Trump’s veto?

    • The “unusual” or “uncommon” qualities makes me wonder how civilian weapons will ever advance past late 19th century to mid 20th technology. We are still rocking our ARs and AKs, 1911s, MP5s, Sigs, etc, and even our “modern” plastic guns are not far removed from their WWI and WW2 forbears. It seems like any new and different technology would be labeled too dangerous for civilian use, and since it would be uncommon, it would remain out of reach.

  13. Yes HUGE WIN from the 9th Circuit in the Duncan CRPA lawsuit challenging the ban on importation and possession of magazines that can hold over 10 rounds! Congrats to CRPA, NRA, Chuck Michel and & Associates and all the plaintiffs who joined the case and thanks to President Trump for changing the make up of the court which is no longer the nutty 9th.

    “The panel affirmed the district court’s summary judgment in favor of plaintiffs challenging California Government Code § 31310, which bans possession of large-capacity magazines (“LCMs”) that hold more than ten rounds of ammunition; and held that the ban violated the Second Amendment.”

    Copy Decision Issued By Court
    https://michellawyers.com/wp-content/uploads/2020/08/2020-08-14-Opinion.pdf?fbclid=IwAR2CcZleOKPQ45z0zu5aRoaZUvT0WRjFP5W4tRMUEVAMukDCbyJJZb3HNVo

  14. This kind of begs the question how this will affect the rest of Californians AWBs given the arguments made against the state here. If the magazine are an integral part of the weapon and are not some unusual item when why would a pistol grip, a muzzle attachment, barrel shroud, or any other named component be so?

    • Different law, different challenge. If this ruling survives, it could be cited as precedent for an AWB challenge.

      • Oh of course. I know it’s a different lawsuit. But if this one holds and for the reasons stated in this case then it seems like it would indeed be a fairly easy to make case that the rest of the AWB rules are unconstitutional. Sadly we’ll have to probably take Califonia’s gun laws apart one case at a time. :/

  15. Let me get this straight, ‘We’re staying our ruling in case the government might decide in the future to appeal our ruling and ask for a stay until the appeal can be heard’?

    Shouldn’t the ruling stand until such time as the government of California requests and is granted a stay, rather than handing out a stay that hasn’t even been requested yet?

  17. Don’t worry, even if it survives en banc, the incredibly helpful scotus will without a doubt overturn it.

    • The reason SCOTUS has been avoiding 2nd Amendment cases is that neither side trusts John Roberts to vote their way. I expect them to let any 9th Circuit ruling stand.

      • Yes but by the time this gets to the full en banc hearing and decided on then makes it to the US supreme court Ruthie will be pushing up daisies. Hopefully Trump has her replaced with a reliable pro 2nd justice.

  18. There was a dissent….by Chief Judge Barbara Lynn of the…wait for it…Northern District of TEXAS.

        • “…Like somebody whose jurisdiction covers part of Texas ruling on California law…..”

          Agreed..our Republic was not set up by the founders so that States could interfere with the internal laws of another…yet here we are.

  19. FINALLY!!!!
    Well the AG might want an en banc review, but the court is split 50/50. The initial ruling and appeals both sided one way. There isn’t even a split there. Going on an en banc might put egg on his face. Of course if we thought that SCOTUS would take up the case, I would push for that as it would cause a huge upset.
    We need the safety roster tossed, and the AW ban tossed.

    • “Well the AG might want an en banc review, but the court is split 50/50.”

      It’s not going to cost them dearly for en banc, since the decision only applies to the 9th. Of course they will request en banc.

      The real question is if a judge will allow them to stay the ruling in the meantime, that could give California a few months or longer to stock up on hi-caps…

  22. It WILL go under en banc review. The ban WILL be put back on. And SCOTUS will NOT hear it.

    SCOTUS must be PISSED right now. A court that is more anti gun that the 9th circuit, hates guns, hates gun owners and had the same desire if the far left: the complete and total ban of all gun ownership with the mandated extermination of every single solitary United States citizen that possesses a firearm as well as there families and the mandated extermination of every single United States citizen that opposes the government exterminating every single gun owner up to and including the compete and total extermination of the entire population of the United States. They might have to show there true colors.

    • I’m glad you’re not a conspiracy theory nut or anything . . .

      The Supreme Court HAS decided in favor of the Second in recent years. I might believe there is a vast left wing conspiracy, but the current Supreme Court isn’t all in on that conspiracy. Ruth certainly is, but Kavanaugh isn’t.

  24. Just once I’d like to see a court note in its ruling how utterly illegal the state’s actions in Miller were (no choice of plea, no choice of attorney, judges that wrote the law, no defense at final supreme court trial), just to force the libtard judge it gets appealed to to put a defense of a show trial in its ruling.

  25. Perhaps the court discovered the Gun Control they have been catering to is rooted in racism and genocide. Gun Control Zealots have sugarcoated their racist and nazi based agenda for waaaay too long and it’s time for them and their marxist rot to go.

    TRUMP/PENCE 2020.

  26. “Thus, until a new order is issued, the above is the state of the law in the State of California. It is possible that Judge Benitez issues a new order and allows sales to re-commence, but it seems more likely that the status quo is maintained until the resolution of any en banc petition, sua sponte call for rehearing en banc, en banc proceedings, or perhaps even a petition for certiorari to the U.S. Supreme Court. Stay tuned and watch this page for updates!”

    “https://www.firearmspolicy.org/9th-circuit-holds-large-capacity-firearm-magazines-protected-2nd-amendment”

  27. California Magazine Ban Unconstitutional – Again. WHAT HAPPENS NEXT? Right now it is legal to own standard capacity magazines in California. Freedom Week Part Two is in full effect. However, the next step is that California will request an en banc hearing. This means they will ask that the 9th Circuit rehear the case with a panel of 11 judges, instead of the original panel of 3. The results of that hearing will determine whether or not Californians can continue to purchase standard capacity magazines. But, at least until a court issues an injunction, Californians are a little freer.

  28. The en banc decision from the 9th will go 180 and who knows when or if the SCOTUS will grant certiorari following that. In any case, it will be years before a decision comes down. Just another commie delay tactic! If y’all were really serious, you’d file Title 18, Sec. 242 charges in Federal Court against Becerra and Newsome. See how they like the threat of 1 to 10 in Leavenworth.

  30. This is why I voted for Trump. In another four years, when he is gone from office, the effect of his judicial appointments will be felt for another three decades. RBG can’t hold out for four years. She is going out even if it is feet first in the next couple of years, and Breyer is likely to follow since he turns 82 tomorrow.

  31. HELL YEAH.

    I’m going to UT next week to see some friends and family. Now I’ll bring back some new toys. And take the two 30 round mags left with my brother home with me!

    YEAH!!!!

  34. ok, I have a question about Cali law.

    Would the Keltec SU-16 platforms be illegal?

    just curious.

  35. Something that I have not seen mentioned yet in all of the comments and articles about this ruling, is the position of the single dissenting judge.

    I bring it up, because it is critically important.

    Judge Lynn AGREED with the majority that the law was unconstitutional and was a significant infringement on the right to keep and bear arms. They says this, paraphrased, several times in their dissent.

    Their disagreement was on the application of strict scrutiny to the case.

    So, we have a circuit court judge that believes the law is unconstitutional but should be allowed to stand, because it is NOT ENOUGH OF AN INFRINGEMENT to justify an appeals court overturn it.

    I am not an attorney, but I would really like to hear TTAG’s resident analysts take on Lynn’s dissent.

  36. Maniac why do sum states concentrate on taking our heritage from All of. Us who choose a life more like our forefathers b4. Us , it only makes sense for myself to be more like our. Ancestors and share a dying way of life with. Our offspring in order for them to have the choice that the good Lord would want all proud. God fearing white men to experience or least to be allowed the right to choose for themselves!!! 😈😇😈 commiefornia isnt home for me anymore moving to. Arizona on monday

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