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By Don Thompson, AP

The Ninth U.S. Circuit Court of Appeals overturned two lower court judges and upheld California’s ban on high-capacity magazines Tuesday in a split decision that may be headed for the U.S. Supreme Court.

“The statute outlaws no weapon, but only limits the size of the magazine that may be used with firearms,” the judges ruled in the 7-4 decision.

The majority reasoned that “the record demonstrates that the limitation interferes only minimally with the core right of self-defense, as there is no evidence that anyone ever has been unable to defend his or her home and family due to the lack of a large-capacity magazine; and … that the limitation saves lives.”

The en banc panel of the San Francisco-based court acted after two of three judges on a smaller Ninth Circuit panel last year ruled that the state’s ban on magazines holding more than 10 bullets violates the U.S. Constitution’s protection of the right to bear firearms.

Gun owners rights groups have been trying to get firearms cases before a more conservative U.S. Supreme Court and immediately promised to seek the high court’s review.

Seven judges on the 11-member Ninth Circuit panel were appointed by Democratic presidents, but the nation’s high court tilted to the right under with appointees by former President Donald Trump.

The three-judge panel had backed a 2017 ruling by San Diego-based U.S. District Judge Roger Benitez that declared unconstitutional a state law that since 2000 had prohibited buying or selling such magazines. That law barred new sales or imports but let those who had the magazines before then keep them.

The lower court ruling also barred the state from enforcing a voter-approved law that would have barred gun owners from possessing magazines holding more than 10 bullets.

Aside from the effect on high-capacity magazine laws in California and other states, the ruling helps to unjam a roadblock in other pending cases over the state’s ban on “assault weapons.”

Everytown for Gun Safety, a leading gun control group, said state officials’ appeal of Benitez’s ruling this year throwing out California’s assault weapon restrictions was on hold while the Ninth Circuit considered the ban on high-capacity magazines.

The “assault weapons” ruling is also on hold while the appeals court considers the same issues in a different case, where a different federal judge upheld the state’s ban in 2018.

Aside from the merits of each case, the appeals court is weighing the legal standard that courts must consider in Second Amendment cases. Gun owners groups are hopeful that the recently more conservative U.S. Supreme Court will change the legal tests in their favor.

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65 COMMENTS

  1. Instituting a requirement that you must pass an IQ test with a score of at least 50 will eliminate libtards from voting which will eliminate libtard politicians, which will eliminate libtard judges.

    • Except that now the Ninth has made it the law of the land for all States within the Circuit.

      So…the law is ruled as unconstitutional once, twice, and three times, but suddenly the fourth time when we get the opposite ruling is the one everyone is going to follow? SCOTUS here we come.

      • Alright, I’m not a lawyer, but I think you are mistaken. The Ninth hasn’t made the magazine ban the law of the land in all states under their jurisdiction – they have merely UPHELD the unconstitutional law in CALIFORNIA. Which only clears the way for other states to pass similar laws. For such laws to become law in any other state, that state’s legislature must first PASS such a law.

        Any and all other states may choose to pass, or not to pass, such restrictive laws.

        Alternative opinions are more than welcome – especially from lawyers.

        • Actually, Paul, I see you’re correct. I was going off of commentary from another (non-TTAG) source and had assumed (yes, I know…) this article above was basically the same content, so I only read 50% of it.

          Lesson learned. It appears that your assessment is correct, and my comment above was not.

      • read the article again. It does no such thing.
        The COurt has decided that California’s ban is not “unconstitutional”andthus can stand. It goesnowehere near mandating the oterh states ni that Distict imposesuch bans.. but it would mkost likelu mean that IF other states imposed such bans, on identical bases, thoise woiuld be enforceable. Now it remains wiht the citizens of those sttes to prevent their overlords imposing such bans.

  3. CORRECTION: Instituting a requirement that you must pass an IQ test with a score of at least 50 IN ORDER TO VOTE will eliminate libtards from voting which will eliminate libtard politicians, which will eliminate libtard judges.

      • As H.L. Mencken famously said “Democracy is the theory that the common people know what they want, and deserve to get it good and hard.”

        California voters voted for this nonsense, and continue to support it. Who a I to stand in the way of them getting what they voted for . . . good and hard??

      • Sieg Heil your Gun Controlling honor…Let’s see…If 3 armed intruders sporting 6 shooters invade your muti million dollar home do you think you being limited to a 10 round magazine is going to cut it during all the excitement? Yes or No.

        The black robe BS logic concludes with limiting certain firearm capability only minimally effects the 2A. Like saying Jim Crow Gun Control only minimally effected the 2A for those who were non white.

        • The criminals, being criminals, certainly aren’t going to obey any such laws. They may be carrying 30, or 60, or 120 round magazines. And, they may be carrying 3 or more such magazines, each. That might give them 1000 rounds, vs your paltry 10 rounds.

          Preposterous!

        • @Paul
          No but when the gangbangers with a hi cap mag get caught for murdering people then can make it more badder because they had more boolits

        • possum, Do you really think that gangbangers are going to pay any attention to the “hi cap mag ban?” This “hi cap ban” is kinda like locking the barn after the cow already go out?

        • @Paul again.
          Absolutely not gangbangers are going to do what they do, they’d role belt feds if they could find them.
          My comment was sarcasm.
          A hicapacty magazine one more charge added to a life sentence.
          More badder :>)

  6. “the record demonstrates that the limitation interferes only minimally with the core right of self-defense, as there is no evidence that anyone ever has been unable to defend his or her home and family due to the lack of a large-capacity magazine; and … that the limitation saves lives.”

    That’s a kinda bogus reasoning, requiring a negative be proved before one can exercise a constitutional right in the manner they see fit or necessary. Yeah, this is going to SCOTUS.

    Ok, everyone switch to using only 30 round or larger magazines for self/home defense and empty the whole thing at the bad guy.

    • Public interest over individual liberty, what is any evidence was presented to show it saves lives to limit mag size? Or that having a limit only causes minimal interference? Why not one round, or 11?

      The 9th being the 9th as usual. Apparently the state only cares about what happens after the 10th shot, those first ones are acceptable freebies. They should change the definition of a California mass shooting as one in which more than 10 rounds was fired.

    • “as there is no evidence that anyone ever has been unable to defend his or her home and family due to the lack of a large-capacity magazine”.

      Seems to me that if there is a single incident, anywhere, where more than 10 rounds were required, by anyone, ever, it would negate their argument. Seem to recall multiple police involved shootings where over 30 rounds were fired.

      Also, imagine if Kyle had a 10 round magazine. He fired 8 rounds at 4 targets. Had anyone else in the mob attacked him, he would not have been able to defend himself.

      Too bad the only court that can be appealed to is SCOTUS. So maybe in 4 years…

        • Haz,

          As usual, you are correct. Benitez did, indeed, list several instances . . . and we all know there are more out there.

          I commend Judge Benitez’ entire ruling (on both this and on the “assault weapon” ban) to everyone’s attention. How you could read those and NOT understand how bomfozzlingly stupid KKKalifornia’s insane “gun control” laws are is a surprise – until you admit the obvious, that anti-gun, anti-rights, anti-common sense bigots are unable to process actual facts.

        • 4 at Rosenbaum
          2 at Jump Kick Man
          1 at Huber
          1 at Grosskreutz
          TFred – You’ve read wrong.

  9. So a typical AR15 magazine that holds 30 rounds of .223/5.56 ammo can hold 9 rounds of 458 SOCOM. The law doesn’t say what caliber of round the magazine has to hold…

    • Just make sure it says 458 socom on the side. Though mag size is hardly the only issue your gun will face in California. That AR will need to be thoroughly neutered to be allowed.

      • I don’t know about that. My neutered cal legal ar shoots real bullets and has no mag lick either, just ten round mags.

        • So this begs the obvious question…what about all the mags we bought during “Freedom Week”, and all the pre-ban mags that were allowed to come out of storage and have been seeing the sunshine ever since then? Is Judge Benitez’ injunction on the possession of all the mags floating around within this state removed, and the ban fully restored?

      • ” Just make sure it says 458 socom on the side ”

        Hell, you can fix that with a Sharpie and a steady hand.

  11. Well, the 9th has only fucked those living in those states. So, guess what is coming next year. I hope that SCOTUS does take this case soon.

  12. Common sense is less common than it used to be. 7 Judges relied on feelings and emotions, not the spirit of the Right recognized by our Founders.

  14. Decision applied intermediate scrutiny to uphold the law (surprise). That was, of course, the same approach the Second Circuit applied to uphold the NY laws currently under consideration in the NYSR&PA case.

    Ergo, when SCOTUS nukes the NY law next year (my over/under line for when is April 15), I expect a cert petition on this case to be summarily granted and the case remanded for reconsideration based on the law articulated in the new opinion (along with a raft of other pending 2A cases).

    • “Ergo, when SCOTUS nukes the NY law next year (my over/under line for when is April 15),…”

      Why April 15?

      Aren’t the biggest cases usually announced on the way out for summer break in June?

      • Sometimes; sometimes not. NYSR&PA was argued fairly early in the term, so I anticipate that opinion will be issued well before the end of term rush. (Recall that NYSR&PA#1 was argued in early December 2019, and the opinion was issued in April 2020.)

        I’ve also now had the chance to read the long concurring opinion that tries to argue why the Text, History, and Tradition Test is wrong / faulty. After reading this, I am now firmly convinced that the majority is largely barking at the moon, as it is pretty clear that SCOTUS will endorse some version of THT in the NYSR&PA opinion. In other words, they know very well that they are about to have the rug pulled out from under them, and so this is their last hurrah.

        If anything, this opinion just gives fuel to the Thomas position that lower courts like the Ninth are deliberately continuing to play games with Heller and the Second Amendment, and thus must be given some firm guidance.

    • En banc is a panel of 11. The Circuit’s Chief Justices plus a “random” (chuckle, snort) selection of 10 from the remaining 28.

  16. “can’t prove people were unable to defend themselves due to not enough bullets in a magazine. But this does prove to save lives.”
    WHERE IS THAT DATA?!?? YOU CAN’T PROVE IT SAVES LIVES EITHER! How is this a viable defense?

    • The 9th circuit is saying, until people start dying due to a lack of magazine capacity we are going to leave the 10 round max in place. What a bunch of losers…………the 9th circuit!

      • Plus (for them), a person who dies due to lack of capacity will leave nobody with standing to challenge the law.

  17. The 9th can pound sand. Just another ruling that only effects the good guys. These judges need to get out of the MS-13 pocket.

  19. As long as LE, military, secret service, private security, etc. have 10 round limits as well. That’s the only way it works. It’s called equality. Yes, they despise it.

  20. I figured the en banc would sway the other way. The fact that the court is fractured at this point is a good indicator that we could see this go to the supreme court.

  21. Only stupid politicians believe that people will get rid of their 11+ round magazines, the even dumber ones believe people will turn them over to the cops.

  23. ROFLMAOBT! That is a surprise. It seems that there is this appellate court called the Supreme Court. The 9th Circuit is notoriously wrong most of the time. They have been overturned more than any 3 other Circuits put together.

  25. The 2nd Amendment isn’t about home defense. It’s about protecting a free people from tyranny, and I’m guessing it’s gonna take more than 10 rounds to do so. This is where the debate needs to focus.

  26. You dont need, you dont need, you dont need, you dont need, you dont need, you dont need, you don’t need, you dont need ,you dont need, you dont need, you dont need, you dont need, you dont need, you dont need, you dont need, you dont need, you dont need, you dont need, you dont need, you dont need, you dont need, you dont need, you dont need, you dont need, you dont need, you dont need, you dont need, you dont need, you dont need.
    Wants and needs, government knows best.
    .
    .
    Let’s go Brandon

  27. ““The statute outlaws no weapon, but only limits the size of the magazine that may be used with firearms,” the judges ruled in the 7-4 decision.

    The majority reasoned that “the record demonstrates that the limitation interferes only minimally with the core right of self-defense…””

    One of the many obvious flaws in this opinion: by artificially requiring a reduced-capacity magazine, for those few seconds that it takes to reload, a law-abiding citizen, using said firearm for the lawful purpose of self-defense, is literally dispossessed of a functioning firearm.

    The fact that the majority opinion contends that the duration of time that the citizen is disarmed by the law is “minimal” is irrelevant. One either has a functioning firearm, or one does not. This law absolutely takes that functioning firearm away from the citizen, depriving them of their fundamental right to defend their own life against a violent attacker.

    • And here’s the part that drives logical thinkers crazy: The entire point of requiring the use of a reduced capacity magazine is to cause a criminal attacker to have to pause to reload, presumably giving nearby victims (there certainly will be no police officers on scene yet) a chance to … what, throw a rock and stop them from continuing their attack? But that exact same requirement MUST ALSO put a law-abiding citizen at that SAME DISADVANTAGE, if they find themselves under attack by a violent criminal, who, as we all know will NOT BE obeying the law, and will NOT be using a reduced-capacity magazine.

  28. Maybe this is why the Supreme Court was holding case 20-1507 (NJ ban on mags over 10)???

    Either way all they have to do now is accept and over rule this unconstitutional decision. The lower courts that ignore rules are no longer the end all be all now that the balance of power has change in the greatest court in our land 😀

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