Ninth Circuit Strikes Down California's Ban On High-Capacity Magazine By Michael Joseph on August 31, 2020

Our New York criminal defense attorneys who defend those charged with gun crimes, know that the liberal democratic states, such as New York and California have the most restrictive gun laws in the county, and seem intent to ignore the Second Amendmen. The Ninth Circuit, based in California, which is the most far-left and most frequently overruled federal appellate court in America, finally produced a decision that is in line with the Constitution, and the Second Amendment. 

Every gun arrest in the U.S., implicates fundamental rights under the Second Amendment. Presidents Trump and George W. Bush appointed the two judges who ruled against the ban and in favor of the Constitution. The dissenting judge, a district court judge sitting by assignment, is a Clinton appointee.

Not just for California, but for many citizens in Democrat-run states that are trying to use backdoor methods to undo the Second Amendment:

The Court’s lucid summary in Duncan v. Becerra is the best way to understand the decision:

California's near-categorical ban of LCMs [so-called "large-capacity magazines," which is to say magazines that can hold more than 10 rounds] strikes at the core of the Second Amendment—the right to armed self-defense. Armed self-defense is a fundamental right rooted in tradition and the text of the Second Amendment. Indeed, from pre-colonial times to today's post-modern era, the right to defend hearth and home has remained paramount.

California's law imposes a substantial burden on this right to self-defense. The ban makes it criminal for Californians to own magazines that come standard in Glocks, Berettas, and other handguns that are staples of self-defense. Its scope is so sweeping that half of all magazines in America are now unlawful to own in California. Even law-abiding citizens, regardless of their training and track record, must alter or turn over to the state any LCMs that they may have legally owned for years—or face up to a year in jail.

The state of California has latitude in enacting laws to curb the scourge of gun violence, and has done so by imposing waiting periods and many other limitations. But the Second Amendment limits the state's ability to second-guess a citizen's choice of arms if it imposes a substantial burden on her right to self-defense.

Many Californians may find solace in the security of a handgun equipped with an LCM: those who live in rural areas where the local sheriff may be miles away, law-abiding citizens trapped in high-crime areas, communities that distrust or depend less on law enforcement, and many more who rely on their firearms to protect themselves and their families. California's almost-blanket ban on LCMs goes too far in substantially burdening the people's right to self-defense. We affirm the district court's summary judgment, and hold that California Penal Code section 32310's ban on LCMs runs afoul of the Second Amendment.

The decision reflects the intersection of law and reality. That is, the judges in the majority understand the practical implications of larger magazine capacities. They know -- as Americans are learning from police body cams -- that a single bullet, or even two or three bullets, might not stop an attacker. (See, here and here, for example.) The person shooting may miss, or the attacker may be so hopped up on drugs or be so mentally ill that it takes a barrage of bullets to stop him.

The decision affirmed U.S. District Judge Roger Benitez’s decision last year granting summary judgment in favor of Virginia Duncan and the California Pistol & Rifle Association.  Lee was joined by U.S. Circuit Judge Consuelo Callahan but a dissent was written by U.S. District Judge Barbara Lynn, sitting by designation from the Northern District of Texas.  In a 66-page order, U.S. Circuit Judge Kenneth Lee found Proposition 63 “struck at the core right of law-abiding citizens to self-defend by banning LCM [large-capacity magazine] possession within the home.”  The panel also noted that the law might have satisfied its review with a few basic accommodations like a grandfather clause for those who already owned high-capacity magazines or carve-outs for certain areas.

The loser in these fights remains the voters who were sold a bill of goods by politicians who proclaimed that they were going to “stop the carnage” by passing a series of gun control measures that offered more political than practical benefits. As noted in the earlier columns, politicians were fast to ride the wave of anger and frustration but were not willing to admit that the range of permissible limits is quite limited after Heller. Instead, they oversold laws banning things like “bump stocks” as major new reforms.  The media played into this false narrative in unquestionably covering the campaign for gun control with little acknowledgement of the marginal impact of such measures even if they could pass the high standard of review.

Indeed, one of the more interesting aspects of the opinion is found in a footnote. Footnote 8 states that the new law is based on a false factual narrative that these magazines are the cause or substantial contributor to gun deaths: “8 Dangerousness is a more difficult question because weapons are necessarily dangerous. The “very attributes that make handguns particularly useful for self-defense are also what make them particularly dangerous.”

The point is that the vast majority of owners of LCMs are clearly using them for lawful purposes and it is not demonstrated that the magazines are a meaningful contributor to deaths from violent crime. This is an example of the unsatisfied burden for gun control advocates. They cannot pass these laws on soundbites and assumptions. They have to create a factual foundation for particular limits and why they are needed to achieve the reduction of criminality or fatalities. Instead, leading politicians just treated such reforms as self-evident and substantial limitations on gun violence. Now years later, as the outrage has subsided, the law has collapsed by its own weight.

For all of the passions expressed after the horrific shootings, little effort was made to properly craft or support this new law. Even if it were sustained it would not likely have made a material difference in the actual fatalities from these crimes. Yet, politicians effectively cashed out on the wave of public emotion by citing these marginal measures as bold and impactful forms of gun control.  That may be the real crime.


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The Law Office of Michael H. Joseph, PLLC

Law Office of Michael H. Joseph, PLLC

The Law Office of Michael H. Joseph, PLLC, has been helping injured victims recover compensation for their injuries for over a decade. Our attorneys are members of several prestigious organizations, including: 

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