Saying ammunition magazines essential to the firing of a broad range of firearms are no different than boxes of ammunition, and therefore, not "arms" protected by the Second Amendment, a divided federal appeals panel has again upheld California's state law banning so-called "large capacity" magazines.
Dissenting judges, however, said the majority's decision "didn't just butcher the Second Amendment," but also gave "a judicial middle finger to the Supreme Court," while relying on "ignorance of both firearms operations and constitutional law."
On March 20, a full panel of 12 judges in the U.S. Ninth Circuit Court of Appeals said nothing in the Constitution should prevent California from issuing a full ban on firearm magazines which hold more than 10 rounds of ammunition.
U.S. Ninth Circuit Court of Appeals Susan Graber
| Fmuzzio, CC BY-SA 4.0 <https://creativecommons.org/licenses/by-sa/4.0>, via Wikimedia Commons
The ruling marks yet another time that the Ninth Circuit has waded into the fray over the fate of the California law.
And the ruling could perhaps at last allow the question to be directed to the U.S. Supreme Court for resolution.
The law has followed a long and winding path through California's federal courts.
Enacted in 2000 and amended in 2016, the law was challenged on the grounds that it violates the Second Amendment. The law was blocked by an injunction in 2017, where it remained in 2019, when the law was first declared unconstitutional.
That decision was initially upheld on appeal by a three-judge panel at the Ninth Circuit. Such smaller panels typically handle cases when they are first appealed.
However, that decision was then overturned by a so-called "en banc" 11-judge panel from the Ninth Circuit.
The U.S. Supreme Court then vacated the Ninth Circuit's ruling, and directed California federal judges to take another look at the case in light of the Supreme Court's most recent Second Amendment rights decision in the case known as New York State Rifle & Pistol Association v Bruen.
In that decision, together with the high court's ruling in an earlier case, District of Columbia v Heller, the Supreme Court created tests for states and courts to use when evaluating if such restrictions are constitutional. Those tests require courts and lawmakers to evaluate if the weapons being banned are both dangerous and unusual, and if the restrictions are in keeping with U.S. history and tradition dating back to the ratification of the Second Amendment in 1791 and the Fourteenth Amendment in 1868.
However, despite those rulings, federal courts in many parts of the country, notably including California, Illinois and Maryland, have upheld state laws banning so-called "assault weapons" and the so-called "large capacity magazines," holding more than 10 rounds.
Supporters of those laws, mostly Democrats, have asserted those bans are needed to address dangers posed by "mass shooters" wielding "weapons of war."
Opponents of the law, however, have claimed the laws are little more than authoritarian and unconstitutional tramplings of the Second Amendment's right to keep and bear arms.
In upholding the laws, however, a number of judges have taken the position that the weapons being banned under the law are not actually "arms" at all, and therefore, states are free to restrict or ban their possession and use without any concern for the Second Amendment.
In California, a federal judge in San Diego sided with challengers to the "large capacity magazine" ban, saying the magazine ban cannot be squared with the Second Amendment, as interpreted by the high court in Bruen.
The Ninth Circuit, however, immediately slapped a stay on that ruling. And, in an unusual move, the same 11-judge panel that handled the case the first time scooped it up again, saying they believed the lower court judge would be proved wrong.
That stay has remained in place ever since.
In the meantime, supporters and opponents of such gun and magazine ban laws are waiting on the Supreme Court to take up a case out of Maryland, which could ultimately decide whether "assault weapon" bans, like those in California and other Democrat-dominated states, can hold up under the Constitution.
However, the high court may yet also now take up the dispute over California's magazine ban law, as well, after the Ninth Circuit delivered a long-awaited decision on the merits of the case.
In the 7-4 ruling, the majority - led by Judge Susan Graber, an appointee of former President Bill Clinton, and joined by six other judges, all appointed by Clinton and former President Barack Obama - continued with liberal judges' practice of upholding bans on guns and a range of firearms accessories by simply declaring the prohibited weapons aren't "arms" under the Second Amendment.
In the magazine case, the liberal judges drew a distinction between "arms" and what they called "accoutrements," which they said included such items as scabbards for swords and boxes or belts used to hold ammunition for guns.
"A large capacity magazine is a box that, by itself, is harmless," Judge Graber wrote in the majority opinion. "... Without an accompanying firearm, a large-capacity magazine is benign, useless in combat for either offense or defense. Large-capacity magazines thus fall clearly within the category of accessores, or accoutrements, rather than arms."
The majority further asserted the law doesn't violate the Second Amendment because the weapons in which the banned magazines would be used can be fired while using magazines holding fewer rounds of ammunition.
In dissent, however, four judges - all of whom were appointed by President Donald Trump or former President George W. Bush - said the majority decision again all but defies the Supreme Court.
They noted the majority again engages in a practice known as "interest balancing," used by judges to decide whose "interests" should hold the most sway.
The dissenters noted the U.S. Supreme Court in Bruen should have been read to explicitly forbid such "interest balancing" when determining if a gun or firearm accessory ban can survive constitutional review.
In this case, the dissenters said the majority blatantly decided that, since they didn't consider the banned magazines to be constitutionally-protected "arms," therefore, the interests of the state of California in attempting to prevent mass shootings outweighs the constitutional rights of California residents to purchase and use "large-capacity magazines" for lawful purposes, such as self-defense or defense of their homes.
But the dissenting judges further blasted their colleagues for ignoring the role the magazines play in the functioning the firearms in which they are used, while at the same time forcing people to own and use only those weapons the state believes they should own.
"... We would never be parsimonious when it comes to other constitutional rights," wrote Judge Patrick Bumatay, in one dissent, joined by three other judges. "Imagine granting only what's strictly necessary to enjoying the free-speech or free-exercise right.
"No court would tolerate that. That's like saying that, as long as the government permits speech through print or the airwaves, it may ban speech on social media platforms because they're mere 'optional accessories' for spreading information.
"It's also like saying that the government can ban religious worship at home because it's not strictly 'necessary' when churches and synagogues are available."
Bumatay and his fellow dissenters noted the majority's decision leaves a wide door open for California and other states to effectively ban a wide range of firearms by simply further declaring other essential gun parts to be constitutionally unprotected "accoutrements," all but erasing Bruen.
In a separate dissent, Judge Lawrence Van Dyke said: "The majority's test produces head-scratching results. On one hand, the majority gives lip service to the fact that the 'meaning of Arms ... broadly includes nearly all weapons used for armed self-defense.'
"But on the other, its reasoning inevitably means that only the most dumbed-down or basic version of any component part of a gun is protected - and many parts of a gun are entirely unprotected if they aren't strictly necessary to make a gun go bang."
Van Dyke further blasted the panel's liberal majority, accusing them of essentially refusing to take into consideration the rights of people to defend themselves.
He noted the majority's position that banning magazines that hold more than 10 rounds could give people who are being attacked more opportunities to take cover and flee. But Van Dyke noted the magazine ban also deprives those same people of an enhanced opportunity to defend themselves, even against multiple assailants.
"Pauses in shooting don’t just mean a chance for victims to take cover. Pauses in shooting while trying to reload also mean a chance for victims to be overwhelmed by criminal assailants. It always works both ways," Van Dyke wrote.
"Yet the majority sees only a one-way street..."
Van Dyke's dissent was also notable for its unusual inclusion of a link to a video, posted by Van Dyke, in which the judge, while in his chambers and wearing his judicial robes, demonstrated on actual firearms how magazines actually work, and why they are not merely "boxes" to store ammunition.
The addition of the video drew sharp criticism from the court's liberals, who blasted Van Dyke for inserting himself into the proceedings inappropriately, essentially setting himself as an expert witness, commenting on facts not in evidence in the case.
In response, Van Dyke asserted his video dissent is little different from other court opinions which include photos or video elements.
But he said he believes the majority is most incensed that his video presented a visual rebuttal to the majority's claims that magazines aren't "arms" or anything more than storage compartments for bullets.
"Illustrating that conceptual shortcoming with the majority’s approach doesn’t necessarily require any factual 'expertise' about firearms," Van Dyke wrote. "It just requires a certain level of logical and analytical rigor combined with good judgment in not creating clearly inadministrable constitutional tests - precisely the type of legal expertise we expect in our jurists."