From Legal at CPRA
ANSWERS TO FAQ
ABOUT THE NINTH CIRCUIT’S DECISION IN
DUNCAN V. BECERRA “LARGE CAPACITY” MAGAZINE CASE
On August 14, 2020, a three-judge panel of the Ninth Circuit issued its opinion in the CRPA and NRA supported lawsuit Duncan v. Becerra. This historic decision strikes down California’s statewide prohibitions on magazines capable of holding more than 10 rounds as unconstitutional. In doing so, the Ninth Circuit upheld the 2019 decision from the United States District Court in San Diego that resulted in hundreds of thousands—if not millions—of magazines being lawfully purchased by California gun owners during what has become known as “Freedom Week.”.
Naturally, many gun owners have questions regarding the impact of the most recent ruling in Duncan, and its effects on gun owners and those who want to sell, buy, or possess magazines that can hold over ten rounds.
To answer the many question that CRPA has been receiving, we have prepared the following list of commonly asked questions with answers to assist our members and gun owners.
1. What did the Ninth Circuit three-judge panel hold?
The Ninth Circuit held that the entirety of California Penal Code section 32310—which bans the possession, manufacture, importation, sale, transfer, and receipt of magazines capable of holding more than 10 rounds (so-called “large capacity” magazines)—is unconstitutional under the Second Amendment. The ruling affirms the 2019 order of the Honorable Judge Roger Benitez of the United States District Court for the Southern District of California.
You can read the entire Ninth Circuit opinion here. There is a very concise and clear summary t the beginning of the opinion.
2. What does it mean that the Ninth Circuit applied strict scrutiny in this case?
When courts review constitutional challenges to government action, they can apply one of various levels of review. Three of the most commonly levels of review, called levels of “scrutiny,” are rational basis, intermediate scrutiny, and strict scrutiny. Whether a law will be upheld as constitutional can depend heavily on which level of scrutiny is applied to evaluate the constitutionality of a law.
“Rational basis” is the most deferential to the government. It merely asks whether the challenged law is rationally related to a legitimate government purpose. Laws subject to rational basis review are almost always upheld as constitutional. What’s more, the challenger (not the state) bears the burden to prove the law does not satisfy rational basis.
“Intermediate scrutiny” requires that the challenged law further an important government interest by means that are substantially related to that interest. As explained below, intermediate scrutiny is, when applied correctly, a stricter test that requires the government to justify its infringement on protected conduct. Unfortunately, in the Second Amendment context courts have often manipulated the intermediate scrutiny test to heavily favor the government, finding that just about any gun law will survive it this level of scrutiny and be deemed constitutional.
“Strict scrutiny,” however, requires the government to show that the challenged law is necessary to a compelling state interest; that it is narrowly tailored to that end; and that it uses the “least restrictive means” necessary to achieve it. When strict scrutiny is applied, the law is almost always found unconstitutional.
What makes the Duncan ruling so important is that it marks one of the few times strict scrutiny has been explicitly applied in a Second Amendment case. While CRPA is thrilled that this decision struck the ban on magazines over 10 rounds, the court’s application of strict scrutiny is also great news for current and future Second Amendment cases in California. This precedent will no doubt help CRPA in its challenges to numerous other infringements the state has imposed on the right to bear arms.
3. What did the Ninth Circuit say about the use of intermediate scrutiny?
Since the Heller and McDonald decisions, CRPA has been disappointed to see courts apply intermediate scrutiny in name only. Courts conduct what are effectively rational basis analysis and flout the Supreme Court’s holding that the Second Amendment protects a fundamental right. While strict scrutiny is certainly the appropriate test, CRPA has long believed that most of California’s gun rights restrictions would not survive even intermediate scrutiny if a fair intermediate scrutiny analysis was applied in good faith. Unfortunately, so far intermediate scrutiny in gun law cases has mostly been a toothless standard.
Today, the Ninth Circuit finally gave us the fair analysis we’ve been waiting for. While the panel found that strict scrutiny applies, it also conducted a review of California’s magazine ban under intermediate scrutiny and found that it would not survive that more permissive standard either. According to the court, the statute was simply not a reasonable fit to the important public safety interests that it was enacted to serve. As the court writes, “[w]hile the precise contours of intermediate scrutiny may vary, this much is certain: It has bite. It is a demanding test.” And, in what appears to be a clear criticism of the bad-faith review of other circuits, the court states that “intermediate scrutiny cannot approximate the deference of rational basis review.”
CRPA is pleased to see that, at least to some judges, intermediate scrutiny still has some teeth. And we are confident that this precedent will help us in future Second Amendment challenges whenever the court decides that intermediate scrutiny must be applied instead of strict scrutiny.
4. Does this mean that it is now lawful to own or possess magazines over 10 rounds in
California?
YES! And that has always been the case. When California banned the manufacture, importation, and sale of magazines over 10 rounds in 2000,1 and when it banned the purchase and receipt of such magazines in
2013,2 the state did not then bar the possession of such magazines obtained before the acquisition and
manufacture bans took effect. In other words, the state “grandfathered” these magazines.
California voters approved Proposition 63 in 2016, making possession of magazines over 10 rounds a potential misdemeanor offense. But on June 29, 2017, before Prop 63’s possession ban took effect, the Honorable Judge Roger Benitez issued a preliminary injunction in Duncan barring enforcement of the
1 See Act of July 19, 1999, ch. 129, 1999 Cal Stat. §§ 3, 3.5 (codified as amended at Cal. Penal Code § 12020(a)(2) (2000)) (superseded by Deadly Weapons Recodification Act of 2010, ch. 711, 2010 Cal. Stat. § 6 (codified at Cal. Penal Code §
32310)); see also Cal. Penal Code § 16740 (defining what constitutes a so-called “large capacity” magazine).
2 See 2013 Cal. Stat. 5299, § 1 (amending Cal. Penal Code § 32310(a)).
law.3 That preliminary injunction was upheld by a three-judge panel of the Ninth Circuit in 2018 and remains in effect to this day.4
It is also lawful to possess are all those magazines over 10 rounds purchased during “Freedom Week.” Recall, when Judge Benitez granted summary judgment in the Duncan plaintiffs’ favor, he immediately halted enforcement of the acquisition ban.5 This resulted in the lawful purchase of countless magazines over 10 rounds in California. A week later, Judge Benitez paused the importation and transfer of these magazines pending appeal, but he also held that enforcement of the possession ban remained enjoined, ensuring that Californians could retain possession of those magazines acquired during “Freedom Week.”6
But be careful, not all police officers understand what happened. Consider keeping your paperwork showing the period when you bought the magazine handy.
* * * *
If you are arrested or charged with possession of a “large capacity” magazine under the enjoined Penal Code section 32310(c) and (d), we urge you to contact CRPA attorneys by emailing
helpdesk@michellawyers.com or by calling (562) 216-4444.
* * * *
5. Can I start buying or selling magazines over 10 rounds in California today?
NO! The Ninth Circuit panel opinion may not have immediately ended enforcement of the statewide ban on the manufacture, importation, sale, transfer, or receipt of magazines over 10 rounds (“the acquisition ban”). While it is clear from the Duncan opinion that the law is unconstitutional, it is unclear whether the Ninth Circuit panel’s decision alone satisfied Judge Benitez’s 2019 order staying the injunction halting enforcement of the acquisition ban.
Without an active injunction against enforcement of the law, it is the DOJ’s express position that the state’s ban “on the acquisition of new large-capacity ammunition magazines [remains] in effect pending further appellate proceedings.” (You can read the DOJ’s published position below.) This suggests that the state will continue to enforce the law, exposing sellers and buyers to a risk of criminal liability.
According to the terms of Judge Benitez’s 2019 stay order, it remains in effect “pending final resolution” of the Duncan appeal. This may be open to various reasonable interpretations, but at this point the safest interpretation is that the stay will remain in effect until the Ninth Circuit issues its “mandate,” which signifies that the appeal is final and returns the case to the district court for final proceedings.7
3 Order Granting Preliminary Injunction, Duncan v. Becerra, No. 17-cv-01017 (S.D. Cal. June 29, 2017), ECF. No. 28, available at
https://michellawyers.com/wp-content/up ... eliminary- Injunction.pdf.
4 Duncan v. Becerra, 742 Fed. Appx. 218 (9th Cir. 2018) (memorandum opinion affirming preliminary injunction order available at
https://michellawyers.com/wp-content/up ... irming.pdf).
5 Judgment in a Civil Case, Duncan v. Becerra, No. 17-cv-01017 (S.D. Cal. Mar. 29, 2019), ECF No. 88, available at
https://michellawyers.com/wp-content/up ... fs-MSJ.pdf.
6 Order Staying in Part Judgment Pending Appeal at 1, Duncan v. Becerra, No. 17-cv-01017 (S.D. Cal. April 4, 2019), ECF No. 97, available at
https://michellawyers.com/wp-content/up ... -Judgment- Pending-Appeal.pdf.
7 There is a possibility that Judge Benitez might choose to lift the 2019 stay order at some other time. If that happens, we will inform our members and the public promptly.
