August 18, 2020
On Friday, August 14, 2020, the a three-judge panel from the United States Court of Appeals for the 9th Circuit released its opinion in Duncan vs. Becerra, a case that challenged California’s ban on magazines that hold more than 10 rounds. In what many considered a surprise ruling, the court declared that the ban violates the Second Amendment rights of Californians and should be struck down, granting summary judgment to Duncan. Legalese aside, it’s a big deal.
While individual rights such as those guaranteed by the 1st, 4th and 14th Amendments to the U.S. Constitution are the litigated frequently, there is a dearth of case law regarding the Second Amendment. For example, it was nearly 70 years after the Supreme Court handed-down its decision in United States V. Miller until it revisited the topic in District of Columbia vs. Heller.
Though Heller was a generational victory for the individual right to keep and bear arms, it has not been applied by the appellate courts in a way that has repealed individual gun or magazine bans — until now. The Duncan opinion, written by Trump-appointed Judge Kenneth Lee, lays out the two-prong test that the court used to come to their decision. This is basically universal in Constitutional law cases.
The first prong is whether the law in question “burdens conduct protected by the Second Amendment.” The court ruled that the California law did represent a burden, satisfying part the first prong. Additionally, the court ruled that “Large Capacity Magazines” (“LCM” in the court’s lingo) are “protected arms under the Second Amendment” because they are commonly owned and typically used for lawful purposes, and are not “unusual arms.” Finally, Lee’s opinion stated that the ban does not enjoy “a presumption of lawfulness.”
Though the first prong sounds great to the layperson, it is the second prong that gets lawyers excited. The second element of the test is what level of scrutiny to apply to the state law. In the past, what is called “intermediate scrutiny” has usually been applied to Second Amendment cases due to the compelling state interest of reducing gun violence. In this opinion, the court applied the “strict scrutiny” standard, which favors the rights of the individual over the desires of the government. Lee ruled that the law “struck at the core right of law-abiding citizens to self-defend” and, as a blanket ban, was not narrowly tailored to suit the state’s interests.
Second Amendment advocates have long lamented the fact that gun rights were never given the importance of free speech rights by the courts, this time they were. If the standard in Duncan is applied to every firearm and magazine ban across the U.S., the results would be a sweeping victory for individual rights. While this is an important first step, there are more hurdles in the way.
California Attorney General Xavier Becerra will no doubt challenge the court’s decision, which means it will go before a larger en banc review. An en banc panel is composed of the Chief Judge in the Circuit along with 10 other judges, chosen at random. The Chief Judge, Sidney Thomas, is a Clinton appointee who was part of the majority in the Peruta v. San Diego case that decided that the city’s restrictive gun control laws were constitutional. Other than Thomas, Republican-appointed judges slightly outnumber Democrat-appointed judges on the 9th Circuit bench. If we can assume that partisan leanings are indicative of the way that a judge will rule in this case, there is a slight advantage on the gun rights side of the ledger.
It is important to note that, while the court ruled in Duncan’s favor, the magazine ban remains in effect, at least for now. The National Shooting Sports Federation (NSSF), the firearm industry’s trade association, warned that "While the holding in Duncan is a tremendous victory for the Second Amendment, members of the industry should continue to refrain from selling or shipping into California LCMs until after the appeal proceeding is concluded or the stay is modified or lifted."
While the fight isn’t over, this was a crucially important first step in the fight to roll back unconstitutional restrictions on the Second Amendment. In light of the fact that we could see a Democrat president elected in November, as well as a majority in both houses of Congress, the courts may be our only recourse for defending our rights. The ruling in this case sets up a scenario where that is entirely possible.
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