On Tuesday, November 30, the United States Court of Appeals for the Ninth Circuit reinstated California’s ban on ammunition magazines with the capacity to hold over ten rounds. An en-banc panel heard the case with five judges, and the vote to reinstate was 3-2, tracking with the political party of judicial appointments. Californians will now have to send nonconforming magazines out of state, modify them to accept no more than ten rounds, or become outlaws. That is, unless, as one of the judges on the appeals court practically begged, the Supreme Court requires the circuits to respect the Second Amendment, once and for all.
Gunmaggeddon Mag Ban
California law calls magazines that hold more than ten cartridges “Large Capacity Magazines,” or LCM’s, and enacted a law banning them in 2016. Unlike many state and even federal bans of such magazines, this law differed because it didn’t grandfather existing owners. If you owned one, you needed to get rid of it or be a criminal. It was part of a package of laws signed by then-Governor Jerry Brown dubbed gunmaggeddon; Golden State gun rights advocates quickly challenged it, successfully until now.
District Court Judge Roger T. Benitez, a George W. Bush appointee, issued a preliminary injunction against the confiscation law in June of 2017. The Ninth Circuit upheld the preliminary injunction, and then, upon full hearing, Judge Benitez issued a permanent injunction against California enforcing the law in 2019. At the time, gun policy expert David Kopel wrote of Benitez’s work:
The 86-page opinion is the most thorough judicial analysis thus far of the magazine ban question. The opinion is founded on a careful analysis of the record, and thus provides an excellent basis for future appellate review on the merits, perhaps one day by the U.S. Supreme Court.
Perhaps Kopel’s prediction will come true now that the Appeals Court has overturned Judge Benitez’s ruling. The panel members appointed by Democrat Presidents Clinton and Obama voted to allow the state to ban the magazines in question. The two Trump appointees said the law violated the Second Amendment and voted to see it stricken. One of those, Judge Lawrence VanDyke, wrote a truly blistering dissent criticizing his own 9th Circuit Court of Appeals’ treatment of Second Amendment rights. He wrote:
[O]ur court’s Second Amendment jurisprudence can hardly be labeled angelic. Possessed maybe—by a single-minded focus on ensuring that any panel opinions actually enforcing the Second Amendment are quickly reversed. The majority of our court distrusts gun owners and thinks the Second Amendment is a vestigial organ of their living constitution. Those views drive this circuit’s caselaw ignoring the original meaning of the Second Amendment and fully exploiting the discretion inherent in the Supreme Court’s cases to make certain that no government regulation ever fails our laughably “heightened” Second Amendment scrutiny.
In uncharacteristically direct criticism of the highest court in the land, VanDyke writes what gun rights proponents have been screaming from the rooftops. “Until the Supreme Court requires us to implement a paradigm shift, the Second Amendment will remain a second-class right— especially here in the Ninth Circuit.” The Justices will soon get a chance to make just such a ruling when the plaintiffs appeal and petition for Supreme Court review.
Common, And In Everyday Use
For those without much knowledge of firearms; Magazines (sometimes called clips) with capacities over ten rounds are not a recent innovation. Nine-millimeter pistols, perhaps the most common pistol type, have been designed since the early 1900s with LCM’s, as California calls them, for instance. They’re about as common as cars with six-cylinder engines, hardly exotic or indicative of a desire for extreme performance. Gun rights opponents call them high-capacity magazines, while gun rights proponents often call them full-capacity magazines.
~ Read more from Scott D. Cosenza.
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