California’s ban on firearm magazines that hold more than ten rounds has been ruled unconstitutional. A three-judge panel for the usually left-tilting Ninth Circuit Court of Appeals tossed out the law. It did so in a ruling that celebrated the rights of all Americans, minorities especially, to keep and bear arms in their own defense. Judge Kenneth K. Lee wrote a rousing defense of self-defense rights as minority rights, as he laid the foundation for future rulings.
“Our country’s history has shown that communities of color have a particularly compelling interest in exercising their Second Amendment rights. The Second Amendment provides one last line of defense for people of color when the state cannot — or will not — step in to protect them. This remains true today across all communities of color.”
Full capacity, high capacity, standard capacity – a magazine by any other name still operates the same. A favorite target of the anti-gun crowd has long been magazine capacity. What gun-owners consider standard or full-capacity magazines, gun-controllers label “high capacity.” The Federal Assault Weapons Ban of 1994 made new manufacture and sale of the devices illegal for civilians, setting an arbitrary 10-round limit. It expired ten years later, however, and included a provision that the California law at issue did not – a grandfather clause.
World’s #1 Grandpa
California’s Section 32310’s failure to include that type of exception to this ban may be straw that broke the camel’s back. Judge Lee’s opinion for the 9th Circuit discussed the lack of such a clause at length, and why it made the case subject to judging under the constitution’s most demanding test for laws implicating fundamental rights: strict scrutiny. Judge Lee said:
"Without such a clause, law-abiding citizens who legally possessed LCMs[Large Capacity Magazines] before enactment are deprived of the right to use those arms for lawful ends. These law-abiding citizens could have owned LCM for decades, and perhaps even used them for self-defense in the past. But none of that matters under California law. They must turn them over – or face a year in jail. Based on the record before us, there is no apparent justification or support for the lack of a grandfather exception."
Regarding the case as one where strict scrutiny applies is a keystone of the analysis, because very few regulations can survive such review. To pass muster, under this standard, the government must show there is a compelling state interest behind the challenged policy, and that the law or regulation is narrowly tailored to achieve its result. The court granted that reducing gun-violence was compelling, but found that this law was the opposite of narrowly-tailored.
Judge Lee wrote the majority opinion for a three-judge panel. He was joined by Judge Consuelo Callahan, and both agreed that strict scrutiny applied and that the law failed the test. They also found that if the lower standard of intermediate scrutiny applied, the ban would fail under that analysis as well. That standard requires the government to show that laws examined under its standard serve an important government objective, and be substantially related to achieving the objective. The panel’s dissenter, Judge Barbara M. Lynn, wrote that the law should stand because it did survive intermediate scrutiny.
Minority Judges For Individual Rights
Lynn, a white woman, is a Clinton appointee to the bench. Ms. Callahan was appointed by George W. Bush, and Mr. Lee, the immigrant who was opposed by Democrats during his nomination, was appointed by Donald J. Trump. This looks like another home run for Trump in an area in which he has been remarkably effective: appointing strongly pro-liberty judges. Lee writes:
"[T]he Second Amendment is not a second-class right. Nor is self-defense a dispensation granted at the state’s mercy. Rather, the Second Amendment is a fundamental constitutional right guaranteed to the people — especially those who may not be equally protected by the state. Moreover, the Second Amendment is not a relic relevant only during the era of Publius and parchments. It is a right that is exercised hundreds of times on any given day."
Given this case’s import and the forces allied to fight on both sides, it will surely be appealed. The first step would be re-hearing en-banc, still at the 9th Circuit, but before more judges – and then the Supreme Court. Whether strict scrutiny applies will likely determine how the issue is decided by those courts. For now, Californians who wish may exercise their fundamental rights guaranteed under the Second Amendment, to own magazines with capacities over ten rounds.
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Read more from Scott D. Cosenza.
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