DUNCAN V. BECERRA RE-LEGALIZES (FOR NOW)
STANDARD CAPACITY MAGAZINES IN CALIFORNIA
On August 14, 2020, in Duncan v. Becerra, Appeal No. 19-55376 (9th Cir. Aug. 14, 2020) (Slip Opinion), a three-judge panel of the Ninth Circuit court of appeals shocked the state of California, the firearms community, and the anti-gun world by striking down California’s statutory ban on so-called large capacity magazines (“LCMs”), which are commonly used in semi-automatic firearms and hold more than 10 rounds of ammunition. Slip Op. at 9. In 2016, California amended its Penal Code section 32310 to expand its then-existing ban on the manufacture, importation, sale, purchase, and receipt of LCMs, to make it illegal for almost everyone in California to possess previously grandfathered-in LCMs. Id. at 10-11. In striking down section 32310 as a violation of the Second Amendment, the court of appeals observed that the ban (1) outlawed magazines that come as standard equipment in Glocks, Berettas, and other handguns that are commonly owned and used for self-defense; and (2) required law-abiding citizens to alter, remove from the state, or relinquish to law enforcement any LCMs that they had legally owned for years or face conviction of a misdemeanor carrying up to a year in jail. Id. at 9, 11-12.
The Ninth Circuit panel in Duncan affirmed a district court’s entry of summary judgment striking down section 32310 on the ground that the ban on LCMs severely burdened the Second Amendment’s core right of self-defense. Id. at 9-10, 15. As will be explained in more detail below, the Duncan panel utilized the Ninth Circuit’s formulaic two-step constitutional analysis which asks whether the statute (1) burdens a right protected by the Second Amendment; and (2) if so, the extent to which that right is burdened and whether the statute meets the requirements of an appropriate level of constitutional scrutiny. Id. at 18-19. If the law meets the requirements of the appropriate level of scrutiny, it is considered to be constitutional; if not, the law is struck down.
The panel concluded that section 32310 severely burdens the core right of law-abiding citizens to keep and bear arms, and that the statute cannot survive the applicable test of strict scrutiny because it is an overly broad means to accomplish the state’s interests in preventing and mitigating gun violence. Id. at 15, 18, 57-58. The panel added that even if it were to apply intermediate scrutiny, the law would still fail. Id. at 15, 58-66.
We will go into the details of the Ninth Circuit panel’s decision in the Analysis set forth below, if for no other reason than to illustrate just how many ways the circuit courts of appeal have developed – notwithstanding the Supreme Court’s Heller decision – to try to uphold as constitutional broad prohibitions of LCMs commonly used by law-abiding citizens for self-defense.
In District of Columbia v. Heller, 554 U.S. 570, 592-95 (2008), and McDonald v. City of Chicago, 561 U.S. 742, 767-78 (2010), the Supreme Court held that the right to keep and bear arms for self-defense is a core individual right protected by the Second Amendment. The Court added in Heller (and repeated in McDonald) that while the right of self-defense was the central component of the enumerated right to keep and bear arms, one of the most important purposes for the Second Amendment’s passage was to enable armed citizens to better resist their very own government’s tyranny if the constitutional order were to break down. Heller, 554 U.S. at 597-99, 606; McDonald, 561 U.S. at 767-78.
With these principles in mind, the Heller Court further held that the Second Amendment protects small arms which are commonly owned and used by citizens for lawful purposes like self-defense, and includes all instruments that constitute bearable arms, even those that were not in existence at the time of the founding. 554 U.S. at 582, 624-25, 627-28. The Court also addressed in passing what weapons are not covered by the right to keep and bear arms and indicated its agreement with laws prohibiting the carrying of “dangerous and unusual weapons” such as the short-barreled shotgun at issue in United States v. Miller, 307 U.S. 174, 178 (1939). Heller, 554 U.S. at 621-22, 627.
I. The First Prong of the Ninth Circuit’s Constitutional Analysis
The first prong of the Ninth Circuit’s two-prong analysis asks whether the challenged law burdens conduct protected by the Second Amendment. Duncan, Slip Op. at 18. To determine whether the law burdens protected conduct, the Ninth Circuit asks four questions:
First, does the law regulate “arms” for purposes of the Second Amendment? Id. at 18. The Duncan panel looked to Ninth Circuit precedent and reiterated that where firearms are commonly possessed by law-abiding citizens for lawful purposes, “there must be some corollary, albeit not unfettered, right to possess the magazines necessary to render those firearms operable.” Id. at 20, quoting Fyock v. City of Sunnyvale, 779 F.3d 991, 998 (9th Cir. 2015). The Duncan panel explained that “magazines feed ammunition into certain guns, and ammunition is necessary for such a gun to function as intended.” Id., quoting Association of New Jersey Rifle and Pistol Clubs v. Attorney Gen. New Jersey, 910 F.3d 106, 116 (3d Cir. 2018) (“ANJRPC”). Based on the Supreme Court’s pronouncement in Heller – that it is unconstitutional to make it impossible for citizens to use their firearms for self-defense – the Duncan panel held that “a regulation cannot permissibly ban a protected firearm’s components critical to its operation.” Id., citing Heller, 554 U.S. at 630. The panel concluded that magazines are “arms” for purposes of the Second Amendment because without a magazine, quintessential self-defense weapons like semi-automatic handguns would be “useless.” Id.
Second, in the wake of Heller and Miller, the court asks whether the law regulates an arm which is both dangerous and unusual, in which case the law does not burden protected conduct and the inquiry ends. Id. at 18-19. Relying on Justice Alito’s concurring opinion in Caetano v. Massachusetts, 136 S. Ct. 1027, 1031 (2016) (Alito, J., concurring), the Duncan panel held that where a weapon belongs to a class of arms commonly used for lawful purposes, the relative dangerousness of the weapon is irrelevant. Duncan, Slip Op. at 21, 26. The Duncan panel cautioned that it might not be sufficient to look at statistics alone to determine common use, because protected arms might be scarce because of an unchallenged, unconstitutional law. As the panel cogently observed, a law’s mere existence cannot be the source of its own constitutional validity. Id. at 21-22. Thus, the panel explained, while common use is an objective and largely statistical inquiry, assessing typical purposes of possession requires us to look into both broad patterns of use and the subjective motives of gun owners.” Id. at 22, quoting New York State Rifle & Pistol Ass’n v. Cuomo, 804 F.3d 242, 256 (2d Cir. 2015) (NYSRPA”).
The Duncan panel concluded that LCMs are commonly owned and typically used for lawful purposes (and thus, are not unusual), because nearly half of all magazines in the United States today hold more than ten rounds of ammunition, and the record before the district court showed that those magazines are overwhelmingly owned and used for lawful purposes. In the panel’s view, “[t]his is the antithesis of unusual. Id. at 21, 22. Interestingly, the panel also traced the pre-revolution development and use of firearms that held more than ten rounds and the post-revolution spread of rapid-fire handguns and rifles fed by magazines that hold more than ten rounds. Id. at 22-25. The panel was impressed by the evidentiary record from the district court which established that “firearms capable of holding more than ten rounds of ammunition have been available in the United States for well over two centuries” and therefore concluded that LCMs are not “unusual” arms. Id. at 25. And because LCMs are not “unusual,” the panel did not need to speak to whether they are “dangerous” under the Ninth Circuit’s “dangerous and unusual” test. Id. at 26 & n. 8.
Third, the court asks whether a law or regulation is longstanding and thus presumptively lawful. Id. at 19.[i] If this question is answered in the affirmative, the law is presumed not to affect protected conduct and the inquiry ends.[ii]
To determine whether a law is longstanding, the Ninth Circuit looks for evidence showing whether the challenged law traces its lineage to founding-era or Reconstruction-era laws. Id. at 27-28. The Duncan panel reviewed the history of legal restrictions on magazines and observed that (1) laws restricting ammunition capacity did not emerge until 1927 and all but one of them have since been repealed; and (2) modern LCM restrictions are of an even younger vintage, only enacted within the last three decades. Id. at 29. Accordingly, the panel concluded that the LCM restrictions of section 32310 could not be considered longstanding, and thus do not enjoy a presumption of constitutionality. Id., citing ANJRPC, 910 F.3d at 116, 117 n. 18; Heller v. District of Columbia, 670 F.3d 1244, 1260 (D.C. Cir. 2011) (“Heller II”); and United States v. Chovan, 735 F.3d 1127, 1137 (9th Cir. 2013).
Fourth, the court asks whether there is any persuasive historical evidence in the district court record showing that the law affects rights that fall outside the scope of the Second Amendment. If this question is answered in the affirmative, the law is again presumed not to affect protected conduct and the inquiry ends. Id. at 19. Not surprisingly, the Duncan panel found no persuasive historical evidence in the district court record showing that LCM possession has been understood to fall outside the scope of the Second Amendment, because the historical record makes clear that LCM restrictions are modern legislative creations. Id. at 30.
Because the Duncan panel found that section 32310 burdens protected conduct, it was required to proceed to the second prong of its two-prong analysis and determine the appropriate level of constitutional scrutiny. Id. at 19, 31.
II. The Second Prong of the Ninth Circuit’s Constitutional Analysis
The second prong of the Ninth Circuit’s two-prong analysis requires the court to ask two questions to determine the appropriate level of constitutional scrutiny:
First, how close does the challenged law come to the core right protected by the Second Amendment? Id. at 19.
Second, does the law impose substantial burdens on the core right? Id.
If a challenged law does not strike at the core Second Amendment right or does not substantially burden that right, a judicial test known as intermediate scrutiny will apply. Id.[iii] Only if the law strikes at a core Second Amendment right and substantially burdens the right will a judicial test known as strict scrutiny apply. Id.[iv] If a statute such as section 32310 meets the requirements of the appropriate level of scrutiny, the Ninth Circuit considers it to be constitutional. As discussed below, because the Duncan panel concluded that section 32310 did not meet the requirements of the applicable standard of strict scrutiny, the district court’s decision to strike the law down as unconstitutional was affirmed.
- The Duncan Panel Applies Strict Scrutiny to Section 32310
The Duncan panel applied strict scrutiny to section 32310 because it found that (1) the statute strikes at the core Second Amendment right of self-defense (including self-defense in the home), id. at 31-32, 33, and (2) the burden imposed on the core right is substantial. Id. at 31, 33-52, 55.
The panel focused on LCMs used in handguns and observed that LCMs come as standard equipment in popular semi-automatic handguns commonly used by citizens for self-defense. Id. at 12-13, 45. The panel also pointed out that the law categorically prohibits possession by almost everyone in California of magazines that are commonly used in handguns, “the quintessential self-defense weapon,” and held that “any law that comes close to categorically banning the possession of arms that are commonly used for self-defense imposes a substantial burden on the Second Amendment.” Id. at 33.
The panel rejected the state’s invitation to weigh the pros and cons of an LCM ban to determine “substantial burden,” a methodology that was expressly rejected in Heller. Id. at 41-42. The panel explained:
[A] “substantial burden” on the Second Amendment is viewed not through a policy prism but through the lens of a fundamental and enumerated constitutional right. We would be looking through the wrong end of a sight-glass if we asked whether the government permits the people to retain some of the core fundamental and enumerated right. Instead, Heller counsels us to look at whether the government regulation restricts the core fundamental right from the outset. In other words, we look to what a restriction takes away rather than what it leaves behind. Here, California’s law takes away a substantial swath of the core constitutional right of self-defense because it bans possession of half of all magazines in America today, even though they are common in guns used for self-defense. In short, a law that takes away a substantial portion of arms commonly used by citizens for self-defense imposes a substantial burden on the Second Amendment.
Id. at 42.
Interestingly, while the Duncan panel pointed out the widespread use of LCMs in commonly owned and used semi-automatic rifles, id. at 24-25, it largely avoided the controversial question whether section 32310 improperly interferes with the main purpose behind passage of the Second Amendment – i.e., to enable armed citizens to better resist the tyranny of their own government if the constitutional order were to break down. Compare Slip Op. at 12-13 with id. at 16-17. While the panel’s finding that LCMs are commonly owned and used by law-abiding citizens for the purpose of self-defense is sufficient to support its conclusion that section 32310 severely burdens a core Second Amendment right, the panel missed an opportunity to support its analysis with a focused discussion of section 32310’s effect on citizens’ ability to resist government tyranny in the event of a constitutional breakdown. We may rue the panel’s narrow approach if the en banc Ninth Circuit rejects the panel’s self-defense-focused analysis.
The Duncan panel held that section 32310 does not survive strict scrutiny review, which requires that the challenged law be narrowly tailored to achieve a compelling state interest. Id. at 56. The panel added that the challenged law must be the least restrictive way of achieving the state’s interest. The panel explained that if there are other reasonable ways to achieve the state’s purpose which would impose a lesser burden on constitutionally-protected activity, the state may not choose the way of greater interference. Id. at 56-57.
While the panel agreed that the state’s interests in mitigating gun violence (particularly public mass shootings and the murder of law enforcement personnel) are compelling, it held that the state’s chosen method “– a statewide blanket ban on possession everywhere and for nearly everyone –” is not the least restrictive means of achieving those interests. Id. at 57-58.
- The Duncan Panel’s Alternative Use of Intermediate Scrutiny
In an effort to shield its decision from en banc review,[v] the panel also held that section 32310 would be unconstitutional even if intermediate scrutiny were applicable. Id. at 58, 63-66. While the panel agreed with the state that the statute purports to serve important state interests, it held that the means chosen by the state in section 32310 are not substantially related to those interests. Id. at 59, 63-66.[vi]
The Duncan panel explained that even with the latitude permitted by the intermediate scrutiny standard, section 32310’s relationship to the state’s purported objectives is excessive and sloppy, imposing a blanket ban on all types of LCMs everywhere in California for almost everyone. The panel pointed out that it applies to rural and urban areas, in places with low crime rates and high crime rates, areas where law enforcement response times may be significant, to those who may have high degrees of proficiency in the use of LCMs for self-defense, and to vulnerable groups who are in the greatest need of self-defense. The panel added that section 32310 prohibits possession outright, applies to all firearms, including handguns that are the quintessential self-defense weapon, and does not grandfather in citizens who possessed and lawfully used LCMs prior to enactment of the statute. Id. at 63-64.
The Duncan panel also skewered the data relied on by the state to support the statute, pointing out why the data failed to show that dispossessing law-abiding Californians of LCMs would materially affect crime or numbers of shooting casualties. Id. at 64-65.
For all these reasons, the panel concluded that even if intermediate scrutiny were applied, the means chosen to advance the state’s purported objectives were not substantially related to those ends, and section 32310 would therefore fail to pass muster under intermediate scrutiny as well. Id. at 63, 66.
THE DISSENT’S APPROACH
A dissenting opinion by a district court judge (Judge Barbara M.G. Lynn, sitting on the appeal by designation) would have applied intermediate scrutiny to uphold section 32310 as constitutional. She reasoned that because the possession of 10-round magazines was permitted by section 32310, the statute (in her view) did not substantially burden the core right of self-defense in the home. Id. at 69-71 (Lynn, J., dissenting).
Never underestimate the willingness of ivory tower judges who are unfamiliar with firearms and basic self-defense shooting principles to put their fellow citizens at the tender mercy of better-armed criminals, notwithstanding the Second Amendment’s unequivocal prohibition of infringements on the right to keep and bear arms. Ask any educated gun owner the following question: “If you were confronted late at night in your residence by two home invaders brandishing Glocks (each equipped with the standard capacity 15-round magazines outlawed by section 32310), would your ability to defend yourself and your family be substantially burdened by your use of a 10-round magazine allowed by the statute?” We all know what the answer would be: “Hell yes, I am being substantially burdened. I’d have to change magazines twice during an all-out gunfight to match the 30 rounds already loaded in the intruders’ guns, severely undermining my ability to effectively defend myself and my family.” Judge Lynn would do better to spend less time dealing with abstract concepts such as “classes of firearms” in her dissent (id. at 71-73 (Lynn, J., dissenting)) and more time learning about how firearms work in actual use. It would enable her to make judgments based on practical, real-world conditions, instead of from the vantage point of a gun-free pink cloud.
CONCLUSION – WHAT LIES AHEAD
While Duncan is a welcome break from the numerous decisions which have utilized weak versions of intermediate scrutiny to uphold LCM bans,[vii] responsible firearms owners and Second Amendment supporters should not draw too much solace from it. The panel opinion pointed out in its conclusion that the decision did not reach the constitutionality of bans on magazines holding far larger quantities of ammunition than 10 rounds. Id. at 66. It also warned that it did not speak to bans on so-called “assault weapons.” Id. Of course, the panel was adhering to basic principles of judicial review in “sticking to its knitting” and speaking only to the LCM ban in section 32310. But one can just imagine what mischief another Ninth Circuit panel would do with a Second Amendment challenge to a statute broadly banning the private possession of commonly-owned semi-automatic, single-fire rifles such as AR-15s. See, e.g., Silveira v. Lockyer, 312 F.3d 1052, 1057-87 (9th Cir. 2003) (prior to Heller, holding that the Second Amendment does not confer an individual right to own or possess arms, and affirming a district court’s dismissal of a suit challenging California’s 1999 ban on assault weapons purchased after the law’s enactment and requiring registration of grandfathered arms with the state).
In addition, before anyone gets too excited over the possibility that the Supreme Court will be asked to review Duncan to resolve the split in the circuit courts over LCMs, we need to wait and see what the full Ninth Circuit court of appeals does to the panel’s decision on en banc review. It is pretty likely that the court of appeals (most of whom were appointed by Democrat Presidents) will re-hear the case en banc, vacate the panel’s decision, and reinstate section 32310. This would eliminate it as a reason for Supreme Court review of the conflict between the Duncan panel decision and decisions in five other circuits upholding bans on possession of LCMs.
If the panel decision stands, it will be interesting to see whether the Supreme Court will review Duncan to resolve the conflict in the circuits, or will wait for an LCM ban to be presented as part of a broader prohibition of so-called “assault firearms.”
[i] This inquiry is based on the observation in Heller that three kinds of laws are presumptively consistent with the Second Amendment: (1) prohibitions on possession by the mentally ill or felons; (2) laws forbidding carriage in sensitive places; and (3) laws that place qualifications on commercial sales of firearms. Duncan, Slip Op. at 27, citing Heller, 554 U.S. at 626-27.
[ii] Neither the Heller Court nor the Ninth Circuit has decided whether the presumptive constitutionality of these kinds of restrictions is legally rebuttable. Slip Op. at 27 n. 9.
[iii] Intermediate scrutiny requires that a challenged law has a substantial relationship to an important public interest. Id. at 59. Post Heller, intermediate scrutiny has often been used by anti-gun judges to uphold laws restricting the right to keep and bear arms.
[iv] Strict scrutiny requires that the challenged law be narrowly tailored to accomplish a compelling interest. Id. at 56. It also must be the least restrictive way of achieving the state’s interest. Id. at 56-57.
A third judicial test, the rational basis standard, requires only that the challenged law bear a rational link to a legitimate public interest. Richard H. Fallon, Jr., Strict Judicial Scrutiny, 54 U.C.L.A. L. Rev. 1267 (2007).
[v] The Ninth Circuit’s Local Rules provide for reconsideration of the appeal by 11 of its 29 active judges (referred to in its Rules as limited en banc review) and provide for yet another layer of review by the full court sitting en banc if the limited en banc result is unsatisfactory. Circuit Rule 35-3. The Democrat majority on the court can be expected to keep at it until the court reaches a decision upholding the constitutionality of section 32310.
[vi] The Duncan panel reviewed the various formulations of intermediate scrutiny applied in the Ninth Circuit and elsewhere, many of which require only a reasonable fit or a reasonable relationship between the state’s ends and the means chosen. Duncan, Slip Op. at 59-60. The panel noted that in Heller, the Supreme Court held that rational basis review was inappropriate to determine the extent to which a legislature may regulate a specific, constitutionally-enumerated right, such as the right to keep and bear arms. Id. at 61, citing Heller, 554 U.S. at 628 n. 27. The panel rejected the intermediate scrutiny formulations that approximate the easily-satisfied rational basis standard or a deferential standard applied by the Supreme Court to a complex regulatory scheme in Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622 (1994) (“Turner I”), and Turner Broadcasting System, Inc. v. F.C.C., 520 U.S. 180 (1997) (“Turner II”). Duncan, Slip Op. at 59-63.
In a somewhat confusing passage, the Duncan panel referred to the Supreme Court’s holding in cases like Packingham v. North Carolina, 137 S. Ct. 1730, 1736 (2017), and stated that to survive intermediate scrutiny, “a law must be narrowly tailored to serve a significant governmental interest.” Duncan, Slip Op. at 59. While we do not believe the panel intended it this way, this statement could be misconstrued to make it sound like the panel’s concept of intermediate scrutiny differs little from strict scrutiny. We interpret the Duncan panel’s description of intermediate scrutiny to mean that, unlike strict scrutiny, intermediate scrutiny does not require the challenged law to be the least restrictive alternative, but it does require a narrowly tailored approach.
[vii] Decisions in the First, Second, Third, Fourth, Ninth, and D.C. Circuits have repeatedly used intermediate scrutiny to uphold bans on LCMs. See Worman v. Healy, 922 F.3d 26 (1st Cir. 2019) (using intermediate scrutiny to uphold Massachusetts’ ban on the manufacture, transfer, and possession of semi-automatic assault weapons and the transfer and possession of LCMs); NYSRPA, 804 F.3d 242 (2d Cir. 2015) (using intermediate scrutiny to uphold New York’s and Connecticut’s ban on possession of semi-automatic assault weapons and LCMs, subject to an exception that grandfathered in pre-existing, registered weapons); ANJRPC, 910 F.3d 106 (3d Cir. 2018) (affirming a district court’s use of intermediate scrutiny to refuse an injunction against New Jersey’s ban on possession of LCMs); Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) (en banc) (holding (incredibly!) that so-called “assault weapons” (commonly-owned, single shot rifles such as the AR-15) and LCMs are most useful in military service and therefore are not protected by the Second Amendment, and alternatively using intermediate scrutiny to uphold Maryland’s ban on: (a) possession of assault weapons acquired after October 1, 2013 and (b) the manufacture, sale, purchase, receipt, or transfer (but not the possession) of LCMs); Fyock, 779 F.3d 991 (9th Cir. 2015) (affirming a district court’s use of intermediate scrutiny to refuse an injunction against Sunnyvale, California’s ban on possession of LCMs); Heller II, 670 F.3d 1244 (D.C. Cir. 2011) (using intermediate scrutiny to uphold the District of Columbia’s ban on assault weapons and LCMs). See also Friedman v. City of Highland Park, 784 F.3d 406 (7th Cir. 2015) (upholding Highland Park’s prohibition against possession of assault weapons and LCMs but without articulating a standard of review).