The Attorney General of California, Xavier Becerra, displeased with the mid-August decision by the Ninth Circuit that held the California ban on magazines that hold over 10 rounds of ammunition to be unconstitutional, has petitioned the Ninth Circuit to review the case en banc.
The petition states: “California respectfully petitions for rehearing en banc of the panel’s decision, which invalidates a state law restricting large-capacity magazines that can hold more than 10 rounds of ammunition.”
In late March 2019, Judge Roger T. Benitez ruled that the magazine ban was unconstitutional. He noted, “As evidenced by California’s own crime statistics, the need to protect one’s self and family from criminals in one’s home has not abated no matter how hard they try. Law enforcement cannot protect everyone … However, California citizens, like United States citizens everywhere, enjoy the right to defend themselves with a firearm, if they so choose. To protect the home and hearth, citizens most often choose a handgun, while some choose rifles or shotguns.”
“Regardless of current popularity, neither a legislature nor voters may trench on constitutional rights,” he continued. “The Second Amendment protects the would-be American victim’s freedom and liberty to take matters into one’s own hands and protect one’s self and family until help arrives. … According to the U.S. Supreme Court’s reasoning, acquiring, possessing, or storing a commonly-owned 15-round magazine at home for self-defense is protected at the core of the Second Amendment.”
On August 14, 2020, the Ninth Circuit upheld Benitez’s decision. Appellate Judge Kenneth Lee, writing for the majority, stated:
In the wake of heart-wrenching and highly publicized mass shootings, the state of California barred its citizens from owning so-called “large capacity magazines” (LCMs) that hold more than ten rounds of ammunition. But even well-intentioned laws must pass constitutional muster. California’s near-categorical ban of LCMs strikes at the core of the Second Amendment — the right to armed self-defense. Armed self-defense is a fundamental right rooted in tradition and the text of the Second Amendment. Indeed, from pre-colonial times to today’s post-modern era, the right to defend hearth and home has remained paramount.
California’s law imposes a substantial burden on this right to self-defense. The ban makes it criminal for Californians to own magazines that come standard in Glocks, Berettas, and other handguns that are staples of self-defense. Its scope is so sweeping that half of all magazines in America are now unlawful to own in California. Even law-abiding citizens, regardless of their training and track record, must alter or turn over to the state any LCMs that they may have legally owned for years — or face up to a year in jail.
The ruling explained, “The Ninth Circuit employs a two-prong inquiry to determine whether firearm regulations violate the Second Amendment: (1) whether the law burdens conduct protected by the Second Amendment; and (2) if so, what level of scrutiny to apply to the regulation.”
The court then delineated further:
The panel held that under the first prong of the test, Cal. Penal Code § 32310 burdened protected conduct. First, the panel held that firearm magazines are protected arms under the Second Amendment. Second, the panel held that LCMs are commonly owned and typically used for lawful purposes, and are not “unusual arms” that would fall outside the scope of the Second Amendment. Third, the panel held that LCM prohibitions are not longstanding regulations and do not enjoy a presumption of lawfulness. Fourth, the panel held that there was no persuasive historical evidence in the record showing LCM possession fell outside the ambit of Second Amendment protection.
Proceeding to prong two of the inquiry, the panel held that strict scrutiny was the appropriate standard to apply. First, the panel held that Cal. Penal Code § 32310 struck at the core right of law-abiding citizens to self-defend by banning LCM possession within the home. Second, the panel held that Section 32310’s near-categorical ban of LCMs substantially burdened core Second Amendment rights. Third, the panel held that decisions in other circuits were distinguishable. Fourth, the panel held that this circuit’s decision in Fyock v. City of Sunnyvale, 779 F.3d 991 (9th Cir. 2015), did not obligate the panel to apply intermediate scrutiny.