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By Chuck Michel

Yesterday an 11-judge panel, sitting en banc, heard oral arguments in Duncan v. Bonta (formerly Duncan v. Becerra). The California Rifle & Pistol Association lawsuit, which challenges California’s flat ban on magazines capable of holding more than 10 rounds of ammunition, was the first successful constitutional challenge to bans on so-called “large-capacity magazines” in the country.

But with a likely unfriendly en banc panel — composed of seven judges appointed by Democrats and just four appointed by Republicans — that victory hangs in the balance.

As reported previously, a three-judge panel of the Ninth Circuit held in August 2020 that California’s ban on standard-capacity magazines is unconstitutional. That decision struck down California’s statewide prohibitions on both possessing and acquiring such magazines and, in doing so, upheld a 2019 decision from the United States District Court in San Diego secured by CRPA and its attorneys at Michel & Associates, P.C.

That decision sparked what we have all come to know as Freedom Week, during which California gun owners lawfully purchased hundreds of thousands — if not millions — of standard-capacity magazines.

The historic Duncan panel decision was, unfortunately, vacated in light of the Ninth Circuit’s decision to rehear the case en banc.

Yesterday’s oral argument sheds some light on what we can expect from the court now. Indeed, as was expected, many of the judges appeared hostile to CRPA’s position that the statewide ban on magazines capable of holding more than 10 rounds violates both the Second Amendment and the Takings Clause.

For instance, several judges focused on how often law-abiding citizens must fire more than 10 rounds in self-defense, seemingly agreeing with DOJ’s claim that that the rarity of such events proves that they are not in “common use” for lawful purposes.

But Judge Lawrence VanDyke, an appointee of President Trump, astutely pointed out that the DOJ is trying to have its cake and eat it, too. As Judge VanDyke observed, the DOJ relies on the relative rarity of defensive gun use requiring over 10 shots to support its position that laws prohibiting standard-capacity magazines only impose the most minor burden and are thus constitutional. While, at the same, the DOJ argues that the government can flatly ban all magazines over ten rounds because of the even more rare circumstance in which the mere seconds it would take to reload a firearm during the already statistically rare mass shooting might result in a life saved.

As attorney Erin Murphy, arguing for CRPA, pointed out, this is not the sort of hypothetical situation that justifies banning constitutionally protected conduct, the least narrowly drawn form of restriction available.

CRPA now awaits yet another ruling on its historic gun-rights lawsuit. The decision could come at any time, but it could be held up in light of New York Rifle & Pistol Association v. Corlett, which the Supreme Court recently agreed to hear and could have a significant impact on Duncan.

But no matter what happens, CRPA is poised to continue its fight against California’s unconstitutional ban on commonly possessed magazines.

* * *

CRPA’s efforts in Duncan and the many other lawsuits fighting for the rights of California gun owners would not be possible without the support of our members and the public. Please help CRPA continue the fight against California’s unconstitutional laws by donating to the CRPA Foundation.

And make sure you are subscribed to CRPA email alerts and visit the CRPA website for the latest developments in Duncan.

 

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33 COMMENTS

    • I’m curious, now that I think of this. Judge Benitez struck down all four parts of our CA P.C. pertaining to magazines, but stayed the two regarding importation, sale, or transfer, which left them enforceable. The other two pertaining primarily to mere possession were indefinitely stayed, and today mere possession is not to be considered probable cause or a violation of law.

      So, then, if CA appealed Benitez’ decision, was it to prevent future sales and transfers, or to knock down the entire injunction and make mere possession once again an arrestable offense?

      Because a lot of us now (legally) own a lot of 10+ mags due to Freedom Week. Not to mention whatever more were either grandfathered before the ban was implemented two decades ago, or brought in under the radar recently.

      The point is, no matter how you slice it, we have a ton of 10+ mags here in CA. They simply aren’t going to disappear, canoe accident or otherwise.

      • Mine will remain hidden for 2 more years. When my wife retires we leave CA.

        CA has lost a congressional seat because of loss of people. I’m going to help that trend along.

        • Glad to hear it. Wherever you’re going, that state will be the stronger for it — and anything that bleeds California is a good thing.

          More people should follow suit. California is a lost cause; the progbots will always outvote you there, and that’s all there is to it. Meanwhile, it would take less than half of California’s conservative/liberty-minded folks moving to other western states to tip the balance and/or keep multiple states free for a generation or more.

          Montana, Wyoming, Colorado, Idaho, Utah, Nevada, Arizona, New Mexico…take your pick. Heck, even Oregon and Washington might be recoverable if enough good people come in.

      • Sorry…meant to say the two pertaining to mere possession were indefinitely enjoined.

      • There are two aspects to the case, whether the ban is constitutional, and whether the law as written violates the “takings” clause, which provides that no private property may be taken for governmental purposes without adequate compensation. The second aspect arises because the law as written bans ALL 10+ mags, INCLUDING legally acquired (grandfathered or Freedom Week) mags. So if the judgment is reversed, and the Court further finds that 10+ mags may be declared a nuisance and thus banned without compensation, you will have to destroy your mags or sell them out of state. Stories are already circulating that police have seized 10+ mags under the nuisance laws notwithstanding Judge Benitez’s injunction banning enforcement of the possession law.

        • All your points above have been my understanding, too. However, AB63’s ban on grandfathering won’t be overturned as-is because the State must provide compensation. So that core constitutional issue would likely spearhead the next appeal to SCOTUS.

  3. Discounting of course the well documented instances of 3 or more police officers unloading full 17 rounders at a perp, resulting in 3 or 4 hits out of 50 to 60 shots fired. How about if we don’t need shit, they don’t need shit.

    • The police are well-trained in shooting. But a housewife facing home invasion thugs usually isn’t as well trained as the police. She might need several of those high capacity magazines.

  4. Regarding hopes the SC will settle the hash of conflicting appeal court rulings, will ever get to a place where 2A is a fundamental right (a judicial fiat, not a constitutional principle), not that the SC had time this session to rule on whether a school can control speech of students during non-school attendance hours. And that was so narrow a carving of the first amendment that you could use the ruling to slice bread.

    In the vernacular, such a ruling by the SC is called “Deciding how many angels can dance on the head of a straight pin.”

  5. What should be commented on, is how many rounds a civilian uses when fighting tyranny/an oppressive government.

    • I was waiting for that to be discussed and disappointed when it wasn’t even mentioned. Anyone know why?

      • “Anyone know why?”

        several reasons.

        1) many modern rightists envision themselves fighting “tyranny” by sniping. high-cap mags simply play no role here, and they don’t want to highlight that.

        2) many modern rightists simply are loners and envision themselves fighting “tyranny” heroically alone like rambo or something. but fighting alone will fail regardless of their magazine capacity, and any discussion of this eventually highlights this fact, so they don’t discuss it.

        3) those who actually are serious about any such thing are not on internet boards.

        so there is no-one on the boards who can or will bring this issue up. that’s why.

  6. I suspect we may see a ruling against the apelet court ruling which I would see as showing the rift between factions in the court. Normally one might expect the apelet court ruling to stay since it aligns with the original court ruling.
    Having the en banc over turn such a ruling which withstood scrutiny from the apelet court will not sit well.
    But as usual I suspect it will be over turned, and it can then go before SCOTUS.
    Although at this point, how will an officer know when I purchased a specific magazine?
    If I bought it during freedom week, well then it is legal.
    This basically means if you have possession of a regular capacity magazine no one can tell you if it is legal or otherwise.

    • The law in question, stayed pending appeal, would ban possession, therefore “freedom week” would no longer be a valid defense.

    • “If I bought it during freedom week, well then it is legal”

      you’d have to show a receipt.

      if they want to get pushy you’d have to prove that the receipt lists the magazine in question.

      • “you’d have to show a receipt.”

        Nope, and you know it. The burden of proof rests squarely on the State’s shoulders, and they must not only prove your guilt, but beyond a reasonable doubt.

        • Haz is right, which was the impetus for the law banning all mags, even those legally acquired, because the state could not carry its burden of proof on the criminal offense of illegal possession. It had to satisfy itself with seizing the mags as nuisances and destroying them, and that was just not good enough.

  7. Just going to be honest, I’m kind of expecting the en banc court to piss both sides off; it’s likely they’ll take the narrow road and say that while banning the sale/import/transfer of 11 round mags is constitutional, banning the possession of pre-existing magazines is unconstitutional, and force the state and CA gun owners into the Pre-2016 status quo of “If you already have them, you can keep them. Everyone else is SOL.”

    • The Ninth Circuit allowing people to keep “dangerous” and “lethal” 10+ mags for which there is no legitimate use except killing large numbers of people? You are such a dreamer!

  9. We all know how this is going to end up. The en banc hearing is just “Legal Theater,” designed to make the masses feel that they have a voice. Guess what? They don’t. It’s all a sham.

    Little did government know when it enacted RICO that it was describing itself.

    • Ralph,

      “The en banc hearing is just ‘Legal Theater,’ designed to make the masses feel that they have a voice.”

      I came to state the exact same thought.

  10. This is already a foregone conclusion. And the ninth circuit doesn’t have to worry because the Supreme Court won’t bother.

    And for those that would call me negative and that we always lose what do you actually expect to happen?

  11. “This is already a foregone conclusion”

    maybe. but we really should push this to the legal end while that possibility still exists.

  12. I was living in CA at the time and bought 20 X 30 standard AR mags. they are still full and living the good life in Western NC. Glad I don’t have to worry about this BS any more. Got my bullet buttons removed for standard mag release and me and my ARs are happy now!

    • Kevin,

      “Glad I don’t have to worry about this BS any more.”

      You may not have to worry about that baloney for the next several months. You may very well have to worry about it in a few years, either in North Carolina or on the federal level.

      As far as I can gather, the political reality in North Carolina is almost equally divided Progressive–Conservative and, most disturbingly, trending Progressive over the last 20 or so years.

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