The 9th U.S. Circuit Court of Appeals ruled Thursday that California’s ban on large-capacity magazines is constitutional, overturning a previous ruling by a San Diego federal judge who found the state law violated the Second Amendment.
In an 8-3 decision authored by senior circuit Judge Susan Graber, an appointee of former President Bill Clinton, the majority wrote that “mass shootings are devastating events” that have increased in frequency and lethality over the years due to the widespread availability of semi-automatic firearms equipped with large-capacity magazines.
“A large-capacity magazine is a device that, when attached to a semi-automatic firearm, allows a shooter to fire more than ten rounds without pausing,” Graber wrote in the majority opinion. “A large-capacity magazine has little function in armed self-defense, but its use by mass shooters has exacerbated the harm of those horrific events.”
While gun magazines that hold more than 10 rounds have long been illegal to buy, sell or manufacture in California, in 2016 California voters approved a law that made mere ownership of such magazines unlawful. Gun owners and the California Rifle & Pistol Association quickly filed suit to challenge the ban, arguing it violated their constitutional right to self-defense.
Thursday’s ruling by the 9th Circuit was the latest in that dizzying, years-long legal battle that has moved from a U.S. district court in San Diego to the U.S. Supreme Court and back again.
San Diego-based U.S. District Judge Roger Benitez initially ruled in the gun owners’ favor in 2019. In 2020, a three-judge panel from the 9th Circuit affirmed Benitez’s ruling. But in 2021, a larger panel of 11 judges, known as an en banc panel, from the 9th Circuit voted 7-4 to reverse the rulings that struck down the law.
Attorneys for the gun owners then asked the Supreme Court to hear the case. But first, the Supreme Court ruled in June 2022 in a different case — New York State Rifle & Pistol Association, Inc. v. Bruen — a decision that set a new standard for how judges must determine the legality of Second Amendment cases. Rather than hear the San Diego case on its merits, the high court vacated the 9th Circuit’s ruling that upheld the law and ordered it to reconsider the case using the new Bruen standard. The appeals court then sent the case back down to Benitez.
Benitez again ruled in favor of the gun owners in 2023, describing California’s ban on large-capacity magazines as “arbitrary and capricious … (and) extreme.” He ruled the law was unconstitutional “based on the text, history, and tradition of the Second Amendment,” which was the standard established in the Bruen ruling.
But in the majority opinion published Thursday, an en banc panel of 9th Circuit judges — mostly comprised of the same judges from the 2021 en banc ruling — found the California law conforms with the Second Amendment “for two independent reasons.”
“First, the Founders protected the right to keep and bear ‘Arms,’ not a right to keep and bear ‘Arms and Accoutrements,’ a common expression at the time of the Founding,” the opinion said. “Large-capacity magazines are optional accessories to firearms, and firearms operate as intended without a large-capacity magazine. A large-capacity magazine is thus an accessory or accoutrement, not an ‘Arm’ in itself. Possession of a large-capacity magazine therefore falls outside the text of the Second Amendment.”
The judges wrote that even if large-capacity magazines were covered by the Second Amendment, “California’s law falls neatly within the Nation’s traditions of protecting innocent persons by prohibiting especially dangerous uses of weapons and by regulating components necessary to the firing of a firearm.”
Three judges appointed during President Donald Trump’s first term authored dissenting opinions. Judge Ryan Nelson wrote that his colleagues flouted the standard set by the Bruen ruling and in so doing “(butchered) the Second Amendment and (gave) a judicial middle finger to the Supreme Court.”
Judge Lawrence VanDyke included in his dissent a video of himself operating firearms in his chambers. Seven of the eight judges who were part of the majority opinion joined in an opinion calling the video “wildly improper,” both because the video introduced facts that were not part of the record and because VanDyke appeared to be attempting to offer expert testimony.
“Although I am surprised that it is necessary to do so, I write to reemphasize that as judges, we must decide cases as they are presented to us by the parties, leaving advocacy to the attorneys and testimony to the witnesses,” wrote senior Judge Marsha Berzon, a Clinton appointee.
