Court ends state’s ban on big gun magazines
California’s voterapproved ban on possessing largecapacity gun magazines, those holding more than 10 cartridges, violates the constitutional “right to armed selfdefense,” a divided federal appeals court panel ruled Friday.
Outlawing a commonly owned weapon, with exemptions only for police, security guards and a few other occupations, weakens “a lawabiding citizen’s right of defense of hearth and home,” the Ninth U.S. Circuit Court of Appeals in San Francisco said in a 21 ruling.
The ruling does not affect a 2000 state law banning sale of the gun magazines or a 2013 law prohibiting their purchase. But U.S. District Judge Roger Benitez of San Diego has declared
those laws unconstitutional as well, though he has allowed the state to enforce them during an appeal that is proceeding separately. Benitez was also the judge who struck down the ban on possession.
That ban was part of Proposition 63, a November 2016 guncontrol initiative whose sponsors included thenLt. Gov. Gavin Newsom. They said the weapons were commonly used in mass shootings and had little to do with the right of selfdefense, the U.S. Supreme Court’s rationale for its 2008 ruling declaring a constitutional right to possess handguns in the home.
Similar gun magazine bans in other states have been upheld by other federal courts, and a different Ninth Circuit panel in 2015 allowed Sunnyvale to enforce a ban on possessing the magazines within city limits. But the court said Friday that the justifications for restrictions in a small, affluent community with a crime rate less than half of California’s average could not be applied statewide.
“Those who live in rural areas where the local sheriff may be miles away, lawabiding citizens trapped in highcrime areas, communities that distrust or depend less on law enforcement, and many more who rely on their firearms to protect themselves and their families” can have a legitimate need for highcapacity magazines to defend themselves, Judge Kenneth Lee said in the majority opinion.
A study from 1990 to 2015, relying on government data, found that among 230 million firearms in the United States, 115 million had magazines holding more than 10 cartridges, Lee said — in other words, “half of all magazines in America are now unlawful to own in California.”
He also said provisions of the Supreme Court’s 2008 ruling that allowed states to ban firearms that are “dangerous and unusual” did not apply to highcapacity magazines because they are so widely owned.
Lee said private ownership of guns, including highcapacity guns, was crucial in the Revolutionary War and has been throughout U.S. history for the selfdefense of racial and sexual minorities, and women. Journalist Ida B. Wells, cofounder of the NAACP, wrote that “a Winchester rifle should have a place of honor in every black home,” Lee said.
He said California could enact lessrestrictive measures, such as waiting periods for gun purchases, bans on ownership by felons and a requirement to microstamp bullets for identification at crime scenes, all of which have been upheld by the courts.
Lee, an appointee of President Trump, was joined by Judge Consuelo Callahan, appointed by President George W. Bush. The dissent came from U.S. District Judge Barbara Lynn of Dallas, an appointee of President Bill Clinton temporarily assigned to the appeals court.
California’s law “does not place a substantial burden on core Second Amendment rights because it does not prevent the use of handguns or other weapons in selfdefense,” Lynn said, citing the court’s 2015 Sunnyvale ruling. She said studies found that guns with largecapacity magazines had been used in 74% of killings of 10 or more people in the U.S. since 1968, and in all massacres of 20 people or more.
The panel, chosen at random, was more conservative than the appeals court’s overall majority, and Attorney General Xavier Becerra is likely to ask the full court for a rehearing before a larger panel.
Becerra’s office said only that the attorney general “remains committed to using every tool possible to defend California’s gun safety laws and keep our communities safe.”
Opposing sides in the case cast a political light on the ruling, emphasizing Trump’s role in appointing Lee and other progun judges.
National Rifle Association spokeswoman Amy Hunter said the ruling shows that “everyone who voted progun in 2016 played a role in this significant win. It’s a reminder to everyone: Vote in November. Your rights depend on it.”
Hannah Shearer, lawyer for the Giffords Law Center, a guncontrol group based in San Francisco, said the court’s decision “should put gunsafety advocates across the country on high alert. It’s a sign that the NRAapproved judges Trump’s administration has focused on confirming at record rates are hostile to gun violenceprevention efforts.”
The ruling was also denounced by Sen. Dianne Feinstein, DCalif., author of a 1994 law that imposed a nationwide ban on buying or selling highcapacity magazines and semiautomatic assault rifles. The law expired in 2004 when Congress refused to renew it.
“These tools of war don’t belong on our streets,” Feinstein said. She also said Lee, who told senators last year that he would follow past legal precedents if confirmed to the court, “proved his answer was hollow.”