Ninth Circuit Strikes Down California

Ban on High-Capacity Gun Magazines

By BIANCA BRUNO, Contributing Writer

SACRAMENTO (CN) — Siding with a lower court judge who found California’s

ban on high-capacity gun magazines holding more than 10 rounds of ammunition

is illegal and could lead to women being “raped and dead,” a duo of GOP-

appointed Ninth Circuit judges Friday ruled the ban violates the Second


In a 66-page order, U.S. Circuit Judge Kenneth Lee, a Donald Trump appointee,

found California’s voter-approved Proposition 63 — enacted in 2016 to ban the

high-capacity gun magazines frequently used in mass shootings — violates the

Second Amendment.

Lee found Proposition 63 burdens conduct protected by the Second Amendment,

as firearm magazines are protected under the Constitution, not “unusual” and are

commonly owned for lawful purposes.

He further found Proposition 63 “struck at the core right of law-abiding citizens to

self-defend by banning LCM possession within the home,” using the acronym for

“large-capacity magazine.”

The state’s “compelling interest” in mitigating gun violence was not narrowly

tailored by “a statewide blanket ban on possession everywhere and for nearly

everyone.” As such, Proposition 63 was not the “least restrictive means” of

preventing mass casualties, Lee wrote.


Lee affirmed U.S. District Judge Roger Benitez’s decision last year granting

summary judgment in favor of gun owner Virginia Duncan and the California

Pistol & Rifle Association. Benitez found gun magazines over 10 rounds are

commonly owned “by law-abiding responsible citizens for lawful uses like self-


In his order striking down the law, and during a four-hour court hearing in 2018,

Benitez referenced women’s need to be able to protect themselves from home

intrusions and rape as a reason California residents needs access to high-capacity

gun magazines.

His sentiment was echoed by U.S. Circuit Judge Consuelo Callahan, a George W.

Bush appointee, during the virtual Ninth Circuit hearing on the case this past April.

U.S. District Judge Barbara Lynn, a Bill Clinton appointee sitting by designation

from the Northern District of Texas, wrote in a 14-page dissent that her colleagues’

order conflicts with legal precedent set by the Ninth Circuit and sister courts

regarding high-capacity gun magazines.

In a statement on its website, California Rifle & Pistol Association president and

general counsel Chuck Michel called the order a “major victory for the Second

Amendment, both in California and across the country.”

“This is a huge win specifically for the right to possess these valuable self-defense

tools. But more generally, this case may present the Supreme Court with an

opportunity to set things straight on the underlying issue of what the standard of

review test should be when considering any Second Amendment challenge,”

Michel said. 

In a statement, California Atty. General Xavier Becerra’s Office said they are

“carefully reviewing the decision, with the goal of protecting public safety.”

“The attorney general remains committed to using every tool possible to defend

California’s gun safety laws and keep our communities safe.”

Lee found California’s law imposed a substantial burden on the right to self-

defense, making half of all 230 million gun magazines in America illegal to own in

the Golden State including ammunition which comes standard on Glocks, Berettas

and other handguns “that are staples of self-defense.”

Unlike waiting period laws and other limitations the state has enacted to mitigate

gun violence, Lee found Proposition 63 “went too far.” He suggested had the law

contained a grandfather clause for those who already owned high-capacity


magazines or carve-outs for those in rural parts of the state who may need access to

the weapons, it may have passed constitutional muster.

“Many Californians may find solace in the security of a handgun equipped with an

LCM: those who live in rural areas where the local sheriff may be miles away,

law-abiding citizens trapped in high-crime areas, communities that distrust or

depend less on law enforcement, and many more who rely on their firearms to

protect themselves and their families. California’s almost blanket ban on LCMs

goes too far in substantially burdening the people’s right to self-defense,” Lee


The ban was also unconstitutional because it outlawed weapons “typically

possessed” by law-abiding citizens, according to Lee.

“This is the antithesis of unusual,” Lee wrote, listing the history of semiautomatic

and multishot firearms dating back to 1580 while noting they “were not novel or

unforeseen inventions to the Founders.”

“The historical prevalence of firearms capable of holding more than 10 bullets

underscores the heritage of LCMs in our country’s history,” Lee wrote, mooting

the need for the court to evaluate their dangerousness when ruling on the

constitutionality of Proposition 63.

In a footnote, Lee noted statistics submitted in the court record show criminal use

of high-capacity magazines was relatively low when compared to their market


The weapons were used 31 times between 1982 and 2012 in shootings in the

United States where four or more people were killed, according to the ruling.

Reading like an American history book, Lee’s opinion also connected the right to

“defend hearth and home” with the Civil Rights movement.

“Our country’s history has shown that communities of color have a particularly

compelling interest in exercising their Second Amendment rights,” Lee noted,

pointing to Martin Luther King Jr. owning firearms and hiring armed men to guard

his house during the Montgomery bus boycott in 1956, despite his commitment to


Presently, Asian Americans have become targets of physical attacks during the

Covid-19 pandemic, Lee noted, quoting a woman who said she purchased a gun to

protect her daughter.


Other protected groups including women and LGBTQ people could likewise need

to arm themselves to prevent domestic violence and hate crimes, Lee wrote.

“The Second Amendment is a fundamental constitutional right guaranteed to the

people — especially those who may not be equally protected by the state,” Lee


“The state could ban virtually anything if the test is merely whether something

causes social ills when someone other than its lawful owner misuses it. Adopting

such a radical position would give the government carte blanche to restrict the

people’s liberties under the guise of protecting them,” he added.

In a statement reacting to the ruling, U.S. Senator Dianne Feinstein, D-Calif., had

harsh words for Lee.

“The judge who authored the opinion was Ken Lee, who promised last year at his

nomination hearing to respect precedent. When asked by Chairman [Lindsey]

Graham, ‘When there is a precedent on point, whether you like it or not, you are

going to apply it, right?’ Judge Lee answered succinctly: ‘Yes.’ Today, he proved

his answer was hollow,” Feinstein said.

“I’m shocked a three-judge panel of the Ninth Circuit today overturned

California’s ban on high-capacity ammunition magazines, which hold 10 rounds or

more. This decision runs contrary to at least seven separate federal court decisions

and should be reviewed by a full 11-judge panel of the Ninth Circuit,” Feinstein


She also offered Lee a history lesson of her own.

“There is no civilian need for the 100-round magazine used last year in Dayton,

where 41 rounds were fired in 32 seconds, killing nine. Or the 33-round magazines

used in 2011 in Tucson, where six were killed and 13 injured, including

Congresswoman Gabrielle Giffords. Or any other magazine of 10 rounds or more.

These tools of war don’t belong on our streets,” she said.

While Judge Lynn agreed with her colleagues that Proposition 63 does burden the

Second Amendment, she wrote in her dissent that it does not place a “substantial

burden” on Californians’ constitutional rights because the law does not restrict the

number of magazines a person can own and their firearms are not “rendered

inoperable” by not being used with high-capacity magazines.


“The prohibition on LCMs is more analogous to a restriction on how someone

exercises their Second Amendment rights, by restricting the number of bullets a

person may shoot from one firearm without reloading,” Lynn wrote.

Courthouse News.

(661) 488-8149

Charging BigHorn is a digital media publication providing clear, fair and current news, information and commentary about Inglewood, the Los Angeles metropolitan area of California, and the world.

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