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
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
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
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,”
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.