Federal Appeals Court Rules California’s Magazine Ban Unconstitutional

The 9th Circuit Court of Appeals says magazine capacity limits are unconstitutional. (Photo: GunsAmerica)

Update from the National Shooting Sports Foundation:

Duncan v. Becerra – Important Industry Advisory 

We have been asked by California retailers, distributors and ammunition magazine manufacturers across the industry whether Friday’s landmark decision by the U.S. Court of Appeals for the 9th Circuit in Duncan v. Becerra means they can now sell to California consumers, ship to California retailers or manufacture in the state for commercial sale in the state ammunition magazines capable of holding more than 10 rounds of ammunition (so-called “Large Capacity Magazines” or LCM).  The short answer is “NO.”

While the holding in Duncan is a tremendous victory for the Second Amendment, members of the industry should continue to refrain from selling or shipping into California LCMs until after the appeal proceeding is concluded or the stay is modified or lifted. This is because the U.S. District Court’s Order Staying In Part Judgment Pending Appeal, dated April 4, 2019, remains in effect “pending final resolution of the appeal from the Judgment.” The appellate proceedings have not concluded or been finally resolved, so the stay remains in place.

Stay tuned. NSSF will update you on developments, including when the appeal is over and you can sell standard-sized magazines in California.

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The West Coast-based 9th Circuit Court of Appeals issued a ruling affirming an earlier decision that declared California’s 10-round magazine capacity limit unconstitutional. The decision said that “large-capacity magazines” are protected by the Second Amendment.

“California’s law imposes a substantial burden on this right to self-defense,” wrote Judge Kenneth Lee in the opinion. “The ban makes it criminal for Californians to own magazines that come standard in Glocks, Berettas, and other handguns that are staples of self-defense.”

“Its scope is so sweeping that half of all magazines in America are now unlawful to own in California,” Lee continued. “Even law-abiding citizens, regardless of their training and track record, must alter or turn over to the state any LCMs that they may have legally owned for years — or face up to a year in jail.”

“It makes unlawful magazines that are commonly used in handguns by law-abiding citizens for self-defense,” he said. “And it substantially burdens the core right of self-defense guaranteed to the people under the Second Amendment. It cannot stand.”

The Firearms Policy Coalition, which filed a brief in the case, “Strongly supports this lawsuit and filed an important legal and history brief in support of the plaintiffs at the 9th Circuit,” said the FPC in a statement.

“[Our] brief argued that so-called “large-capacity” magazines are inherent components of functional firearms, that such magazines are ‘in common use’ for lawful purposes, and are constitutionally protected.

“A weapon that is ‘unusual’ is the antithesis of a weapon that is ‘common,'” argued the FPC. “Thus, an arm ‘in common use’ cannot be ‘dangerous and unusual’ and is therefore protected.”

See Also: SAF Joins Amicus Brief Challenging California Ammo Check

“While this was not our case, this is a victory for all gun owners and the majority opinion reflects our arguments in an amicus brief we submitted along with several other organizations,” said the Second Amendment Foundation’s Alan Gottlieb. “Most importantly, the panel majority used strict scrutiny to make its determination, and that is a huge milestone.”

“The 9th Circuit, led by a Trump-appointed judge, rules that ban on magazines with more than 10 rounds is unconstitutional,” said the NRA in a statement. “This case will have repercussions nationwide.”

The 2-1 ruling may be pushed into higher courts for more deliberation. And part of the court’s April 2019 stay remains in effect, which creates some confusion for would-be magazine buyers and existing owners of legally purchased magazines with larger than 10-round capacities.

While the court agrees that the magazine ban is unconstitutional, there are still older laws on the books that will need to be addressed concerning the manufacture, transfer or importation of these magazines in California once the final appeal of the original judgment is heard.

***Buy and Sell on GunsAmerica! All Local Sales are FREE!***

About the author: Max Slowik is a writer with over a dozen years of experience and is a lifelong shooter. He has unwavering support for the Second Amendment and the human right to self-defense. His ambition is to follow Thomas Paine, as a journalist by profession and a propagandist by inclination.

{ 5 comments… add one }
  • Rojas August 17, 2020, 10:34 pm

    RTG Parts is shipping mags to CA

  • Michael J August 17, 2020, 6:46 pm

    I find our court system to be a system of road blocks, a tool used by the state’s Attorney General when an unfavorable outcome of any state law is overturned. In California when an unconstitutional/illegal measure passes, it still becomes law. Enter the court system, this is where the last word is never final. Outlawing high capacity magazines was cleverly orchestrated by the state, though ruled unconstitutional in lower courts, then as expected overturned or stayed by higher courts, but ultimately did the state finally lose? The magazine victory seems shallow since ammunition is what fills it. Now, “We the People” have another unconstitutional law that the state has successfully stayed. Overturning an unconstitutional government ruling is very satisfying. We have many to go.

  • skipNclair August 17, 2020, 1:18 pm

    What took so long? Any ban, any law, any legislation that infringes on the 2nd amendment or any other is illegal and should be ignored and it is your duty to defy it. Read the quotes of Thomas Jefferson and other forefathers on this. Who knows more about the Constitution than them? Remember this as a reference Marbury VS Madison 1803. And for those that believe you need a permit to conceal carry your as guilty as them that wish in infringe.

    • I Love Freedom August 20, 2020, 2:07 pm

      Concealed weapon permits are a form of gun registration also in my opinion.

  • Mark N. August 15, 2020, 1:41 am

    There is no confusion as to existing owners of large capacity magazines: the stay issued by the trial court prohibits any prosecution for the possession of such magazines pending appeal. But the stay also allowed the ban on the sale of such magazines to remain in place, and that is wherein lies the confusion. Is it legal to now sell such magazines in California? Some dealers are saying yes, including Brownells, and are selling to California buyers. Others are taking orders but not shipping until “the other shoe drops.” The other shoe has one or two components. One, the Ca Atty Gen may ask for a stay of the ruling in the court of appeals pending an application for en banc review, or it may simply file its application as soon as Monday, relying on the original trial court stay to preclude sales. We will know that answer very shortly, because the AG is not likely to let this matter sit around.

    There is a third possibility, and that is that the Court of Appeals will call for en banc review on its own motion, which, in 2A cases, has happened more than once. The current Chief Judge of the Ninth Circuit is vehemently anti-gun, and has worked on at least two cases that have reversed panel decisions by conservative judges. One of those cases was Peruta (cert den.) in which the en banc panel held that there is no right to carry a concealed firearm even though, during the period the case was pending, California banned open carry in all urban areas. The combination means that in most large urban areas, where residents cannot typically obtain CCWs, exercise of the 2A is essentially banned. Chjief Judge Thomas ws very pleased with himself about that, but in another case, he has to figure out how to uphold the open carry ban as not violative of the 2A. He will seek to do the same with this ruling. If anyone wants to see how that ruling will go–assuming Thomas gets a majority–is detailed in the dissent of this 2-1 decision.

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