What are the chances of this surviving appeal to the 9th Circuit?
Slim to none.
"Slim to none"? How can you say that if you read judge Benitez order?
Judge Benitez explained in the 86 page order why ban on higher capacity than 10 round magazines is unconstitutional and fails the criteria 9th Circuit would use and wrote,
"...
the Ninth Circuit uses a sliding scale. [O]ur test for the appropriate level of scrutiny amounts to ‘a sliding scale.' ...
A law that imposes such a severe restriction on the fundamental right of self-defense of the home that it amounts to a destruction of the Second Amendment right is unconstitutional under any level of scrutiny ... law that implicates the core of the Second Amendment right and severely burdens that right warrants strict scrutiny ... Strict scrutiny requires the Government to prove that the restriction on a constitutional right furthers a compelling interest and is narrowly tailored to achieve that interest ... This is the case here ... California’s ban on magazines able to hold more than 10 rounds fails strict scrutiny."
"First, a court must evaluate the burden and then apply the correct scrutiny.
a. burden & scrutiny - First, a court must evaluate the burden and then apply the correct scrutiny ... This two-step inquiry: '(1) asks whether the challenged law burdens conduct protected by the Second Amendment; and (2) if so, directs courts to apply an appropriate level of scrutiny.'
b. presumptively lawful or historical regulation - In determining whether a given regulation falls within the scope of the Second Amendment under the first step of this inquiry, another two-step test is used ...
Section 32310 fails both parts of the test. A complete ban on ammunition magazines of any size is not one of the presumptively lawful regulatory measures identified in Heller. As discussed, neither is there any evidence that magazine capacity restrictions have a historical pedigree.
c. closeness to the core and severity of the burden - If the constitutional inquiry may continue, then the correct level of scrutiny must be selected ... Heller says the core of the Second Amendment is the right of law-abiding, responsible citizens to use arms in defense of their home. Guided by this understanding, for selecting the appropriate level of judicial scrutiny,
the Ninth Circuit uses a sliding scale. [O]ur test for the appropriate level of scrutiny amounts to 'a sliding scale.' ...
A law that imposes such a severe restriction on the fundamental right of self-defense of the home that it amounts to a destruction of the Second Amendment right is unconstitutional under any level of scrutiny. ... This is the case here
d. the sliding scale of scrutiny – strict scrutiny - Further down the scale, a
law that implicates the core of the Second Amendment right and severely burdens that right warrants strict scrutiny ... Strict scrutiny requires the Government to prove that the restriction on a constitutional right furthers a compelling interest and is narrowly tailored to achieve that interest ...
California’s ban on magazines able to hold more than 10 rounds fails strict scrutiny.
e. intermediate scrutiny - Even under the lowest formulation of heightened scrutiny, intermediate scrutiny, Section § 32310 fails because it is not a reasonable fit ... Section 32310 is not narrowly tailored; it is not tailored at all. It fits like a burlap bag. It is a single-dimensional, prophylactic, blanket thrown across the population of the state. As such,
§ 32310 fails strict scrutiny and violates the Second Amendment."
And concluded,
"Magazines holding more than 10 rounds are 'arms.' ... Accordingly, based upon the law and the evidence, upon which there is no genuine issue, and for the reasons stated in this opinion, Plaintiffs’ motion for summary judgment is granted. California Penal Code § 32310 is hereby declared to be unconstitutional in its entirety and shall be enjoined."
And enjoined is "prohibit someone from performing (a particular action) by issuing an injunction (order)".
