9th Circuit to reconsider California ban on high-capacity magazines

I thought they decided in this awhile back. Maybe they just issued a stay?

Look, we knew this was coming. It's the 9th Circuit Court after all, criminy.

The 9th Circus Court.

As usual.... The show MUST go on.

I'm surprised they allowed the case to be heard before a mere three judge panel in the first place. That might have been a gambit *allowing* the ruling - in order to keep it out of the U.S.S.C. for the short term back in August.

Todd.

I think the 9th Circuit was one of the Circuits that Trump was able to flip by getting conservatives judges approved. I could be wrong, but if it is, we have a chance to win. With other circuits going the other way, it could be headed to the Supreme Count for resolution. If Roberts gets out of the way and isn't blackmailed by the Dims, we would have a good chance.

ClemY said:

If Roberts gets out of the way and isn't blackmailed by the Dims, we would have a good chance.

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He, and Kava-naught! So much for being a *staunch Conservative* in either case.

Todd.

ClemY said:

I think the 9th Circuit was one of the Circuits that Trump was able to flip by getting conservatives judges approved

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Well, sorta:

https://www.latimes.com/california/story/2020-02-22/trump-conservative-judges-9th-circuit

Democratic appointees still make up the majority of active judges — 16 to 13. But the court also has judges on “senior status” who continue to sit on panels that decide cases. Senior-status rank gives judges more flexibility but allows them to continue to work, even full time.

Of the senior judges who will be deciding cases on “merits” panels — reading briefs and issuing rulings — 10 are Republicans and only three are Democratic appointees, Smith said.

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The New Administration sent them their decision.

Aim1 said:

I was hoping they would decline and it could more quickly get routed to SCOTUS.

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State of CA applied for the en banc to appeal the 3 judge ruling.
Had 9th Circus declined the case, it would have gone back to the previous decision, and the mag ban would be out.

SCOTUS can hear about 800 cases a year, about 3000 get sent to them appealing for a certiori. A lesser court denying to hear an internal case is an excellent reason to "rely" on that local court to make a decision based in the local interest. Which means a hard pass by SCOTUS.

Now, if en banc rules in favor of CA, that decision can then be appealed to SCOTUS.
But, that will be complicated.
First 9th Circus represents more States than just CA, so its "reach" is much wider.

So, if 9th upholds the view of Benitez et al, then the mag ban is unconstitutional. Which puts a kibosh on mag limits in CA, OR, and WA and the other States in the 9th's purview. Which is middling huge. Also the other Circuits are informed by each other.

If en banc over-rules Benitez et al, then Duncan et al, have an excellent case to take to SCOTUS, if they select to do so. Which will be a can of worms. This as Justices Callahan & Lee have made a cogent case that this is a 2nd Amendment Strict Scrutiny issue as well as an administrative issue within CA.

The ruling being appealed is interesting reading (if deep in legal procedure)
Link: https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/14/19-55376.pdf
Snip:

16 DUNCAN V.BECERRA
ANALYSIS
The state of California5 argues that the district court erred by granting summary judgment for the Owners. We disagree with the government’s position, and we affirm. California Penal Code section 32310 severely burdens the core of the constitutional right of law-abiding citizens to keep and bear arms. The statute is a poor means to accomplish the state’s interests and cannot survive strict scrutiny. But even if we applied intermediate scrutiny, the law would still fail.
The Second Amendment is a fundamental right rooted in both text and tradition.The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. In 2008, the Supreme Court held that the Second Amendment protects “an individual right to keep and bear arms.” Heller, 554 U.S. at 595. The Court later incorporated the Second Amendment to the states through the Fourteenth Amendment’s Due Process Clause. McDonald v. City of Chicago, 561 U.S. 742, 767 (2010). A citizen’s right to self-defense, the Court held, 5 This opinion will also use the terms “the state” or “the government” to refer to the Defendant-Appellant. 6 We note that the district court’s “simple Heller test” conflicts with our court’s two-step inquiry framework for the Second Amendment. See infra at II.A. We are aware of the criticism that the two-step test “appears to be entirely made up” and that “its application has yielded analyses that are entirely inconsistent with Heller.” Rogers v. Grewal, 590 U.S. ___ at 3 (June 15, 2020) (Thomas, J., dissenting from denial of certiorari). But we must follow this court’s precedent.

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Pretty much expected them to rehear it. Looks like they have decided to.
It will be interesting to see if CA looses if they want to try to take it higher.
It is my understanding if we loose California Rifle and Pistol Association intends to try to take it to SCOTUS, if that happens I hope they take the case.
Bad news if we were to go to SCOTUS and loose but sooner or later this needs to be decided.

Aim1 said:

A single case that contained both assault weapons ban and high capacity magazines would be a better case, no?

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Potentially.
However, if en banc upholds the previous 9th opinion, Beccara really does not have grounds for further appeal, for having lost twice in the same venue, and in the face of the scrutiny of 11 judges. That's not very good grounds for counting on a hearing in SC. Also, having the right to unfettered access to magazines affirmed in the entire 9th (CA, AZ, NV, ID, WA, & OR) is likely a big domino to tip over. Which is likely to ripple into 1st, 3rd, & 7th circuit States with mag bans.

By making a Strict Scrutiny finding against Beccara, there is a renewal of the "in common use" doctrine about which firearms can be kept and borne. It would be a great arrow for the quiver against the AW bans out there. Especially when they are merely about appearance and not function.

So, winning this is a win. One we need.

A single case that contained both assault weapons ban and high capacity magazines would be a better case, no?

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Maybe maybe not.
My feeling is best to keep them separate, since for example the mag issue can apply to pistols as well, while related they are two different things.
We don't know how the 9th will decide the 2nd time around.
We might win (best outcome) in which case I can see other states asking CA not to try to take it to SCOTUS. (assuming SCOTUS would even take it if the 9th has decided in our favor twice)
A win the 2nd time in the 9th would help all the people in the 9ths area but not people in other states that are not part of the 9th. (other than setting a precedent, which could be important)

I personally hope that those DON’T make it to the U.S. Supreme Court. All it would take is an idiotic ruling against those to mess it up forever for the whole country. Right now, it only affects things locally in those affected states, with the possibility of those rulings being overturned to the side of good at some point. The U.S. Supreme Court staying out of the silliness of “10 vs 11 rounds in a magazine” relegates that whole issue to a lower level of silliness, which is where that whole thing belongs, and hopefully in the dustbin of history for those states so affected when they eventually (hopefully) come around.

CapnMac, thanks for linking the ruling, I had read it shortly after it came out but others might enjoy reading it.
Worthwhile IMO

I remember when the ban was ruled unconstitutional by Benitez, I think on a late Friday before a holiday weekend, so CA residents had all weekend to "shop til you drop" for all the standard cap magazines they could find. They damn near cleaned out just about every online vendor in a matter of a couple days. It was pretty hilarious to watch. That same weekend PSA was having their sale on D&H 30 round 5.56 magazines for $7.99 each so I ordered a few more early on, had I waited I would have been SOL.

Well I hope it works out for the CA gun owners. The ban is stupid and accomplishes nothing other than back door gun control.

I hope they take it, the 9th Circuit I mean, since they may get it right.
The more that cases are decided, then there will be that much more case law.
They may overturn the ban, and that will complicate things, on the side of gun ownership. Who knows.

What is interesting is that in the 9th for an en blanc we don't get all of the Justices, just 11.
Name Status Chambers Appointed By
Sidney R. Thomas Chief Judge Billings Clinton D
Susan P. Graber Circuit Judge Portland Clinton D
M. Margaret McKeown Circuit Judge San Diego Clinton D
Kim McLane Wardlaw Circuit Judge Pasadena Clinton D
William A. Fletcher Circuit Judge San Francisco Clinton D
Ronald M. Gould Circuit Judge Seattle Clinton D
Richard A. Paez Circuit Judge Pasadena Clinton D
Marsha S. Berzon Circuit Judge San Francisco Clinton D
Johnnie B. Rawlinson Circuit Judge Las Vegas Clinton D
Consuelo M. Callahan Circuit Judge Sacramento Bush R
Milan D. Smith, Jr. Circuit Judge El Segundo Bush R
Sandra S. Ikuta Circuit Judge Pasadena Bush R
Mary H. Murguia Circuit Judge Phoenix Obama D
Morgan Christen Circuit Judge Anchorage Obama D
Jacqueline H. Nguyen Circuit Judge Pasadena Obama D
Paul J. Watford Circuit Judge Pasadena Obama D
Andrew D. Hurwitz Circuit Judge Phoenix Obama D
John B. Owens Circuit Judge San Diego Obama D
Michelle T. Friedland Circuit Judge San Jose Obama D
Mark J. Bennett Circuit Judge Honolulu Trump R
Ryan D. Nelson Circuit Judge Idaho Falls Trump R
Eric D. Miller Circuit Judge Seattle Trump R
Bridget S. Bade Circuit Judge Phoenix Trump R
Daniel P. Collins Circuit Judge Pasadena Trump R
Kenneth Kiyul Lee Circuit Judge San Diego Trump R
Daniel A. Bress Circuit Judge San Francisco Trump R
Danielle J. Hunsaker Circuit Judge Portland Trump R
Patrick J. Bumatay Circuit Judge San Diego Trump R
Lawrence VanDyke Circuit Judge Reno Trump R
16 D 13 R

I believe we get the Chief Judge, So that's one against before we even have the other 10. (assuming party line vote)
It will be interesting to see if it splits on party who appointed the Justice, maybe maybe not but likely.

If the 9th federal circuit court decides against the California ban on standard capacity magazines after the Vermont State Supreme Court has upheld that state's over-10 round ban, does that kick the ball to the US Supreme Court's court?

The judge's arguments that the large capacity magazine ban doesn't inhibit criminal misuse but does inhibit lawful self-defense is remarkably like the findings of the separate reviews of criminalogical research on the eve of the 2004 sunset of the 1994 Federal AWB conducted by Center for Disease Control and the National Research Council: they found no peer reviewed empirical research demonstrating an impact on criminal behavior by any of the gun control policies studied.

How is public safety served by creating malum prohibitum gun crimes when gun control does not inhibit malum in se violent criminal misuse of guns?

I think they mean 'standard capacity' magazines.

Let's look again at the reports of no impact of the AWB on crime. I was there when this was reported at the American Society for Criminology.

The scholars found no impact of the bans. However, gun folks say this is evidence that bans don't work and should be abandoned as a crime control measure.

But - the reasons for the ban's failure was reported to be:

1. The existing stock of preban weapons and mags was sufficient to supply criminal needs.
2. As far as the guns, as we all know the bans were just cosmetic and many new ARs were produced without the features as were Mini-14s. Thus they were available for usage. The existing large stocks of higher capacity mags serviced them.

3. Thus, they recommended strict laws taking out all the semis, confiscation for the guns and similar confiscation of the mags.

As far as the limits on self-defense - that's a tricky one as how many times have we heard here that it's 3,3,3 or 5 is enough. If you carry more, or an extra mag, you are a nut. Some gun folks think the average always happens (as they don't understand distributions) and say such counterproductive utterances.

Hawaii is in the 9th, so this would ripple right through them as well, many court challenges to be sure, so even if we win, wouldn't Hawaii challenge it as it upsets their applecart pretty thoroughly?
@TheBruce - Arf went nuts during that week - all standard cap mag sales were redirected to CA residents, and many mags were gifted to CA residents. It was a glorious show indeed.

Dudedog said:

I believe we get the Chief Judge, So that's one against before we even have the other 10. (assuming party line vote)
It will be interesting to see if it splits on party who appointed the Justice, maybe maybe not but likely.

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The Circuit Courts develop their own "leanings" often without regard to the Party of who appointed them.
9th Circus has been leaning to "the right" one judge at a time over the last decade. Some of that is new appointees, some of that are judges being not fixed to a political party.

Carl N. Brown said:

If the 9th federal circuit court decides against the California ban on standard capacity magazines after the Vermont State Supreme Court has upheld that state's over-10 round ban, does that kick the ball to the US Supreme Court's court?

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Not necessarily. Different Circuits commonly have opposing judicial stances on issues.
Where people live at the border of two Circuits, this creates situations which much needs SCOTUS attention, for being the one authority that can "span" two Circuits.
If a divide between two circuits is wide or significant enough, SCOTUS can act pre-emptively (although this is under-common).

Paul7 said:

I think they mean 'standard capacity' magazines.

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The Opinion uses LCM (large capacity magazine) as a "term-of-art," a singular definition within the argument for the purposes of brevity. It does not impose any legal definition upon the term in question.

In this case, they lifted the terminology from the original CA legislation--and continued with that for the sake of continuity through the entire process. Yes, they could have used AFD, ammunition feeding device, but would have had to continually refer back to the terminology in the CA statute. Which creates a potential for failing to fully cross-reference, which can then create a procedural error that might sink the case.

armoredman said:

Hawaii is in the 9th, so this would ripple right through them as well, many court challenges to be sure, so even if we win, wouldn't Hawaii challenge it as it upsets their applecart pretty thoroughly?
@TheBruce - Arf went nuts during that week - all standard cap mag sales were redirected to CA residents, and many mags were gifted to CA residents. It was a glorious show indeed.

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Hawaii took the open carry case before the 9th last year or so and got trounced, thats going to en banc as well tho i dont know when.
Weve got a rifle mag ban law being pushed right now, but it seems unlikely to get thru...... interesting times.....