In Duncan v. Bonta, published November 30, 2021, a divided en banc panel reversed a grant of summary judgment to plaintiffs challenging the State of California's amendment of Penal Code section 32310 to prohibit possession of large-capacity magazines, defined as those that can hold more than ten rounds of ammunition. The ban exempts certain persons, such as law enforcement officers, security guards, and makers of props for film. Owners of large-capacity magazines are required to remove the magazine from the state, sell it to a licensed arms dealer, or surrender the magazine to a law enforcement agency for destruction. The plaintiffs challenged the statute as violating the Second Amendment, the Fifth Amendment's Takings Clause, and the Fourteenth Amendment's Due Process Clause.
Addressing the Second Amendment challenge, the en banc panel majority applied the two-step framework set forth in the U.S.U.S. Supreme Court's decision in District of Columbia v. Heller. Under the framework, the court first determines whether the challenged law affects conduct that the Second Amendment protects; if so, the court determines the level of scrutiny to apply. The court assumed (without deciding) that the Second Amendment's protection applied. Joining other circuits, the court applied an intermediate level of scrutiny, because the ban imposed only a minimal burden on the Second Amendment right to keep and bear arms. Under that scrutiny, the majority held that the statute was a reasonable fit for the important government interest of reducing gun violence. The statute did not outlaw any weapons. The majority further determined that the limitation interferes minimally with the core right of self-defense, due to lack of evidence anyone had been unable to defend home and family due to the lack of a large-capacity magazine. The majority also determined that the limitation saved lives, since in the past half-century large-capacity magazines have been used in most shootings with 10 or more deaths and in 100 percent of shootings with 20 or more deaths. More than twice as many people have been killed or injured in mass shootings involving large-capacity magazines compared with those involving smaller-capacity magazines. The ban therefore reasonably supported California's efforts to reduce the damage caused by mass shootings. The majority further ruled that the statute on its face does not effect a taking, because the government acquires nothing by limiting magazine capacity, and because owners may modify or sell their nonconforming magazines they are not deprived of all economic use of the magazines. The due process claim essentially restated the takings claim, and failed for the same reason.
Three dissenting judges opined that the court should apply an analysis based on the text, tradition, and history of the Second Amendment, rather than the tiers-of-scrutiny approach. Under that analysis, the dissenters opined, the long history of use of large-capacity magazines (including use at the time the nation was founded), the fact they number in the millions, and the lack of longstanding prohibitions against them establish they are entitled to Second Amendment protection.
Another dissenting judge opined that Ninth Circuit case law, including this case, showed a distrust of gun owners and did not accord proper protection to Second Amendment rights.
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