October 15, 2020 By Wallin & Klarich

In August of 2020, a divided panel of the Ninth Circuit Court of Appeals decided in the case of Duncan v. Becerra that the Second Amendment bans the state of California from prohibiting (under California Penal Code section 32310) the sale of large-capacity ammunition magazines (LCM), which are defined as magazines that hold more than ten rounds of ammunition.  The law was enacted to address the issue of gun violence in which firearms that held more than ten rounds of ammunition were used. 

For decades, California has imposed a number of restrictions on ownership of certain types of firearms, including assault-style weapons. This is the first time when a court has invalidated a law relating to such what many argue as a reasonable regulation. 

In its analysis, the court decided that the law did impose a burden on rights protected under the Second Amendment. Specifically, the court stated that firearm magazines are “protected arms” under the Constitution.

Secondly, they held that LCMs are not “unusual firearms” that would not normally be protected under the Second Amendment. Third, it was decided that the law is not presumed to be lawful. Finally, the court held that there was no persuasive evidence that possession of LCMs was not protected by the Second Amendment. 

The court took a number of factors into consideration, including whether or not the law imposed a burden on constitutionally protected conduct. The court also analyzed the law under a standard referred to as “strict scrutiny,” which requires the following: 

  • That the law/regulation is necessary to satisfy a “compelling state interest”; 
  • That the law/regulation is “narrowly tailored” to meet that purpose, and; 
  • That the law/regulation uses the “least restrictive means” in order to accomplish that purpose.

While the court did find that Penal Code section 32310 did address a compelling state interest in addressing the problem of gun violence, they also found that the law was not narrowly tailored because it imposed a statewide ban on everyone who owned LCMs and therefore, was not the least restrictive means of achieving the law’s stated purpose. 

While this holding may hold some relief to owners of LCMs, it also serves to illustrate a larger point. Over the last few decades, the state of California has become more progressive in its approach to public safety, especially when it comes to crimes involving firearms. This decision, while it can be overturned, is an indicator of the reality that our current president has not only a “pro-gun” agenda but serves to remind us that he also has the ability to nominate judges to the federal appellate courts that may swing the balance of the court significantly to a more conservative viewpoint. Given that the United States Senate (in which conservatives currently hold the majority,) is the entity that is constitutionally empowered to approve those who are nominated to the federal courts, it bears serious consideration of the far-reaching impact of those confirmations.

Federal judges, once they are confirmed by the Senate, do not need to be re-confirmed at any point, as they are appointed for life and cannot be removed unless they are impeached. This is something that needs to be considered when voting for those who are standing for election to office.

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