Duncan vs. Bonta
Duncan vs. Bonta
FOR PUBLICATION
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SUMMARY *
Second Amendment
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
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The court held that section 32310 does not, on its face,
effect a taking. The government acquires nothing by virtue
of the limitation on the capacity of magazines, and because
owners may modify or sell their nonconforming magazines,
the law does not deprive owners of all economic use.
Plaintiffs’ due process claim essentially restated the takings
claim, and it failed for the same reasons.
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COUNSEL
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OPINION
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A. Large-Capacity Magazines
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B. California’s Ban
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Id. § 32310(d).
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C. Procedural History
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DISCUSSION
1
In a footnote, Plaintiffs state that summary judgment was proper
in their favor on the due process claim “[f]or all the same reasons” that
apply to the takings claim. Because we reject the takings claim, we reject
the due process claim.
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2021) (en banc), petition for cert. filed, (U.S. May 11, 2021)
(No. 20-1639). We first ask “if the challenged law affects
conduct that is protected by the Second Amendment.” Id. If
not, then the law is constitutional, and our analysis ends. Id.
If, on the other hand, the law implicates the Second
Amendment, we next choose and apply an appropriate level
of scrutiny. Id. at 784. Ten of our sister circuits have
adopted a substantially similar two-step test. Gould v.
Morgan, 907 F.3d 659, 668–69 (1st Cir. 2018), cert. denied,
141 S. Ct. 108 (2020); NYSRPA, 804 F.3d at 254;
GeorgiaCarry.Org, Inc. v. U.S. Army Corps of Eng’rs,
788 F.3d 1318, 1322 (11th Cir. 2015); see Young, 992 F.3d
at 783 (listing cases from the Third, Fourth, Fifth, Sixth,
Seventh, Tenth and D.C. Circuits that apply a similar two-
step framework).
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Friedman, 784 F.3d 406; Heller II, 670 F.3d 1244; see Fyock
v. City of Sunnyvale, 779 F.3d 991 (9th Cir. 2015) (affirming
the denial of a preliminary injunction in a case in which the
plaintiffs challenged a municipal ban on large-capacity
magazines). Most of those decisions applied the same
general two-step approach that guides us and reached the
same conclusions that we reach. In particular, they assumed
without deciding, at step one, that the law implicated the
Second Amendment; and held, at step two, that intermediate
scrutiny applied and that the ban or restrictions survived that
form of review. Worman, 922 F.3d at 33–40; ANJRPC,
910 F.3d at 116–24; NYSRPA, 804 F.3d at 254–64; Heller II,
670 F.3d at 1260–64; see Fyock, 779 F.3d at 996–1001
(following that same general approach in the context of an
appeal from a preliminary injunction). 2
2
Sitting en banc, the Fourth Circuit reached two alternative holdings
in upholding Maryland’s ban on large-capacity magazines. It first held,
at step one, that bans on large-capacity magazines do not implicate the
Second Amendment. Kolbe, 849 F.3d at 135–37. The court next held,
in the alternative and in accord with the four decisions cited in the text
that, assuming any scrutiny was warranted, intermediate scrutiny applied
and that the ban withstood such scrutiny. Id. at 138–41.
For its part, the Seventh Circuit declined to apply that court’s
ordinary two-step inquiry, holding instead that a municipal ban on large-
capacity magazines was constitutional because those magazines were not
common at the time of ratification, and the ordinance leaves residents
“ample means to exercise the inherent right of self-defense that the
Second Amendment protects.” Friedman, 784 F.3d at 411 (internal
quotation marks omitted).
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3
Worman, 922 F.3d at 36–38; ANJRPC, 910 F.3d at 117–18; Kolbe,
849 F.3d at 138–39; NYSRPA, 804 F.3d at 257–61; Heller II, 670 F.3d
at 1261–62; see Fyock, 779 F.3d at 998–999 (holding that the district
court did not abuse its discretion in applying intermediate scrutiny to a
municipal ban on large-capacity magazines).
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4
Judge VanDyke’s dissent faults us for relying on the rarity of
instances of self-defense that use more than ten bullets while not giving
enough weight to the infrequency of mass shootings, which the dissent
describes as “statistically very rare.” Dissent by J. VanDyke at 160. To
the extent that the dissent concludes that reducing the harm caused by
mass shootings is not an “important” governmental objective at step two
of the analysis, we disagree. Focusing solely on the frequency of mass
shootings omits the second, critical part of the analysis set out below
at pages 42 to 46[C]: the incredible harm caused by mass shootings. We
do not ignore the relative infrequency of mass shootings. We instead
conclude—and Plaintiffs do not dispute—that, considering the
frequency of mass shootings in combination with the harm that those
events cause, reducing the number of deaths and injuries caused by mass
shootings is an important goal. The dissent’s analogy to commercial
flights, [Dissent by J. VanDyke at 161 n.11, is illustrative: Although
accidents involving commercial flights are rare, legislatures recognize
that the serious harm caused by even a single crash justifies extensive
regulation of the industry.
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To the extent that the dissent asks us to balance the interests of the
lawful use of large-capacity magazines against the interests of the State
in reducing the deaths and injuries caused by mass shootings, we
disagree for two independent reasons. First, the Supreme Court
expressly rejected that type of interest balancing. Heller, 554 U.S.
at 634. Second, to the extent that an interest-balancing inquiry is
relevant, we reiterate that Plaintiffs have not pointed to a single
instance—in California or elsewhere, recently or ever—in which
someone was unable to defend himself or herself due to a lack of a large-
capacity magazine, whereas the record describes the many deaths and
injuries caused by criminals’ use of large-capacity magazines during
mass shootings.
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Id. at 629.
5
Judge VanDyke’s dissent suggests that California’s ban on large-
capacity magazines is akin to a ban on all cars or on large vehicles.
Dissent by J. VanDyke at 151–152. But those analogies are inapt. A
ban on large-capacity magazines cannot reasonably be considered a ban
on firearms any more than a ban on leaded gasoline, a ban on
dangerously designed gas tanks, or speed limits could be considered a
ban on cars. E.g., 42 U.S.C. § 7545(n); 49 C.F.R. § 393.67; Cal. Veh.
Code § 22348. Like a ban on large-capacity magazines with respect to
firearms, those laws retain the basic functionality of cars—driving within
reasonable limits—while preventing specific societal harms from known
dangers.
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6
Plaintiffs dispute the reliability of Defendant’s experts and the
underlying data, all of which are identical or similar to the reports and
data that our sister circuits have cited. E.g., ANJRPC, 910 F.3d at 121;
Kolbe, 849 F.3d at 124 n.3. We conclude that the evidence is sufficiently
reliable for purposes of weighing California’s legislative judgment.
Pena, 898 F.3d at 979–80.
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shots fired was 99.” More than twice as many people were
killed or injured in mass shootings that involved a large-
capacity magazine compared to mass shootings where the
shooter had magazines with a smaller capacity. One expert
looked solely at fatalities and the deadliest mass shootings
(those with at least six deaths), and he discovered that the
number of fatalities from mass shootings that involved a
large-capacity magazine was at least 50% greater than the
number of fatalities from those shootings that involved
smaller magazines. “Moreover, since 1968, [large-capacity
magazines] have been used in 74 percent of all gun
massacres with 10 or more deaths, as well as in 100 percent
of all gun massacres with 20 or more deaths.”
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B. Takings Claim
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7
Judge Bumatay’s dissent begins by asserting that, “[i]f California’s
law applied nationwide, it would require confiscating half of all existing
firearms magazines in this country.” Dissent by J. Bumatay at 103. That
dramatic assertion is inaccurate. The government seizes nothing; many
owners are unaffected entirely; and all owners have several choices other
than voluntary relinquishment of large-capacity magazines for
destruction. More specifically, if every state adopted California’s law,
many owners of large-capacity magazines, such as current and retired
law enforcement officers, would be able to keep them. Other owners
would retain many options. For instance, they could modify the
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–And, finally:
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I.
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1
There is no reason to think that “personal motives” such as a
distaste for firearms or a lack of familiarity with firearms influenced the
outcome of this case. Hurwitz Concurrence at 100–103. A judge’s
obligation is to be aware of their biases and vigorously avoid using them
to decide cases, not to bleach their minds, an impossibility. See, e.g.,
Miles v. Ryan, 697 F.3d 1090, 1090–91 (9th Cir. 2012).
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A.
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B.
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2
Confirmation bias refers to the tendency to interpret new
information as confirmation of one’s pre-existing assumptions or
theories. Anchoring bias refers to the tendency to over-rely on the initial
evidence we discover as we learn about a given topic. See id.
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C.
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D.
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3
An unanswered question regarding this interpretation of the
“common use” inquiry is what metric a court should apply when
determining whether a weapon qualifies as in common use. “One can
come to quite a range of conclusions” regarding the prevalence of the
same weapon “depending on whether one calculates common use by
absolute numbers, by absolute dollars, or by the percentage of the
market,” whether that be the market for firearms in general, for the
specific type of firearm at issue, “or for all self-defense technology.”
Blocher & Miller, supra, at 89 (citing Eugene Volokh, Implementing the
Right to Keep and Bear Arms for Self-Defense: An Analytical
Framework and a Research Agenda, 56 UCLA L. Rev. 1443, 1480
(2009)).
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* * *
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II.
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4
The dissents assert that the Second Amendment right has been
treated as if it were “disfavored.” See, e.g., Bumatay Dissent at 111–
112; VanDyke Dissent at 145–146. But in terms of what the Second
Amendment protects, the Supreme Court explained in Heller that the
Second Amendment right has long existed in harmony with reasonable
regulation, and the Court approved a non-exhaustive range of
presumptively lawful regulations, without announcing any criteria for
determining whether non-listed kinds of arms regulations are or are not
lawful. 554 U.S. at 626–27; see also, e.g., Blocher & Miller, supra, at
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185. And there are several prominent examples of state and federal
courts striking down gun regulations that press those indistinct
boundaries. Id. at 185–86; see also Principal Opinion at 41–42.
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III.
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A.
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From the 1960s through the 1980s, the strict scrutiny test
became entrenched in constitutional decisionmaking and
was gradually shaped into the familiar two-part standard that
requires government actors to demonstrate that a statute has
a compelling underlying purpose, and that the statute is
necessary—meaning there are not any less restrictive
alternatives—to achieve the relevant purpose. See, e.g.,
Palmore v. Sidoti, 466 U.S. 429, 432–33 (1984); Regents of
the Univ. of Cal. v. Bakke, 438 U.S. 265, 290–91 (1978);
Loving v. Virginia, 388 U.S. 1, 11 (1967); Harper v. Va.
State Bd. of Elections, 383 U.S. 663, 670 (1966);
McLaughlin v. Florida, 379 U.S. 184, 191–92 (1964);
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B.
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CONCLUSION
1
We use the term “large-capacity magazine” for consistency with
the majority but note that magazines with the capacity to accept more
than ten rounds of ammunition are standard issue for many firearms.
Thus, we would be more correct to refer to California’s ban on “standard-
capacity magazines.”
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I. Factual Background
2
Letter from Richard Henry Lee to Governor Edmund Randolph
(Oct. 16, 1787), https://archive.csac.history.wisc.edu/Richard_Henry_L
ee_to_Edmund_Randolph.pdf.
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3
Boston Gazette, Sept. 5, 1763, reprinted in 3 The Works of John
Adams 438 (Charles F. Adams ed., 1851), in Anthony J. Dennis,
Clearing the Smoke from the Right to Bear Arms and the Second
Amendment, 29 Akron L. Rev. 57, 73 (1995).
4
Scribble-Scrabble, Cumberland Gazette, Jan. 26, 1787, reprinted
in Firearms Law and the Second Amendment: Regulation, Rights, and
Policy, Johnson et al. 300 (2d ed. 2017). Scribble-Scrabble was the pen
name of George Thatcher. See Patrick J. Charles, Scribble Scrabble, the
Second Amendment, and Historical Guideposts: A Short Reply to
Lawrence Rosenthal and Joyce Lee Malcolm, 105 Nw. U. L. Rev. 1821,
1825 (2011).
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5
The majority does not bother to do the hard work of examining the
historical record and merely assumes that the magazine ban infringes on
the Second Amendment. Such an analytical step blinds the majority to
the long historical tradition of weapons capable of firing more than ten
rounds in this country and the exceptional nature of California’s ban
here. Cf. Mai v. United States, 974 F.3d 1082, 1091 (Bumatay, J.,
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dissenting from the denial of reh’g en banc) (“By punting the analysis of
the historical scope of the Second Amendment . . . , we let false
assumptions cloud our judgment and distort our precedent even further
from the original understanding of the Constitution.”).
6
See Young v. Hawaii, 992 F.3d 765, 773 (9th Cir. 2021) (en banc);
United States v. Singh, 979 F.3d 697, 725 (9th Cir. 2020); Mai v. United
States, 952 F.3d 1106, 1115 (9th Cir. 2020); United States v. Torres,
911 F.3d 1253, 1263 (9th Cir. 2019); Pena v. Lindley, 898 F.3d 969, 979
(9th Cir. 2018); Teixeira v. County of Alameda, 873 F.3d 670, 678 (9th
Cir. 2017) (en banc); Mahoney v. Sessions, 871 F.3d 873, 881 (9th Cir.
2017); Bauer v. Becerra, 858 F.3d 1216, 1221 (9th Cir. 2017); Fisher v.
Kealoha, 855 F.3d 1067, 1070–71 (9th Cir. 2017); Fortson v. L.A. City
Attorney’s Office, 852 F.3d 1190, 1194 (9th Cir. 2017); Silvester,
843 F.3d at 827; Wilson v. Lynch, 835 F.3d 1083, 1093 (9th Cir. 2016);
Peruta v. Cnty. of San Diego, 824 F.3d 919, 942 (9th Cir. 2016) (en
banc); Fyock v. City of Sunnyvale, 779 F.3d 991, 999 (9th Cir. 2015);
Jackson, 746 F.3d at 965; Chovan, 735 F.3d at 1138.
7
Once again, our court fails to pay attention to Heller with this type
of analysis. Heller expressly says, “[i]t is no answer to say . . . that it is
permissible to ban the possession of handguns so long as the possession
of other firearms (i.e., long guns) is allowed.” 554 U.S. at 629; see also
Caetano v. Massachusetts, 577 U.S. 411, 421 (2016) (Alito, J.,
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concurring) (“But the right to bear other weapons is ‘no answer’ to a ban
on the possession of protected arms.”). Likewise, it is no answer to say—
as Judge Graber’s concurrence explicitly does—that citizens may defend
their homes during an attack with multiple firearms or magazines or by
reloading their firearms instead of using a large-capacity magazine.
Graber Concurrence 54–55. While the concurrence calls the burden of
carrying multiple firearms or magazines and the delay of reloading
magazines mere “inconvenience[s],” id., the record shows that such
alternatives impair the ability of citizens to defend themselves. Stated
simply, the unpredictable and sudden nature of violent attacks may
preclude the effective use of multiple firearms and magazines and the
ability to reload weapons. Limiting self-defense to these alternate means
would disadvantage law-abiding citizens, who may not have proper
training to reload firearms or gather multiple armaments under the
trauma and stress of a violent attack.
8
The “reasonable fit” modification to intermediate scrutiny
dispenses with the requirement of narrow tailoring. See, e.g., Vivid
Entertainment, LLC v. Fielding, 774 F.3d 566, 580 (9th Cir. 2014)
(holding that a statute must be “narrowly tailored” to survive
intermediate scrutiny). We appropriated the “reasonable fit” standard
from “a specific, and very different context” under the First Amendment:
“facially neutral regulations that incidentally burden freedom of speech
in a way that is no greater than is essential.” Mai, 974 F.3d at 1101
(VanDyke, J., dissenting from the denial of reh’g en banc). But tailoring
ensures that the government’s asserted interest is its “genuine
motivation”—that “[t]here is only one goal the classification is likely to
fit . . . and that is the goal the legislators actually had in mind.” Brief for
J. Joel Alicea as Amicus Curiae Supporting Petitioners at 20, N.Y. State
Rifle & Pistol Ass’n v. Bruen, (July 20, 2021) (No. 20-843) (quoting John
Hart Ely, Democracy and Distrust 146 (1980)). Dispensing with narrow
tailoring thus abdicates our responsibility to test the government’s true
interest in a regulation.
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9
See footnote 6.
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10
The majority asserts that Heller rejected Justice Breyer’s “interest
balancing inquiry”—not because of the Court’s disapproval of tiers of
scrutiny—but because Justice Breyer did not use the precise words
“intermediate scrutiny.” Maj. Op. 25–26. We do not think the Court
would be so focused on form over substance to reject Justice Breyer’s
argument because of nomenclature. Indeed, the type of inquiry the
majority engages in—such as weighing the ban’s effect on mass
shooters, id. at 46—is exactly the kind of balancing between
“government public-safety concerns” and Second Amendment interests
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that Justice Breyer called for, see Heller, 554 U.S. at 689 (Breyer, J.,
dissenting).
11
For most of this country’s history, judges viewed their role not as
“weighing or accommodating competing public and private interests,”
but instead employing “boundary-defining techniques” which made their
job a more “objective, quasi-scientific one.” Richard Fallon, Strict
Judicial Scrutiny, 54 UCLA L. Rev. 1267, 1274, 1285–86 (2007)
(simplified). As Judge Berzon’s concurrence demonstrates, the tiers-of-
scrutiny approach is of recent vintage. Berzon Concurrence 90–91.
Judge Berzon, thus, confirms Professor Fallon’s view that strict scrutiny
(and its rational-basis and intermediate-scrutiny cousins) have no
“foundation in the Constitution’s original understanding.” Fallon, supra,
at 1268.
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and other courts. See, e.g., Mai, 974 F.3d at 1083 (Collins,
J., dissenting from the denial of reh’g en banc); id. at 1097
(VanDyke, J., dissenting from the denial of reh’g en banc);
Ass’n of N.J. Rifle & Pistol Clubs v. Att’y Gen. N.J., 910 F.3d
106, 127 (3d Cir. 2018) (Bibas, J. dissenting); Mance v.
Sessions, 896 F.3d 390, 394 (5th Cir. 2018) (Elrod, J., joined
by Jones, Smith, Willett, Ho, Duncan, and Engelhardt, JJ.,
dissenting from the denial of reh’g en banc); Tyler v.
Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, 702 (6th Cir.
2016) (Batchelder, J., concurring); id. at 710 (Sutton, J.,
concurring).
12
Allen Rostron, Justice Breyer’s Triumph in the Third Battle over
the Second Amendment, 80 Geo. Wash. L. Rev. 703, 757 (2012)
(explaining that lower courts consistently apply intermediate scrutiny in
line with Justice Breyer’s dissent despite Heller’s rejection of that
approach). Even if we were to ignore Heller and continue to follow our
own misguided precedent, the majority still gets it wrong. As Judge Lee
ably pointed out, strict scrutiny should apply because § 32310’s
categorical ban substantially burdens “the core right of law-abiding
citizens to defend hearth and home.” Duncan v. Becerra, 970 F.3d 1133,
1152 (9th Cir. 2020), reh’g en banc granted, opinion vacated, 988 F.3d
1209 (9th Cir. 2021). As the Supreme Court noted, laws that impinge on
a “fundamental right explicitly . . . protected by the constitution” require
“strict judicial scrutiny.” San Antonio Indep. Sch. Dist. v. Rodriguez,
411 U.S. 1, 17 (1973); Clark v. Jeter, 486 U.S. 456, 461 (1988)
(“[C]lassifications affecting fundamental rights are given the most
exacting scrutiny.” (simplified)).
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Of course, this would not be the first time that our court
struggled mightily to understand the Supreme Court’s
directions. See, e.g., Tandon v. Newsom, 141 S. Ct. 1294,
1297 (2021) (per curiam) (“This is the fifth time the Court
has summarily rejected the Ninth Circuit’s analysis of
California’s COVID restrictions on religious exercise.”).
We have done so again here, and it is a shame.
13
Frank H. Easterbrook, Foreword to Antonin Scalia and Bryan A.
Garner, Reading Law at xxiii (2012).
14
See generally William Baude, Originalism as a Constraint on
Judges, 84 U. Chi. L. Rev. 2213 (2018).
15
See Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L.
Rev. 849, 862 (1989) (“The purpose of constitutional guarantees . . . is
precisely to prevent the law from reflecting certain changes in original
values that the society adopting the Constitution thinks fundamentally
undesirable.”); see also William H. Rehnquist, The Notion of a Living
Constitution, 54 Tex. L. Rev 693, 697 (1976) (“Once we have abandoned
the idea that the authority of the courts to declare laws unconstitutional
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16
See Lawrence B. Solum, The Fixation Thesis: The Role of
Historical Fact in Original Meaning, 91 Notre Dame L. Rev. 1, 28
(2015) (“[T]he original public meaning was, in part, determined by the
public context of constitutional communication. Thus, the public at large
would have been aware of (or had access to) the basic history of the
Constitution.).
17
Ilan Wurman, Law Historians’ Fallacies, 91 N.D. L. Rev. 161,
171 (2015).
18
See, e.g., Gary Lawson & Guy Seidman, Originalism as a Legal
Enterprise, 23 Const. Comment. 47, 74–75 (2006); William Baude &
Jud Campbell, Early American Constitutional History: A Source Guide
(2021), https://ssrn.com/abstract=2718777 (describing the wide variety
of available originalist sources such as ratification debates, dictionaries,
treatises, and linguistic corpora).
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19
See William Baude & Stephen E. Sachs, Originalism and the Law
of the Past, 37 Law and Hist. Rev. 809, 816 (2019) (“[L]egal uncertainty
is hardly restricted to matters of history. Judges and juries frequently face
questions that might stump expert economists or toxicologists.”).
20
See Scalia, supra, at 862–63.
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21
See Magazine, Oxford English Dictionary Online,
https://www.oed.com/view/Entry/112144; Magazine, Merriam-Webster
Online, https://www.merriam-webster.com/dictionary/magazine.
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22
California asserts that the Second Amendment doesn’t extend to
weapons “most useful in military service.” Heller did not establish such
an exception. In fact, Heller said the opposite: the Amendment’s
prefatory clause reference to the “conception of the militia” means that
the right protects “the sorts of lawful weapons that [citizens] possessed
at home [to bring] to militia duty.” 554 U.S. at 627. Justice Alito
squarely dispensed with California’s argument in Caetano, stating that
the Court has “recognized that militia members traditionally reported for
duty carrying the sorts of lawful weapons that they possessed at home,
and that the Second Amendment therefore protects such weapons as a
class, regardless of any particular weapon’s suitability for military use.”
577 U.S. at 419 (Alito, J., concurring) (simplified).
23
We believe this inquiry is one and the same. Heller mentions both
in the same breath. Referring to the Court’s prior precedent that “the
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sorts of weapons protected were those ‘in common use at the time,’” the
Court noted that “that limitation is fairly supported by the historical
tradition of prohibiting the carrying of ‘dangerous and unusual
weapons.’” 554 U.S. at 627 (citing United States v. Miller, 307 U.S. 174,
179–80 (1939)). As then-Judge Kavanaugh recognized, Heller “said that
‘dangerous and unusual weapons’ are equivalent to those weapons not
‘in common use.’” Heller II, 670 F.3d at 1272 (Kavanaugh, J.,
dissenting) (simplified); see also United States v. Fincher, 538 F.3d 868,
874 (8th Cir. 2008) (“Machine guns are not in common use by law-
abiding citizens for lawful purposes and therefore fall within the
category of dangerous and unusual weapons that the government can
prohibit for individual use.”); Wilson v. Cnty. of Cook, 968 N.E.2d 641,
655 (Ill. 2012) (“Heller explicitly recognized a historical and long-
standing tradition of firearms regulations prohibiting a category of
‘dangerous and unusual weapons’ that are ‘not typically possessed by
law-abiding citizens for lawful purposes.’”).
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24
It is no matter that citizens don’t typically serve in militias today,
or that the weapons protected by the Second Amendment would be
comparatively ineffective in modern warfare. As Heller explained, “the
fact that modern developments have limited the degree of fit between the
prefatory clause and the protected right cannot change our interpretation
of the right.” Heller, 554 U.S. at 627–28.
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inquiry.” N.Y. State Rifle & Pistol Ass’n v. Cuomo, 804 F.3d
242, 256 (2d Cir. 2015). For example, Justice Alito noted
the quantity of stun guns (200,000) in circulation as proof
that they’re commonly owned for lawful purposes. Caetano,
577 U.S. at 420 (Alito, J., concurring). But a narrow focus
on numbers may not capture all of what it means to be a
weapon “typically possessed by law-abiding citizens for
lawful purposes.” Heller, 554 U.S. at 625. As Judge Lee
noted, “pure statistical inquiry may hide as much as it
reveals.” Duncan, 970 F.3d at 1147. A straight quantitative
inquiry could create line-drawing problems and lead to
bizarre results—such as the exclusion of a protectable arm
because it is not widely possessed “by virtue of an
unchallenged, unconstitutional regulation.” Id.; see also
Friedman v. City of Highland Park, 784 F.3d 406, 409 (7th
Cir. 2015) (“Yet it would be absurd to say that the reason
why a particular weapon can be banned is that there is a
statute banning it, so that it isn’t commonly used. A law’s
existence can’t be the source of its own constitutional
validity.”). Indeed, notably absent from Heller is any
analysis of the number of handguns in circulation or the
proportion of owned firearms that were handguns. Heller
instead focused on the purpose for which the firearms are
owned and used. See 554 U.S. at 629 (“It is enough to note,
as we have observed, that the American people have
considered the handgun to be the quintessential self-defense
weapon.”). Thus, in addition to statistical analysis, some
courts also look to “broad patterns of use and the subjective
motives of gun owners.” N.Y. State Rifle & Pistol Ass’n,
804 F.3d at 256. We need not resolve all these questions
today, since large-capacity magazines, as we show below,
are “in common use” today under either rubric.
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25
We can go on and on with examples. Since 1964, Ruger has sold
six million copies of its 10/22 rifles, which is manufactured with 10-
round, 15-round, and 25-round magazines. More than five million AR-
15 rifles have been sold, typically with 30-round magazines. The
commonality of large-capacity magazines is well accepted by other
courts. See, e.g., Heller II, 670 F.3d at 1261 (“We think it clear enough
in the record that semi-automatic rifles and magazines holding more than
ten rounds are indeed in ‘common use,’ as the plaintiffs contend”
because “fully 18 percent of all firearms owned by civilians in 1994 were
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27
See Kanter v. Barr, 919 F.3d 437, 464 (7th Cir. 2019) (“History
. . . support[s] the proposition that the state can take the right to bear arms
away from a category of people that it deems dangerous.”) (Barrett, J.,
dissenting); C. Kevin Marshall, Why Can’t Martha Stewart Have A
Gun?, 32 Harv. J.L. & Pub. Pol’y 695, 698 (2009) (“‘[L]ongstanding’
precedent in America and pre-Founding England suggests that a firearms
disability can be consistent with the Second Amendment to the extent
that . . . its basis credibly indicates a present danger that one will misuse
arms against others and the disability redresses that danger.”); Stephen
P. Halbrook, What the Framers Intended: A Linguistic Analysis of the
Right to ‘Bear Arms’, 49 Law & Contemp. Probs. 151, 161 (1986)
(“[V]iolent criminals, children, and those of unsound mind may be
deprived of firearms[.]”); Binderup v. Att’y Gen. United States of Am.,
836 F.3d 336, 369 (3d Cir. 2016) (Hardiman, J., concurring in part and
concurring in the judgments) (“[T]he historical record leads us to
conclude that the public understanding of the scope of the Second
Amendment was tethered to the principle that the Constitution permitted
the dispossession of persons who demonstrated that they would present
a danger to the public if armed.”). Because such prohibitions—in their
contemporary form—date only to the early twentieth century, Marshall,
supra at 695, some (including the majority) have mistakenly concluded
that any firearm regulation dating to that period must be presumptively
lawful. See, e.g., Maj. Op. 28–29.
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28
For example, several colonies “passed laws in the first half of the
seventeenth century making it a crime to sell, give, or otherwise deliver
firearms or ammunition to Indians.” Teixeira, 873 F.3d at 685. And, for
instance, “Connecticut banned the sale of firearms by its residents
outside the colony.” Id. Connecticut law also required a license to sell
gunpowder that had been manufactured in the colony outside the colony.
See An Act for encouraging the Manufactures of Salt Petre and Gun
Powder, December 1775, reprinted in The Public Records of the Colony
of Connecticut From May, 1775, to June, 1776 191 (Charles J. Hoadly
ed., 1890); (“Be it . . . enacted, That no salt petre, nitre or gun-powder
made and manufactured, or that shall be made and manufactured in this
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Colony, shall be exported out of the same by land or water without the
licence of the General Assembly or his Honor the Governor and
Committee of Safety[.]”). Similarly, New Jersey law required that any
gunpowder be inspected and marked before its sale. An Act for the
Inspection of Gun-Powder, ch. 6, §1. 1776 N. J. Laws 6. (making it an
“Offence” for “any Person” to “offer any Gun-Powder for Sale, without
being previously inspected and marked as in herein after directed”).
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29
Sufficient historical pedigree is only capable of establishing a
presumption in favor of constitutionality. But that presumption is not
dispositive. Thus, even if California’s magazine ban dated to a period
that would plausibly render it longstanding (i.e., the Founding or
Reconstruction), we would still need to answer whether that presumption
could be overcome. California’s law effectively outlaws massive swaths
of firearms chosen by law-abiding citizens for lawful purposes like self-
defense. If a court were forced to answer the question, it’s possible that
the ban’s history couldn’t save it.
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IV.
We respectfully dissent.
* * *
1
Because Judge Bumatay’s dissent explains at length the
shortcomings of the majority’s analysis, I provide only some
supplemental observations.
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purpose. 2 It’s now beyond obvious that you can’t expect our
court to faithfully apply any Second Amendment test that
allows us to exercise much discretion. Many fundamental
rights are protected by more bright-line tests. 3 It’s past time
we bring that to the Second Amendment.
2
To be clear, I think Judge Bumatay has penned an exemplary
dissent addressing “text, tradition, and history.” My objection is not that
judges cannot do good analysis under this framework, but rather that
without a more bright-line test there is far too much opportunity for
manipulation, especially with a right as unpopular with some judges as
the Second Amendment.
3
See David B. Kopel & Joseph G.S. Greenlee, The Federal Circuits’
Second Amendment Doctrines, 61 ST. LOUIS U.L.J. 193, 303 (2017)
(“Bright-line rules declaring certain government actions categorically
unconstitutional, without the need for a means/ends test, are common in
constitutional law. They are found in the First Amendment, Fifth
Amendment, Sixth Amendment, Eighth Amendment, Tenth
Amendment, and Fourteenth Amendment.”) (footnotes omitted).
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4
The majority claims that the current two-step inquiry “faithfully
adheres” to Heller, since “history, text, and tradition greatly inform step
one of the analysis . . . .” But this only illustrates my point about the
malleability of our current framework. Our court consistently uses step
one of our test to either: (1) wade through the complicated history to
conclude the regulation does not burden conduct protected by the Second
Amendment at all, see, e.g., Young v. Hawaii, 992 F.3d 765, 785 (9th
Cir. 2021) (en banc) (“As we might expect in this area, fraught with
strong opinions and emotions, history is complicated, and the record is
far from uniform.”); or (2) as here, side-step this inquiry altogether by
assuming the conduct implicates the Second Amendment, only to uphold
the regulation at step two by applying an extremely loose balancing test
(more on that below). It’s clear that history, text, and tradition is
currently comatose in our circuit’s jurisprudence enforcing the Second
Amendment—we only rely on it when deemed useful to support the
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5
By emphasizing their statistical rarity, I do not belittle the tragedy
experienced by those affected by a mass shooting (any more than
observing that airline crashes are thankfully rare detracts from the
heartbreak of those involved when they happen).
6
Characterizing my car ban analogies as “inapt,” the majority says
that California’s magazine ban is more akin to “speed limits.” But in
attempting to trade my analogies for a more favorable one, the majority
misses the obvious point: that in every context except our distorted
Second Amendment jurisprudence, everyone agrees that when you
evaluate whether a response to avoid some harm is “rational”—much
less a “reasonable fit”—you take into account both the gravity of the
possible harm and the risk of it occurring. The majority here completely
ignores the latter. Perhaps if I use the majority’s own analogy it might
click: If California chose to impose a state-wide 10 mph speed limit to
prevent the very real harm of over 3,700 motor-vehicle deaths each year
experienced from driving over 10 mph, no one would think such a
response is rational—precisely because, even though the many deaths
from such crashes are terrible, they are a comparatively rare occurrence
(although much more common than deaths caused by mass shootings).
7
See, e.g., Sable Commc’ns of Cal., Inc. v. F.C.C., 492 U.S. 115,
126 (1989) (“indecent . . . [expression] is protected by the First
Amendment”); Nat’l Socialist Party of Am. v. Vill. of Skokie, 432 U.S.
43, 44 (1977) (per curiam) (protecting the First Amendment rights of
Nazis to protest).
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8
The majority defends our undefeated, 50–0 record against the
Second Amendment by pointing out that the states in our circuit simply
have “more restrained” gun-control laws than the states in other circuits.
While the majority is apparently serious, this claim can’t be taken
seriously given that our circuit’s jurisdiction includes states like
California and Hawaii—which have enacted many of the most
aggressive gun-control laws in the nation. The majority’s failure to
comprehend that reality underscores my point that something other than
objective and impartial application of the two-part test is driving the
outcomes in our Second Amendment cases.
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9
Observing the rarity does not diminish the fact that thousands of
citizens use their firearms for lawful self-defense each year. It simply
means that as a percentage of the population generally, or even lawful
gun owners, that percentage is tiny.
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10
California currently allows more than 2.2 rounds in a magazine,
and does not prohibit carrying multiple magazines. But don’t be fooled.
Under the majority’s Version 2.2 of the Second Amendment, there is no
reason a state couldn’t limit its citizens to carrying a (generous) 3 rounds
total for self-defense.
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11
The majority implies that by emphasizing the rarity of mass
shootings, I omit the other relevant part of the analysis: “the incredible
harm caused by mass shootings.” I’m not ignoring the “incredible
harm”; I’m simply saying that, just as we do with all serious harms, we
must evaluate the seriousness of that harm along with the probability of
it occurring. For example, no one doubts that commercial airline
crashes, when they occur, result in “incredible harm.” And yet no
government has seriously considered banning commercial flights. Why?
Because airplane crashes are extremely rare—just like mass shootings.
The majority’s response—doubling down on its emphasis of the harm
while continuing to intentionally avoid its rarity—demonstrates that it is
the majority, not me, that “omits . . . [a] critical part of the analysis.”
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A. Common Use
12
67% of gun owners say self-defense is a major reason why they
own their firearm. See Kim Parker, et al., The demographics of gun
ownership in the U.S., PEW RESEARCH CENTER (June 22, 2017),
https://www.pewresearch.org/social-trends/2017/06/22/the-demographi
cs-of-gun-ownership/; see also Christopher S. Koper et al., An Updated
Assessment of the Federal Assault Weapons Ban: Impacts on Gun
Markets and Gun Violence, 1994–2002, (June 2004),
https://www.ojp.gov/pdffiles1/nij/grants/204431.pdf.
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Our court has often cited the practice of other states when
it suits its purpose in analyzing constitutional rights. See,
e.g., Young, 992 F.3d at 805 (analyzing the Second
Amendment, the court observed “[i]n contrast to these states,
other states—also from the South—upheld good-cause
restrictions on the open carry of certain dangerous
firearms”); Family PAC v. McKenna, 685 F.3d 800, 811 n.12
(9th Cir. 2012) (First Amendment); S. Or. Barter Fair v.
Jackson County, 372 F.3d 1128, 1131 (9th Cir. 2004) (First
Amendment); Cammack v. Waihee, 932 F.2d 765, 766–67
(9th Cir. 1991) (Establishment Clause). Indeed, the majority
does so here, strangely observing that “California is not
alone” because a few other states and local governments also
ban some magazines (even though a super-majority of states
don’t).
* * *