The 9th U.S. Circuit Court of Appeals ruled Thursday that California’s ban on magazines capable of holding more than 10 rounds is constitutional, overturning a previous ruling by a San Diego federal judge who found the state law violated the Second Amendment.
In a 7-4 decision authored by senior circuit Judge Susan Graber, an appointee of former President Bill Clinton, the majority wrote that “a large-capacity magazine has little function in armed self-defense, but its use by mass shooters has exacerbated the harm of those horrific events.”
The majority ruled the California law did not violate the Second Amendment in part because the magazines are optional accessories, not arms protected by the Constitution, and that firearms can operate as intended without them. They also ruled the law conforms with the Second Amendment because it “falls neatly within the Nation’s traditions of protecting innocent persons by prohibiting especially dangerous uses of weapons.”
Among three dissenting opinions, all authored by judges appointed to the 9th Circuit during President Donald Trump’s first term, was one authored by Judge Lawrence VanDyke, who included in his dissent a video of himself operating firearms in his chambers. He said part of the video’s purpose was to show his colleagues in the majority why their ruling that magazines are only firearm accessories “is inconsistent with reality.” The seven judges who signed on to the majority opinion also signed a concurring opinion calling the video “wildly improper.”
While gun magazines that hold more than 10 rounds have long been illegal to buy, sell or manufacture in California, in 2016 California voters approved a law that made mere ownership of such magazines unlawful. The law has been mired in legal challenges ever since.
California Attorney General Rob Bonta, whose office has defended the state law against those challenges, celebrated Thursday’s ruling. “Let me be clear, this law saves lives,” Bonta said in a statement. “This commonsense restriction on how many rounds a gunman can fire before they must pause to reload has been identified as a critical intervention to limit a lone shooter’s capacity to turn shootings into mass casualty attacks.”
The California Rifle & Pistol Association has led the legal challenges against the law along with several individual gun owners who have argued that the large-capacity magazine ban violates their constitutional right to self-defense.
Chuck Michel, president and general counsel of the California Rifle & Pistol Association, promised Thursday that his organization would appeal the 9th Circuit’s decision to the U.S. Supreme Court.
“That Court has already vacated an incorrect ruling from the 9th Circuit in this case once, and we expect that the Justices will do that again,” Michel said in a statement.
Indeed, Thursday’s ruling was the latest in a dizzying, yearslong legal battle that has moved from a U.S. district court in San Diego to the Supreme Court and back again.
San Diego-based U.S. District Judge Roger Benitez, known among firearm enthusiasts as “St. Benitez” for his gun-friendly rulings, initially ruled in the gun owners’ favor in 2019. In 2020, a three-judge panel from the 9th Circuit affirmed Benitez’s ruling. But in 2021, a larger 9th Circuit panel of 11 judges, known as an en banc panel, voted 7-4 to reverse the rulings that struck down the law.
Attorneys for the gun owners then asked the Supreme Court to hear the case. But first, the Supreme Court ruled in June 2022 in a different case — New York State Rifle & Pistol Association, Inc. v. Bruen — that set a new standard for how judges should evaluate Second Amendment cases. Rather than hear the San Diego magazine-capacity case on its merits, the high court vacated the 9th Circuit’s ruling that upheld the law and ordered it to reconsider the case using the new Bruen standard. The appeals court then sent the case back down to Benitez.
Benitez again ruled in favor of the gun owners in 2023, describing California’s ban on large-capacity magazines as “arbitrary and capricious … (and) extreme.” He ruled the law was unconstitutional “based on the text, history, and tradition of the Second Amendment,” which was the standard established in the Bruen ruling.
But in the majority opinion published Thursday, an en banc panel of 9th Circuit judges — mostly composed of the same judges from the 2021 en banc ruling — found the California law conforms with the Second Amendment “for two independent reasons.”
“First, the Founders protected the right to keep and bear ‘Arms,’ not a right to keep and bear ‘Arms and Accoutrements,’ a common expression at the time of the Founding,” the opinion said. “Large-capacity magazines are optional accessories to firearms, and firearms operate as intended without a large-capacity magazine. A large-capacity magazine is thus an accessory or accoutrement, not an ‘Arm’ in itself. Possession of a large-capacity magazine therefore falls outside the text of the Second Amendment.”
The judges wrote that even if large-capacity magazines were covered by the Second Amendment, “California’s law falls neatly within the Nation’s traditions of protecting innocent persons by prohibiting especially dangerous uses of weapons and by regulating components necessary to the firing of a firearm.”
Judge Ryan Nelson, one of the three Trump appointees to author dissenting opinions, wrote that the majority flouted the standard set by the Bruen ruling and in so doing “(butchered) the Second Amendment and (gave) a judicial middle finger to the Supreme Court.”
As for VanDyke’s dissent, his colleagues in the majority wrote that his video improperly introduced facts that were not part of the record and that the judge appeared to be attempting to offer expert testimony instead of simply ruling on the issues.
“Although I am surprised that it is necessary to do so, I write to reemphasize that as judges, we must decide cases as they are presented to us by the parties, leaving advocacy to the attorneys and testimony to the witnesses,” wrote senior Judge Marsha Berzon, a Clinton appointee.
In a second order, the judges also addressed a separate but related legal issue of whether the en banc panel even had the authority to decide the case or whether it should have first assigned it to a three-judge panel. The judges voted 8-3 to affirm the en banc panel’s authority.
The same three Trump appointees who wrote dissenting opinions on the central issue of the large-capacity magazines were in the minority. Judge Sandra Ikuta, an appointee of former President George W. Bush, joined in the dissention against the large-capacity magazine issue but joined the majority in the question over the en banc panel’s authority.