Over warnings from several of its members that their decision flies in the face of recent U.S. Supreme Court rulings, a federal appeals court has once again resurrected California’s ban on so-called large capacity ammunition magazines, asserting the state law can still be reconciled with the Second Amendment’s right to keep and bear arms.
In that Sept. 22 ruling, U.S. District Judge Robert Benitez struck down the California state law which slapped a ban on ammo magazines that can hold more than 10 rounds.
U.S. Ninth Circuit Court of Appeals Chief Judge Mary Murguia
| United States Court of Appeals for the Ninth Circuit, Public domain, via Wikimedia Commons
In his decision, Benitez specifically ruled that the law cannot be squared constitutionally against the firearm ownership and use rights granted to the people under the Second Amendment, particularly in light of the U.S. Supreme Court’s most recent Second Amendment decision in New York State Rifle & Pistol Association v Bruen.
“Based on the text, history and tradition of the Second Amendment, this law is clearly unconstitutional,” Benitez wrote. “There is no American tradition of limiting ammunition capacity and the 10-round limit has no historical pedigree and it is arbitrary and capricious. It is extreme. Our federal government and most states impose no limits and in the states where limits are imposed, there is no consensus.”
The law has a long history in the courts. Enacted in 2000 and amended in 2016, the law was challenged on the grounds that it violates the Second Amendment. The law was blocked by an injunction in 2017, where it remained until 2019, when the law was first declared unconstitutional.
That decision was initially upheld on appeal by a standard three-judge panel of the Ninth Circuit.
However, that decision was then overturned by a so-called “en banc” 11-judge panel of the Ninth Circuit – the same 11-judge panel that has imposed a stay on Benitez’s latest ruling.
The Supreme Court vacated the Ninth Circuit’s ruling, and directed the courts in California to take another look at the case in light of the Bruen ruling.
Benitez then declared the law unconstitutional, prompting California Attorney General Rob Bonta to appeal to the Ninth Circuit.
This time, in an unusual move, the majority of the original 11-judge en banc panel scooped the appeal up immediately as so-called “comeback case,” bypassing the three-judge panel phase of proceedings and denying the rest of the full contingent of Ninth Circuit judges the chance to weigh in on how to handle the case.
After agreeing to stay the matter until Oct. 10, the original 11-judge panel followed up with an order and a more permanent stay on Benitez’s decision, allowing the law to remain in effect while the court hears arguments on appeal.
In its opinion, the 7-4 majority said it believed the unusual maneuver was necessary in this case, because they agreed with Bonta and other California state officials that allowing the law to be blocked would result in a flood of dangerous weapons being sold, increasing the risk of a mass shooting.
The judges said they believed law allowed the state of California to advance its interest in preventing mass shootings without unduly burdening the ability of Californians to defend themselves.
“This stay does not interfere with the public’s ability ‘to purchase and possess a wide range of firearms, as much ammunition as they want, and an unlimited number of magazines containing ten rounds or fewer,’” the majority wrote.
Further, they asserted the ruling was in keeping with virtually all other federal court decisions concerning constitutional challenges to similar “large-capacity magazine” bans in other states. They noted only one other federal judge in Illinois had ruled like Benitez in issuing an injunction against Illinois’ similar ban.
They further noted the U.S. Seventh Circuit Court of Appeals in Chicago had similarly stayed that judge’s injunction, allowing Illinois’ law to remain in effect pending appeal.
The majority included Chief Judge Mary H. Murguia, with Sidney R. Thomas, Susan P. Graber, Kim McClane Wardlaw, Richard A. Paez, Marsha S. Berzon and Andrew D. Hurwitz. All were appointed to the court by either former presidents Bill Clinton or Barack Obama.
A group of four judges dissented from the ruling, however, asserting the en banc panel majority had trampled court rules, the Second Amendment and Supreme Court rulings, and does so without any real attempt to justify itself, beyond using legal reasoning that the dissenters said the Supreme Court had already forbidden.
The dissent was authored by Ninth Circuit Judge Patrick Bumatay, joined by Sandra S. Ikuta, Ryan D. Nelson and Lawrence VanDyke. All were appointed to the court by either former presidents George W. Bush or Donald Trump.
“… Our court once again swats down another Second Amendment challenge,” wrote Bumatay. “On what grounds? Well, the majority largely doesn’t think it worthy of explanation.
“Rather than justify California’s law by looking to our historical tradition as Bruen commands, the majority resorts to simply citing various non-binding district court decisions. There’s no serious engagement with the Second Amendment’s text. No grappling with historical analogues. No putting California to its burden of proving the constitutionality of its law.
“All we get is a summary order, even after the Supreme Court directly ordered us to apply Bruen to this very case. The Constitution and Californians deserve better.”