California and New Jersey have enacted laws to confiscate gun magazines with more than 10 rounds. On August 14, a 2-1 Ninth Circle in Duncan against Becerra ruled that the California seizure was unconstitutional. The Third Circuit, September 1, upheld by a 2-1 New Jersey seizure in the New Jersey Rifle and Pistol Clubs Inc. v. Attorney General New Jersey (NJ Rifle II). In combination, the Duncan and NJ Rifle II cases provide a good overview of the current state of the second amendment.
Below is a summary and analysis of the opinions and what might happen next. Since the history of the magazines was important in both cases, this post also provides background information on the history of the magazines, including photos of historic weapons with at least 16 rounds. Such weapons have been around since at least 1580. The Lewis & Clark Expedition, 1803-06, carried one. Multishot guns were expensive when the second amendment was ratified in 1791. By 1868, when the fourteenth amendment was ratified, they had become largely affordable.
En banc? On August 28, California Attorney General Xavier Becerra filed a retry motion. All of the files in the case are available on the excellent case site of Michel & Associates, the company that won the case in the district court and then in the three judges panel.
In the past, any Ninth Circle decision in favor of the second amendment was later overturned en banc. That could still happen, but it's no longer safe thanks to President Trump's many court appointments. The Ninth Circle has 27 judges for active status. (High status judges do not vote or participate in en bancs.) A majority decision is required to take an en banc case. Here is a flowchart for the procedural steps involved in deciding to decide a case en banc. and here is a written description of the procedures from Michel & Associates.
Because the ninth circle is so large, an en banc does not include all active judges. Under rule 35-3 of the Ninth Circuit, an en banc body always includes the chief judge. The current Chief Justice, Sidney Thomas (Clinton, 1996) has been actively involved in performing en banc reversals. For the remainder of the en-banc panel, ten additional active judges will be selected at random to form a panel of 11. Active judges on the ninth circle include 10 appointed by Donald Trump, 7 by Barack Obama, 3 by George W. Bush, and 9 by Bill Clinton. That's 16 Democratic-nominated versus 13 Republican-nominated.
At this time, it has not been disclosed whether the New Jersey plaintiffs will file a Third Circuit en-banc review. The court's active judges currently consist of two Clinton-appointed people, four Obama, four George W. Bush, and four Trump.
Supreme Court: If the panel's decision survives in Duncan, or if an en banc Third Circuit reverses the panel, the circuit would split up. Magazine bans were upheld by the First, Second, Fourth, Seventh, and DC circuits. There has been strong disagreement in the last three circles. The dissent-dissent in the Heller II case was drafted by then Judge Kavanaugh.
Splitting the circuit alone is not necessarily enough to attract the attention of the Supreme Court. Even a well-established circuit layout can just stay as it is. For example, if an adult passes a fingerprint-based background check and security training, should the individual be allowed to carry a hidden handgun in legitimate self-defense? The DC and Seventh Electric Circuits answered "Yes". Five other circles have stated that the right to bear arms can be denied unless the applicant has a specific need. (1st, 2nd, 3rd, 4th, 9th Cirs.) In some states, such as Hawaii, a special need is interpreted as non-existent.
In May 2020 the Supreme Court denied cert. In ten cases involving the second amendment – including a New Jersey case, Rogers v Grewal – this would have been perfect for examining arms-taking.
According to CNN journalist Joan Biskupic, "sources have told CNN that the judges on the right didn't believe they could count on a fifth vote from Roberts." Joan Biskupic, Behind Closed Doors during one of John Roberts' Most Surprising Years at the Supreme Court, CNN.com, July 27, 2020.
Magazine bans in the Pacific: Hawaii prohibits pistol magazines over 10 rounds. A proposal to extend the ban to include rifles was rejected in the 2020 legislature. If the Duncan Panel's decision continues to be good law, the Hawaii pistol magazine ban should fall.
Like Hawaii, the Commonwealth of the Northern Mariana Islands is part of the ninth circuit. The Commonwealth bans magazines over 10 rounds. This prohibition would also be invalid under Duncan.
The third circuit includes New Jersey, Pennsylvania, Delaware, and the U.S. Virgin Islands. None of the other jurisdictions on the Circuit have magazine bans. (The laws of the Virgin Islands are here.)
Case histories. California in 2000 banned the manufacture, import and sale of so-called "large capacity magazines", defined as magazines with more than 10 cartridges. A 2013 revision banned the purchase or receipt of such magazines. In 2016, California lawmakers banned bare possession. Magazine owners must remove the magazines from the state, sell them to an arms dealer, or turn them over to law enforcement for destruction. There are exceptions for police, retired police, government use, and filmmaking. Cal. Criminal Code sect. 32310.
In Duncan, the federal district court issued an injunction against the confiscation. That decision was upheld by a 2: 1 panel in the ninth circuit, which emphasized the district judges' broad discretion whether or not to issue an injunction. The panel discussed some of the pros and cons evidence put in place so far. The majority believed that the district judge's weighing and interpretation of the evidence was not an abuse of power. 742 F. Appx. 218 (9th Cir. 2018). I filed an amicus brief to help maintain the injunction. I wrote about the decision of the ninth circle here.
During the injunction, the district court brought the case forward. In March 2019, U.S. District Judge Roger T. Benitez ruled in favor of plaintiffs' motion to summarize the verdict and held the Confiscation Act to be unconstitutional. My analysis of the 86 page opinion is here. Shortly after the district court's decision, the California attorney general filed and a Ninth Circle motion panel granted temporary residence. There was no seizure during the stay, but the Californians were not allowed to purchase magazines for over 10 rounds. This status quo persists to this day, as explained in a FAQ from the California Rifle & Pistol Association.
In New Jersey, a limit of 15 rounds was set in 1990, with a limited form of grandfathering for larger magazines. In 2018, the legislature reduced the limit to 10 rounds and ordered the seizure of magazines that were larger than 10 rounds.
On the day the law went into effect, plaintiffs filed the Association of New Jersey Rifle & Pistol Clubs (NJ Rifle I). The district court rejected the plaintiffs' request for an injunction. Upon expedited appeal in 2018, the Third Circuit upheld the rejection of the injunction with 2: 1. 910 F.3d 106. When the case returned to the District Court, the court stated that the Third Circuit Panel's position on the injunction was all legal Reasons in the case finally clarified and the district court was therefore obliged to maintain the confiscation statute.
The decision of the District Court in NJ Rifle II has been appealed. I filed an amicus letter on the case and wrote about the case here along with a detailed history of magazines with more than 10 rounds.
The Third Circle agreed 2: 1 that the previous decision of the panel on the injunction had finally resolved all legal issues and was binding. Accordingly, the majority did not respond to constitutional merits.
The dissent in NJ Rifle II contradicted that the interim injunction had been binding on the matter; The dissent made arguments as to why the confiscation violated the second amendment under different standards of inspection.
The opinions of Duncan and Association. The Duncan Panel's decision was drafted by Judge Kenneth K. Lee (Trump 2019, in place of Stephen Reinhardt)., together with Consuelo M. Callahan (G. W. Bush 2003). Barbara M. G. Lynn, Chief Justice of the Northern Texas District (Clinton 1999), sat on the panel by designation and disagreed.
The decision of the NJ Rifle II Panel was authored by Kent A. Jordan (G. W. Bush 2006) and supported by Jane R. Roth (G. H. W. Bush 2001, Senior Status 2006). Judge Paul B. Matey (Trump 2018) disagreed.
Here are some key differences and agreements between the judges in the two circles – with the caveat that the majority of NJ Rifle II did not address merits.
Structure of the review. All circuits except the eighth use a two-part test for cases of the second amendment: "(1) whether the law burdens the behavior protected by the second amendment; and (2) if so, what level of control applies to the ordinance."
The first part of the test asks if the case is a second change issue. In the Heller case, the Supreme Court stated that "dangerous and unusual weapons" are not protected by the second amendment. So if someone challenged the second amendment against a law on the prohibited possession of sarin gas, a court would reject the challenge in the first part because sarin gas is not protected by the second amendment.
All judges in Duncan and NJ Rifle I used the two-part test. Judge Matey contradicted NJ Rifle II, writing that text, history, and tradition were the correct test under Heller and that the Confiscation Act clearly failed the test. (For reasons discussed below.) Then-Judge Kavanaugh had used text, history, and tradition in his dissent on Heller II. As Judge Matey explained, the two-part test often had an impact on a judicial reconciliation of interests – that is exactly what the Heller majority rejected and Judge Breyer supported in his Heller dissent. Like the NJ Rifle II dissent, the Duncan District Court used the two-part test as a form of analysis, but criticized it as overly complicated compared to Heller's "simple test" of text, history and tradition. The Ninth Circuit Panel in Duncan took brief note of the criticism, disagreed, but stated that the panel was bound by the ninth circuit precedent for using the test.
How common are the banned magazines and how important is it? Magazines with more than 10 rounds number tens of millions. They are nearly half of all the magazines currently owned in the United States. Magazines are an essential part of operating a firearm. All the judges agreed on these facts.
According to some judges, the seizure of property widely used for the exercise of constitutional rights should be closely monitored. According to other judges, magazines over 10 rounds are not important in lawfully defending yourself or others. An intermediate audit is therefore the appropriate audit standard.
In terms of objective standards of what is useful in the lawful defense of oneself and others, it can be noted that U.S. marshals guarding federal courts often carry 0.40 caliber Glock pistols. Their standard magazine is 15 rounds. The standard arm of the New Jersey State Police is a pistol with a 15-round magazine. (NJ Rifle II, 7).
According to Heller (who had brushed aside DC's argument that long guns were an adequate substitute for small arms for defense purposes), the Duncan majority wrote, "The second amendment limits the state's ability to reconsider a citizen's weapon choice when they do prescribes this. " a significant burden on their right to self-defense. "Put simply, any law that comes close to the categorical prohibition of gun possession, commonly used for self-defense, puts a significant burden on the second amendment." Also:
We would be looking through the wrong end of a sight-glass if we asked if the government allows people to maintain some of the basic and enumerated fundamental rights. Instead, Heller advises us to check whether the government ordinance restricts the fundamental right from the start. In other words, we look at what takes away a constraint, not what it leaves behind. … Here the state is effectively entering the homes of law-abiding citizens to forcibly confiscate weapons they rely on for self-defense … When the government bans tens of millions of protected weapons that are the staple of self-defense and threatens to confiscate them from the Houses of law abiding citizens, which puts a heavy burden on the core rights of the second amendment.
As the Duncan Dissent pointed out, while 10-round magazines are common in the United States overall, they may not be as common in California due to the 2000 sales ban. The Duncan majority replied that a ban could not be its own justification. In the District of Columbia v. Heller of the Supreme Court, the District had banned handguns, so legal handguns were uncommon in the District. The Heller decision dealt with the proliferation of small arms in the United States, not just in a single jurisdiction.
Legal history. Heller had stated that certain "longstanding" laws were "presumably" (but not final) constitutional. For example, the opinion listed bans on gun possession by criminals and the mentally ill. Bans against the carrying of firearms in schools and government buildings; and regulations governing the commercial sale of firearms. The California magazine ban did not fit into any of the alleged constitutional categories.
Magazine bans were the exception rather than the norm in American history. The current series of magazine bans in some states only dates back to 1990. New Jersey law banned the purchase of magazines for more than 15 rounds.
During the alcohol ban in the 1920s, some states passed firearm capacity laws, but none were as comprehensive as the current California and New Jersey laws. Capacity was also not as low as 10. All alcohol prohibition laws were later repealed so they are not "longtime".
The above legal history was presented by the judges who found the confiscation unconstitutional and not disputed by the other judges.
Not "dangerous and unusual". Guns that are "dangerous and unusual" are not protected by the second amendment, according to Heller. Magazines over 10 rounds are common and therefore not uncommon. Therefore, they cannot be dangerous and unusual. The Duncan majority cited evidence that 115 million such magazines were in circulation. Regardless of the exact numbers, such magazines number in the tens of millions in the United States. Like handguns at Heller, magazines over 10 cartridges are "commonly owned and normally owned" for legitimate purposes. (Duncan, paraphrasing Heller slightly.) No judge in the United States has ever accepted the claim that 10-round magazines are "dangerous and unusual".
Use strict controls. The three judges, who used strict control, did so with ease. Under strict scrutiny, the government's restriction of a right must be "tightly tailored". It has to be "the least restrictive means of serving government interests". The seizure was exactly the opposite: "A nationwide general ban on possession everywhere and for almost everyone." (Duncan). As Judge Matey pointed out in NJ Rifle II, the state had provided no evidence that magazine bans saved lives, and no justification for why a 15-round limit was fine in 1990 but required the seizure of anything over 10 in 2020.
Apply intermediate examination. All merit judges examined the statute at least as an alternative approach under intermediate examination.
The mid-term review looks for "a reasonable correspondence between the contested regulation and the stated objective".
According to the Duncan majority, a general ban on everyone is "excessive and sloppy".
This applies to rural and urban areas, in places with low crime rates and high crime rates, areas where law enforcement response times can be significant, those who may have a high level of skill in self-defense, as well as vulnerable groups most in need of self-defense. The law also prohibits direct possession. And it applies to all firearms, including handguns, which are the "quintessential self-defense weapon". (citing Heller)…. The state could forbid practically anything if the only test is whether something is causing social malaise when someone other than its rightful owner abuses it. Taking such a radical position would give the government permission to curtail people's freedoms under the guise of their protection.
The government bears the burden of proof either under intermediate scrutiny or under strict scrutiny. However, the California Attorney General's evidence was "thin". A poll of mass shootings in California found that only 3 out of 17 involved a 10-round magazine. None of these magazines were legally sourced in California. The reasons for the confiscation of all of these magazines from legal owners in California were therefore not supported.
Judge Lynn disagreed with Duncan and was agnostic about whether the magazines seizure harmed the behavior of the second amendment (Part 1 of the two-part test). However, she was certain that the seizure had undergone an interim review. The attorney general had produced some evidence that magazine bans were effective, and that was sufficient; At least the case should not have been decided in the summary assessment phase.
In NJ Rifle II, the state had argued that this time it took to replace an empty magazine (2-4 seconds) allowed some victims of a mass shooting to escape or counter-attack the shooter. But that was just speculation, replied dissenting Judge Matey. The evidence showed that the vast majority of mass shooters used more than one weapon. In addition, the average interval between shots for a mass shot is more than 2 to 4 seconds, so a magazine can be changed without interruption. The attorney general had failed to meet the intermediate examination standard of "reasonable conclusions based on material evidence".
Material history: Heller stated that like the first change, the second change is not limited to the technology that existed in 1791.
As the Ninth Circle and Judge Matey fully pointed out, firearms with more than ten rounds were two centuries older than the Second Amendment. No judge in the United States has found the veracity of the Duncan majority and dissent of N.J. Rifle II disputed history set forth.
The Duncan Statement provided three pages in the history of weapons technology from the sixteenth century to the present. Judge Matey's dissent, NJ Rifle II, also examined the material history.
Below is a photo of a 16-round wheel-lock weapon that was built just before 1600. (Photo by Michael Ives for an article in America's 1st Freedom.)
When the user pulled the trigger, all 16 shots were fired in sequence. By the 1700s, gun designers had figured out how the user could fire one shot at a time.
At the time of the ratification of the second amendment, the state of the art was the 22-round Girandoni air rifle. On the Lewis & Clark expedition, it was ballistically equivalent to a powder pistol. (This and the following photos were used with the kind permission of the NRA museums.)
Although the Lewis and Clark expedition, which consisted of a few dozen people, were often outnumbered, they made a point of demonstrating the Girandoni when they encountered a new group. As a result, they were rarely molested. (For details, see the NRA Museum Senior Curator Phil Schrier video at the bottom of the NRA Museum's Girandoni page.)
This is one of the purposes of magazines with sufficient ammunition capacity: to enable self-defense by someone who is outnumbered. The Duncan statement went into detail on the anti-mob utility and explained how bolt-action rifles were used to deter lynch mobs during Jim Crow.
Such weapons were expensive in the eighteenth, seventeenth, and sixteenth centuries. By 1866, when Congress sent the fourteenth amendment to states for ratification, improved manufacturing techniques (such as interchangeable parts) had made such weapons largely affordable. Examples of this are the Winchester Model 66 below. The Winchester's capacity was up to 18 rounds, depending on the caliber.
Before the turn of the 20th century, semi-automatic handguns with detachable magazines were manufactured. The picture below shows a Luger pistol with the optional 32-round worm barrel magazine. (Picture of a copy from 1914.)
Since then, handguns have only changed in better quality. Improvements in machine tools mean that parts are made better these days. Plastic polymers were introduced into firearms manufacture in the 1950s, so many guns these days use plastic for some of the parts. (In compliance with federal law, 18 USC 922 (r), a firearm must have at least 4 1/2 ounces of metal in the silhouette of a gun.) The invention of double-stack magazines made magazines more compact in the Glock 17 pistol below (invented early 1980s) the 17-round magazine fits completely into the handle.
For more information on magazine history, see my article, The History of Firearm Magazines and Magazine Prohibitions, 78 Albany Law Review 849 (2015), and Clayton E. Cramer and Joseph Edward Olson, Guns, Crime, and the Public: Safety in Early America 44, Willamette L. Rev. 699 (2008). Both articles were cited in Duncan, and the first article was cited by dissent in NJ Rifle II.