By Robert Phillips, Deputy District Attorney (Ret).

In November, 2021, the Ninth Circuit Court of Appeal in Duncan v. Bonta (9th Cir. 2021) 19 F.4th 1087, reversed a federal district court judge’s findings related to “large capacity magazines” (i.e., magazines that hold over 10 rounds; Pen. Code § 16740; 18 U.S.C. § 921(a)(31)(A)).  Federal district court judge Roger T. Benitez had ruled that California’s ban on large capacity magazines (see  Pen. Code § 32310) violated the Second Amendment.  (See Duncan v. Becerra (2019) 366 F.Supp.3rd 1131.)  The Ninth Circuit, in an en banc—11 justice—decision, overruled Judge Benitez on this issue, finding instead in a 7-to-4 decision that California reasonably chose to prohibit the possession of large-capacity magazines due to the danger they posed to society.  However, on June 30, 2022, the U.S. Supreme Court set aside the Ninth Circuit’s opinion, instructing the lower court (at 2022 U.S. LEXIS 3233) to reconsider their decision in light of the recent U.S. Supreme Court decision of New York State Rifle & Pistol Assn., Inc. v. Bruen (June 23, 2022) 597 U. S. __ [2022 U.S. LEXIS 3055] (See California Legal Update, Vol. 27, #7; July 2, 2022.)  In Bruen, the U.S. Supreme Court overturned a New York statute that precluded the obtaining of a concealed weapons permit absent the applicant being able to show that a “proper cause exists” for obtaining a permit, which in turn required the applicant to “demonstrate a special need for self-protection distinguishable from that of the general community.”  What Bruen did, in effect, was to strengthen pro-gun advocates’ arguments to the effect that the Second Amendment right to bear arms prevents (at least to some extent) the government (state or federal) from enacting restrictive gun laws.  We’ll have to wait and see how the Ninth Circuit applies the rule of Bruen as it relates to large capacity magazines.  Whatever the Ninth Circuit decides on this issue is then, of course, subject to review by the U.S. Supreme Court (although they’re real picky on the cases they choose to consider).  So stay tuned.  There’s more to come.

Keywords:  Second Amendment Update; Large Capacity Magazines