John Stone—Senior Attorney, National Legal Research Group
The Ninth Circuit Court of Appeals has held that assuming a California state statute prohibiting, with certain exceptions, the possession of large-capacity magazines holding more than 10 rounds of ammunition implicated the Second Amendment, the statute did not facially violate the Second Amendment. Under an intermediate scrutiny analysis, the court reasoned that the statute was a reasonable fit for an important government interest of reducing the devastating damage wrought by mass shootings. Because it outlawed no weapon, it interfered only minimally with the core right of self-defense of home and family, and it saved lives. Duncan v. Bonta, 19 F.4th 1087 (9th Cir. 2021). In so holding, the court reversed the decision of a federal district court that had granted a motion for summary judgment filed by the plaintiff gun owners. Duncan v. Becerra, 366 F. Supp. 3d 1131 (S.D. Cal. 2019).
According to the Ninth Circuit in Bonta, California law allows owners of large-capacity magazines to modify them to accept 10 rounds or fewer. Owners also can sell their magazines to firearm dealers or remove them from the state. The law in question, California Penal Code § 32310, also provides several exceptions to the ban on large-capacity magazines, including possession by active or retired law enforcement officers, security guards for armored vehicles, and holders of special weapons permits.
The court applied a two-step framework to review the Second Amendment challenge, asking first whether the challenged law affects conduct protected by the Second Amendment and, if so, what level of scrutiny to apply. It observed that 10 sister circuits have adopted a substantially similar two-step test. The court assumed, without deciding, that California's law implicates the Second Amendment and joined its sister circuits that have unanimously applied intermediate scrutiny to other laws banning or restricting large-capacity magazines. It determined that intermediate scrutiny applied because the ban imposed only a minimal burden on the core Second Amendment right to keep and bear arms.
The precise level of heightened scrutiny, when a law is challenged on Second Amendment grounds, depends on how close the law comes to the core of the Second Amendment right as well as the severity of the law's burden on the right. Strict scrutiny applies only to laws that both implicate a core Second Amendment right and place a substantial burden on that right, while intermediate scrutiny applies to laws that either do not implicate a core Second Amendment right or that do not place a substantial burden on that right.
The court in Bonta held that § 32310 was a reasonable fit for the important government interest of reducing gun violence. The statute does not outlaw any weapon, but it limits only the size of the magazine that may be used with firearms. The record in the case showed two important considerations. First, the limitation interferes only minimally with the core right of self-defense. There was no evidence that anyone has ever been unable to defend his or her home and family due to the lack of a large-capacity magazine. Second, the limitation saves lives. The court noted that in the past half-century, large-capacity magazines have been used in about 75% of gun massacres with 10 or more deaths, and in 100% of gun massacres with 20 or more deaths. More than twice as many people have been killed or injured in mass shootings that involved a large-capacity magazine as compared with mass shootings that involved a smaller-capacity magazine. Accordingly, the ban on legal possession of large-capacity magazines reasonably supported California's effort to reduce the devastating damage from mass shootings.
The challenged statute had no effect whatsoever on which firearms could be owned; owners of firearms could possess as many firearms, bullets, and magazines as they chose; and they could fire as many bullets as they wanted for whatever lawful purpose they chose. The court stated that the sole practical effect of the ban on large-capacity magazines was to require shooters to pause for a few seconds after firing 10 bullets, either to reload or to replace the spent magazine. Bonta, 19 F.4th at 1104.
Speaking more generally of intermediate scrutiny analysis, the majority in Bonta said that in applying intermediate scrutiny when the constitutionality of a statute is challenged, the court should defer to reasonable legislative judgments. Confronted with policy disagreements, or even conflicting legislative evidence, the court must permit the government to select among reasonable alternatives in its policy decisions. This approach recognizes that sound policymaking often requires legislators to forecast future events and to anticipate the likely impact of these events based on deductions and inferences for which complete empirical support may be unavailable. Id. at 1108.
More briefly addressing separate constitutional claims by the gun owner plaintiffs, the court held that § 32310 does not, on its face, effect a taking or violate the right to due process. The government acquires nothing by virtue of the limitation on the capacity of magazines. Moreover, because owners may modify or sell their nonconforming magazines, the law does not deprive owners of all economic use. The plaintiffs' due process claim, essentially restating the takings claim, failed for the same reasons.