83 F.4th 803
9th Cir.2023Background
- California Penal Code §32310 prohibits manufacture, sale, transfer, possession, or receipt of "large-capacity magazines" (LCMs = magazines that accept >10 rounds). Plaintiffs (individuals and CRPA) sued claiming a Second Amendment violation; district court enjoined §32310 as unconstitutional (Sept. 22, 2023).
- California Attorney General Bonta filed an emergency motion for a partial stay pending appeal, seeking to preserve most of §32310 during appellate review (except certain provisions addressing pre‑existing, lawfully possessed magazines).
- An en banc Ninth Circuit panel considered the stay motion under the four-factor Nken/Hilton framework and issued a partial stay pending appeal.
- The majority concluded the State made a strong showing of likelihood of success (citing Bruen and inter-district splits), asserted irreparable public‑safety harms from an anticipated influx of LCMs, found limited injury to others, and held the public interest favored a stay.
- Dissenting judges argued the stay was improper under Bruen, criticized the panel’s summary treatment of the merits, and raised procedural objections to the en banc composition for this "comeback" appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a stay pending appeal should issue (Nken factors) | Deny stay: plaintiffs argued the injunction should remain because §32310 likely unconstitutional and the public interest favors protecting rights | Grant stay: AG argued likelihood of success on appeal, irreparable public‑safety harm without stay, limited injury to others, and public interest in safety | Stay granted in part: court concluded factors favor a stay pending full merits review (majority) |
| Whether LCMs are "Arms" in common use protected by the Second Amendment | LCMs are necessary components of commonly owned modern firearms and widely possessed for lawful self‑defense | State argued LCMs are not commonly used for lawful self‑defense and may be regulated for public safety | Panel did not finally decide merits; dissent and district court had held LCMs are protected; majority treated the State as likely to succeed for stay purposes |
| Whether California met Bruen’s historical‑analogue test to justify a categorical ban on LCMs | Plaintiffs: no historical analogues justify a ban; laws cited by State (trap guns, anti‑carry knife laws, later automatic‑weapon statutes, gunpowder rules) are not "relevantly similar" | State: historical regulations and later analogues support restrictions on dangerous, high‑capacity devices to protect public safety | Majority assessed posture for stay (not final merits). Dissent concluded State failed the Bruen analogue test and would deny a stay |
| Procedural propriety of retaining the motion en banc as a comeback appeal | Plaintiffs: implied challenge to procedure by arguing merits and urging prompt relief | State: emergency stay properly presented to en banc court under Ninth Circuit General Orders | Majority found en banc consideration proper; dissent argued en banc composition and comeback process raised substantial statutory questions under 28 U.S.C. §46(c) |
Key Cases Cited
- New York State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022) (text‑and‑history framework for Second Amendment challenges)
- District of Columbia v. Heller, 554 U.S. 570 (2008) (Second Amendment protects commonly used arms for self‑defense, especially in the home)
- McDonald v. City of Chicago, 561 U.S. 742 (2010) (Second Amendment applicable to the States through the Fourteenth Amendment)
- Nken v. Holder, 556 U.S. 418 (2009) (stay‑pending‑appeal standard and four‑factor test)
- Hilton v. Braunskill, 481 U.S. 770 (1987) (stay factors and equitable considerations)
- Fyock v. City of Sunnyvale, 779 F.3d 991 (9th Cir. 2015) (recognizing right to possess magazines necessary to render firearms operable)
- Duncan v. Bonta, 19 F.4th 1087 (9th Cir. 2021) (en banc) (Ninth Circuit precedent applying an interest‑balancing approach prior to Bruen)
- Teter v. Lopez, 76 F.4th 938 (9th Cir. 2023) (explaining Bruen’s "how and why" analogical inquiry)
- Index Newspapers LLC v. U.S. Marshals Serv., 977 F.3d 817 (9th Cir. 2020) (public‑interest considerations favor preventing violation of constitutional rights)
- Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) (upholding injunctions preventing deprivation of constitutional rights)
- Zepeda v. INS, 753 F.2d 719 (9th Cir. 1983) (government cannot claim injury from being enjoined from unconstitutional conduct)
- Luis v. United States, 578 U.S. 5 (2016) (constitutional rights implicitly protect closely related acts necessary to their exercise)