Virginia Duncan v. Xavier Becerra
970 F.3d 1133
9th Cir.2020Background
- California Penal Code § 32310 (2016, via S.B. 1446 and Proposition 63) criminalizes possession of any magazine that holds more than ten rounds (large-capacity magazines, “LCMs”), with limited exceptions and penal sanctions including up to one year in jail; owners may remove, sell to a dealer, or surrender magazines and may permanently modify magazines to 10 rounds or fewer.
- Historically California regulated manufacture/sale earlier (2000 onward) and incrementally expanded restrictions before the 2016 possession ban; nationwide, LCMs are widespread (estimates ~115 million LCMs; roughly half of U.S. magazines).
- Plaintiffs (owners who lawfully acquired LCMs) challenged § 32310 as violating the Second Amendment (and asserted a Takings Clause claim); the district court entered a preliminary injunction and later granted summary judgment for plaintiffs, holding the ban unconstitutional.
- The Ninth Circuit panel (majority opinion by Judge Lee) affirmed summary judgment: it held magazines are protected "arms," LCMs are commonly owned and not "unusual," the ban is not longstanding, strict scrutiny applies to the ban on possession, and § 32310 fails strict (and would also fail intermediate) scrutiny.
- Judge Lynn dissented: she would apply intermediate scrutiny (following Fyock and multiple sister-circuit decisions) and would uphold § 32310 as substantially related to important public-safety interests.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 32310 burdens conduct protected by the Second Amendment | Magazines are necessary components of firearms used for lawful self‑defense; LCMs are commonly owned and typically lawfully used | LCMs are military‑style, unusually dangerous, and may fall outside protection; some defenses invoke longstanding regulation tradition | Yes — magazines are "arms," LCMs are commonly owned/not "unusual," and § 32310 is not a longstanding regulation; it burdens protected conduct |
| Whether LCMs are "dangerous and unusual" (thus unprotected) | LCMs are widespread historically and today, used in common defensive handguns; not unusual | LCMs are most useful in military service and pose special risks | Not "dangerous and unusual" for Second Amendment purposes — commonality and lawful use keep them protected |
| Proper level of scrutiny for a possession ban on LCMs | Strict scrutiny: the ban strikes at the core right of self‑defense in the home and is a near‑categorical prohibition | Intermediate scrutiny (per Fyock) or deference to legislative judgments about public safety | Strict scrutiny applies because the law targets the core right and imposes a substantial burden (court also held the law would fail intermediate scrutiny) |
| Whether § 32310 survives constitutional review | Statute fails: although preventing gun violence is compelling, the statewide near‑categorical ban is not narrowly tailored/least restrictive; no meaningful grandfathering | Statute serves compelling/important public‑safety interests and is substantially related to reducing mass‑shooting lethality and protecting officers/public | § 32310 does not survive strict scrutiny (and would fail intermediate scrutiny on the record) — statute unconstitutional as applied to plaintiffs |
Key Cases Cited
- District of Columbia v. Heller, 554 U.S. 570 (2008) (Second Amendment protects individual right to possess functional handguns for self‑defense; some longstanding prohibitions permissible)
- McDonald v. City of Chicago, 561 U.S. 742 (2010) (Second Amendment incorporated against the states via Fourteenth Amendment)
- United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013) (Two‑step framework for evaluating Second Amendment regulations)
- Jackson v. City & County of San Francisco, 746 F.3d 953 (9th Cir. 2014) (arms/ammunition analysis; core rights and alternative‑channels reasoning)
- Fyock v. City of Sunnyvale, 779 F.3d 991 (9th Cir. 2015) (preliminary‑injunction posture addressing LCM ban; applied intermediate scrutiny on limited record)
- Silvester v. Harris, 843 F.3d 816 (9th Cir. 2016) (application of intermediate scrutiny to storage/waiting‑period–type rules)
- Pena v. Lindley, 898 F.3d 969 (9th Cir. 2018) (analysis of fit and role of grandfather clauses in intermediate‑scrutiny review)
- Heller v. District of Columbia (Heller II), 670 F.3d 1244 (D.C. Cir. 2011) (assessed assault‑weapon and magazine restrictions under intermediate scrutiny)
- New York State Rifle & Pistol Ass’n v. Cuomo, 804 F.3d 242 (2d Cir. 2015) (upheld certain restrictions under intermediate scrutiny; discussed common‑use analysis)
- Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) (en banc) (held LCMs unprotected under an analysis treating them as principally military; court noted split among circuits)
- Ass’n of N.J. Rifle & Pistol Clubs v. Attorney Gen. N.J., 910 F.3d 106 (3d Cir. 2018) (held LCM restriction survived intermediate scrutiny)
- Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011) (recognized training/access implications when regulation effectively forecloses meaningful exercise of self‑defense rights)
- Staples v. United States, 511 U.S. 600 (1994) (historical analysis of firearm types relevant to modern regulatory scope)