VIRGINIA DUNCAN; еt al., Plaintiffs-Appellees, v. ROB BONTA, in his official capacity as Attorney General of the State of California, Defendant-Appellant.
No. 23-55805
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
OCT 10 2023
FOR PUBLICATION.
ORDER
Before: MURGUIA, Chief Judge, and S.R. THOMAS, GRABER, WARDLAW, PAEZ, BERZON, IKUTA, HURWITZ, R. NELSON, BUMATAY and VANDYKE, Circuit Judges.
When deciding whether to grant a stay pending appeal, “a court considers four factors: ‘(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.‘” Nken v. Holder, 556 U.S. 418, 425-26 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). Here, a stay is appropriate.
First, we conclude that the Attorney General is likely to succeed on the merits.1 In New York State Rifle & Pistol Ass‘n v. Bruen, the Supreme Court reiterated that “[l]ike most rights, the right secured by the Second Amendment is not unlimited.” 142 S. Ct. 2111, 2128 (2022) (quoting Dist. of Columbia v. Heller, 554 U.S. 570, 626 (2008)). The Attorney General makes strong arguments that
Second, the Attorney General has shown that California will be irreparably harmed absent a stay pending appeal by presenting evidence that large-capacity magazines pose significant threats to public safety. If a stay is denied, California indisputably will face an influx of large-capacity magazines like those used in mass shootings in California and elsewhere. As Plaintiffs concede, “[i]n 2019, when the district court first enjoined
Third, it does not appear that staying portions of the district court‘s order while the merits of this appeal are pending will substantially injure other parties interested in the proceеdings. This stay does not interfere with the public‘s ability “to purchase and possess a wide range of firearms, as much ammunition as they want, and an unlimited number of magazines
Finally, we conclude that the public interest tips in favor of a stay. The public has a compelling interest in promoting public safety, as mass shootings nearly always involve large-capacity magazines, and, although the public has an interest in possessing firearms and ammunition for self-defense, that interest is hardly affected by this stay.
In sum, we conclude that a stay pending appeal is warranted. We emphasize that at this stage of the litigation, we decide only whether to stay, in part, the district court‘s order while this appeal is pending.
Some of our colleagues have raised procedural questions regarding the propriety, under circuit rules and practices, of the en banc panel‘s decision to accept this appeal as a comeback case. These contentions are without merit. The Supreme Court has held that the governing statute leaves it to each Court of Appeals “to establish the procedure for exercise of the [en banc] power.” Western Pac. R.R. Corp. v. Western Pac. R.R. Co., 345 U.S. 247, 257 (1953). In this circuit, “matters arising after remand” are directed to the en banc court, which “will decide whether to keep the case or to refer it to the three judge panel.” Ninth Cir. Gen. Order 3.6(b). Here, the en banc panel has exercised its discretion to keep the comeback appeal, as our rules contemplate. “[W]hen a case is heard or reheard en banc, the en banc panel assumes jurisdiction over the entire case, see
One of our colleagues raises novel questions about whether our rules are consistent with
The Attorney General‘s emergency motion for a partial stay pending appeal (Doc. 2) is GRANTED.
R. NELSON, Circuit Judge, dissenting:
I join Judge Bumatay‘s dissent, as the majority‘s decision to stay the district court‘s order pending appeal cannot be squared with New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111 (2022).
But I have a more fundamental concern with the majority‘s decision to proceed with this new appeal en banc in the first instance. No other circuit court would allow a prior en banc panel to hear a comeback case without an intervening majority vote of the active judges.
In 2022, this panel remanded the prior appeal to the district court and the mandate issued. When this new appeal was filed, the appeal could have been sent to a three-judge panel; or a new en banc vote could have been requested from “all circuit judges in regular active service,”
The majority, however, chose a third option—one that raises serious questions
Just four years ago, we were chastened by the Supreme Court for ignoring
BUMATAY, Circuit Judge, joined by IKUTA, R. NELSON, and VANDYKE, Circuit Judges, dissenting:
If the proteсtion of the people‘s fundamental rights wasn‘t such a serious matter, our court‘s attitude toward the Second Amendment would be laughably absurd. For years, this court has shot down every Second Amendment challenge to a state regulation of firearms—effectively granting a blank check for governments to restrict firearms in any way they pleased. We got here by concocting a two-part tiers-of-scrutiny test, which permitted judges to interest-balance away the Second Amendment guarantee. But this approach was “nothing more than a judicial sleight-of-hand, . . . feign[ing] respect to the right to keep and bear arms” but never enforcing its protection. Duncan v. Bonta, 19 F.4th 1087, 1147 (9th Cir. 2021) (en banc) (Bumatay, J., dissenting).
Several of us warned that our precedent contradicted the commands of both the Constitution and the Supreme Court. See id. (Bumatay, J., dissenting, joined by Ikuta & R. Nelson, JJ.); id. at 1159 (VanDyke, J., dissenting). We cautioned this very panel of the need to jettison our circuit‘s ahistorical balancing regime and adhere to an analysis more faithful to the constitutional text and its historical understanding. But our warnings went unheard.
Last year, the Supreme Court had enough of lower courts’ disregard for the Second Amendment. It decisively commanded that we must no longer interest-balance a fundamental right and that we must look to the Second Amendment‘s text, history, and tradition to assess modern firearm regulations. N.Y. State Rifle & Pistol Ass‘n v. Bruen, 142 S. Ct. 2111, 2129-31 (2022). Now, firearm regulations may stand only after “the government . . . affirmatively prove[s] that [they are] part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Id. at 2127.
Despite this clear direction, our court once again swats down another Second Amendment challenge. On what grounds? Well, the majority largely doesn‘t think it worthy of explanation. Rather than justify California‘s law by looking to our historical tradition as Bruen commands, the majority resorts to simply citing various non-binding district court decisions. There‘s no
* * *
At issue here is California‘s ban on so-called large-caрacity magazines.1 See
California‘s ban on large-capacity magazines has moved up and down the federal courts since 2017. That year, several California citizens challenged the law‘s constitutionality. Two years later, the district court ruled that the ban was unconstitutional. Duncan v. Becerra, 366 F. Supp. 3d 1131, 1147 (S.D. Cal. 2019). On appeal, a three-judge panel affirmed that decision. Duncan v. Becerra, 970 F.3d 1133, 1141 (9th Cir. 2020). Our court took the case en banc. Duncan v. Becerra, 988 F.3d 1209, 1210 (9th Cir. 2021). A majority of that eleven-judge panel reversed, holding that interest-balancing favored the constitutionality of the law—just as we have done for every firearm regulation that our court has encountered. Duncan v. Bonta, 19 F.4th 1087 (9th Cir. 2021) (en banc). All four of us dissented from that decision. Id. at 1140 (Bumatay, J., dissenting, joined by Ikuta & R. Nelson, JJ.); id. at 1159 (VanDyke, J., dissenting). The Supreme Court vacated our en banc interest-balancing and remanded for further consideration in light of Bruen. Duncan v. Bonta, 142 S. Ct. 2895 (2022). Our en banc panel then rеmanded the case to the district court. Duncan v. Bonta, 49 F.4th 1228, 1231 (9th Cir. 2022).
The district court again ruled that California‘s large-capacity magazine ban violated the Constitution—this time using the clear instructions from Bruen. Duncan v. Bonta, No. 17-cv-1017-BEN (JLB), 2023 WL 6180472, at *35 (S.D. Cal. Sept. 22, 2023). In a thorough 71-page opinion, the district court held that magazines were protected arms under the Second Amendment and that California failed to meet its burden of showing a historical analogue for the prohibition. Id. The district court enjoined California officials from enforcing
In an unusual move, our en banc panel retained the emergency stay motion as a comeback case in the first instance—bypassing our traditional three-judge consideration of motions. Indeed, it‘s perhaps the first time our court has ever done so. The majority then granted an administrative stay, with four judges dissenting. Now a majority of the en banc court grants the stay pending appeal—with little analysis
Three times now, the Supreme Court has warned courts not to treat the Second Amendment as a disfavored right. See District of Columbia v. Heller, 554 U.S. 570, 594 (2008); McDonald v. City of Chicago, 561 U.S. 742, 780 (2010); Bruen, 142 S. Ct. at 2156. We should follow the Supreme Court‘s direction. Reviewing our historical tradition consistent with Bruen demonstrates that the Second Amendment does not countenance California‘s ban on large-capacity magazines. Because the majority once again deprives Californians of a fundamental right, we respectfully dissent.
I.
The Second Amendment‘s Text and Historical Understanding
The operative clause of the Second Amendment commands that the “right of the people to keep and bear Arms, shall not be infringed.”
Despite lower courts’ treatment of the constitutional provision for many years, the right to bear arms is not a “second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” Bruen, 142 S. Ct. at 2156 (simplified). The Second Amendment is not subject to “any judge-empowering interest-balancing inquiry.” Id. at 2129 (simplified). That‘s because “[t]he very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.” Id. (quoting Heller, 554 U.S. at 634). The Court thus rejected the two-part “means-end scrutiny” test adopted by our court. Id. at 2127.
In its place, the Supreme Court directed lower courts to follow a “fairly straightforward” methodology “centered on constitutional text and history.” Id. at 2128-29, 2131. Under this framework, courts are guided by “the plain text of the Second Amendment.” Id. at 2134. And “when the Second Amendment‘s plain text covers an individual‘s conduct, the Constitution presumptively protects that conduct.” Id. at 2126. Of course, this does not mean the Second Amendment‘s “textual elements” give people the “right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Id. at 2128 (quoting Heller, 554 U.S. at 626).
So what do the Second Amendment‘s “textual elements” convey?
First, when considering the “people” protected by the Second Amendment, “ordinary, law-abiding, adult citizens” are easily encompassed within the term. Id. at 2134.
Second, “Arms” refers to “weapons ‘in common use’ today for self-defense.” Id. Such a definition excludes “dangerous and unusual weapons.” Id. at 2128. And “Arms” does not mean “only . . . those arms in existence in the 18th century.” Id. at 2132 (quoting Heller, 554 U.S. at 554). Instead, it “covers modern instruments that facilitate armed self-defense.” Id.
Third, “keep” and “bear” denote the “course of conduct” protected by the Second Amendment. Id. at 2134-35. In Bruen, the ordinary definition of “bear” “naturally encompasses” “carrying handguns publicly for self-defense.” Id. And at a minimum, “keep” encompasses the possession of “firearms in the[] home, at the ready for self-defense.” Id. at 2134.
If the “course of conduct” at issue falls within the “textual elements” of the Second Amendment, then the Constitution “presumptively protects that conduct.” Id. at 2130, 2134. The burden then falls on the government to prove that the firearm regulation is “consistent with this Nation‘s historical tradition of firearm regulation.” Id. at 2126.
To answer this question, we must engage in “reasoning by analogy—a commonplace task for any lawyer or judge.” Id. at 2132. Thus, courts must determine whether a historical regulation serves as a “proper analogue” to modern firearm regulations. Id. And whether a historical regulation is a good fit as a historical analogue depends on whether they are “relevantly similar.” Id. (simplified). In turn, we judge similarity based on the “how and why” of the two regulations. Id. at 2132-33. That is, “whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified are central considerations when engaging in an analogical inquiry.” Id. at 2133 (simplified).
In conducting our inquiry, the Court left us with a warning: “[T]he Second Amendment is neither a regulatory straightjacket nor a regulatory blank check.” Id. While we are under no duty to “uphold every modern law that remotely resembles a historical analogue,” this inquiry “requires only that the government identify a well-established and representative historical analogue, not a historical twin.” Id. (simplified). So while the government doesn‘t need a “dead ringer for historical precursors,” it also cannot satisfy its burden by resorting to historical “outliers.” Id. (simplified).
To illustrate how this methodology works, we can look to the Court‘s analysis of New York‘s public-carry law in Bruen. New York sought to justify its restricted public-carry licensure scheme by referencing: (1) colonial and founding era common-law offenses prohibiting unpeaceable, public carry, id. at 2145-46; (2) mid-18th century proscriptions on concealed carrying of pistols and other small weapons, id. at 2146-47; and (3) mid-18th century surety statutes that required certain individuals to post bond before carrying weapons publicly, id. at 2148-50. The Court understood these historical regulations to raise the kinds of public-safety concerns raised by a strict public-carry requirement. But “because none operated to prevent law-abiding citizens with ordinary self-defense needs from carrying arms in public for that purpose,” they could not suffice to establish a “relevantly similar” analogue. Id. at 2132, 2150.
Finally, before turning to the application of this law to this case, we address a criticism often lodged at the Court‘s so-called “text, history, and tradition” approach—the confusion between “history” and “tradition.” What do “history” and “tradition” mean in this context? Do they mеan something different? Well, when assessing analogous regulations under the Second Amendment, it is relatively straightforward.
History means that analogous laws must be sufficiently “longstanding” and from the
Tradition, on the other hand, connotes that the comparison must be to laws with wide acceptancе in American society. Id. at 2136. Take territorial restrictions. The Court considered them unhelpful for historical analysis because they were “transitory” and “short lived.” Id. at 2155. Such “passing regulatory efforts by not-yet-mature jurisdictions” do little to show what is “part of an enduring [and broad] American tradition of state regulation.” Id. This is all the more true because territorial laws governed less than 1% of the American population at the time. Id. Tradition thus demands that we don‘t justify modern regulations with reference to “outliers,” such as a law from a “single State, or a single city, that contradicts the overwhelming weight of other evidence” on the meaning of the Second Amendment right. Id. at 2154 (simplified). On the other hand, laws that enjoyed “widespread” and “unchallenged” support form part of our tradition. Id. at 2137 (simplified).
With this understanding of the Second Amendment, we now turn to the emergency motion.
II.
California Is Not Entitled to a Stay
The State of California moves for an emergency stay of the injunction against enforcement of the State‘s large-capacity magazine ban pending appeal.
On review of a stay pending appeal, we must determine whether (1) Californiа has made “a strong showing that [it] is likely to succeed on the merits;” (2) California will be “irreparably injured absent a stay;” (3) issuance of the stay will “substantially injure the other parties interested in the proceeding;” and (4) the “public interest lies” with a stay. Nken v. Holder, 556 U.S. 426, 426 (2009) (simplified). The first two factors are “the most critical“; the last two factors become relevant only if California establishes the first two and they merge into one inquiry assessing the balance of the public and State‘s interests. Id. at 434; see also Doe #1 v. Trump, 984 F.3d 848, 861 (9th Cir. 2020) (“When the Government is a party to the case, the balance of the equities and public interest factors merge.“) (simplified). Ultimately, the issuance of a stay is a matter of discretion and California “bears the burden of showing that the circumstances justify an exercise of that discretion.” Nken, 556 U.S. at 433-34.
None of
A.
California‘s Magazine Ban Has No Likelihood of Success
California cannot succeed on the merits of this appeal.
As a recap, to determine whether a modern regulation survives a Second Amendment challenge, we first determine whether California‘s regulation burdens conduct within the Amendment‘s textual elements. Bruen, 142 S. Ct. at 2126. If so, “the Constitution presumptively protects that conduct” and the burden shifts to California to establish that the regulation is “consistent with this Nation‘s historical tradition of firearm regulation.” Id. To meet this burden, California must provide sufficient historical analogues to show that the regulation may escape the Second Amendment‘s “unqualified command.” Id. (simplified).
California‘s large-capacity magazine ban fails under this framework because possessing magazines holding more than ten rounds of ammunition by law-abiding citizens is protected conduct under the Second Amendment,2 and California has failed to show that the ban aligns with our historical tradition of firearm regulation.
1. Large-Capacity Magazines Are Protected “Arms” Under the Second Amendment
To start, California halfheartedly suggests that large-capacity magazines are not “Arms” under the
The term “bearable arms” includes any “[w]eapons of offence” or “thing that a man wears for his defence, or takes into his hands,” that is “carr[ied] . . . for the purpose of offensive or defensive action.” Heller, 554 U.S. at 581, 584 (simplified). Magazines are included within that definition. Without protection of the components that render a firearm operable, like magazines, the
possession of a firearm falls within the “keep and bear” textual element and so it is conduct protected by the
And it makes no difference that large-capacity magazines did not exist at the time of the Founding. While the
2. Large-Capacity Magazines Are Commonly Possessed for Self-Defense
California mainly argues that large-capacity magazines are not in “common use” for lawful purposes like self-defense. We take this question in two parts: First, whether large-capacity magazines are in “common use.” Second, whether they are used for self-defense.
a. Common Use
Both as a matter of modern statistics and historical analogy, large-capacity magazines and their analogues are in common use today and were at the time of the
While estimates vary, it is undisputed that more than 100 million large-capacity magazines circulate in the United States. One recent study cited by the district court found that Americans own 542 million magazines that hold more than 10 rounds today. Duncan, 2023 WL 6180472, at *4.3 And this fact isn‘t surprising given that those magazines are a standard component on many of the Nation‘s most popular firearms, such as the Glock pistol, which commonly comes with a magazine that can hold 17 rounds. They are lawful in at least 41 States and under federal law. They account for half of all magazines owned in the United States today.
And as a historical matter, the initial three-judge panel in this case rightfully concluded that “[f]irearms or magazines holding more than ten rounds have been in existence—and owned by American citizens—for centuries. Firearms with greater than ten round capacities existed even before our nation‘s founding, and the common use of [large-capacity magazines] for self-defense is apparent in our shared national history.” Duncan, 970 F.3d at 1147; see also David B. Kopel, The History of Firearm Magazines and Magazine Prohibitions, 78 Alb. L. Rev. 849, 851 (2015) (“In terms of large-scale commercial success, rifle magazines of more than ten rounds had become popular by the time the
We briefly chronicled the history of firearms firing more than ten rounds in the United States in our previous en banc dissent. See Duncan, 19 F.4th at 1154-55 (Bumatay, J., dissenting). From this history, the clear picture emerges that firearms able to fire more than ten rounds were widely possessed by law-abiding citizens by the
b. Lawful Purpose
While acknowledging that large-capacity magazines are commonly owned in this country, California argues that these magazines are not in common use for lawful purposes like self-defense. California‘s argument goes like this: Because an average of only 2.2 shots are fired in self-defense situations, magazines carrying more than ten shots are not used for self-defense. There are two main problems with this argument.
First, as an empirical and factual matter, the district court‘s findings undercut the State‘s argument. After examining the record, the district court concluded that
Second, and more importantly, California misunderstands the “lawful purposes” inquiry. As discussed below, the Supreme Court has never looked at the average number of times that a handgun had been fired in self-defense to determine whether it is commonly used for that purpose. See Heller, 554 U.S. at 628-36. Likewise, it is unnecessary to look at how often a law-abiding citizen fired a firearm more than ten times to fend off an attacker for our inquiry. Indeed, it would be troubling if our constitutional rights hung on such thin evidence.
And California‘s сonception of a firearm‘s “use” is overly cramped. While “use” will encompass the number of times the firearm is discharged, it is not limited to that. “Use” will also cover the possession of a firearm for a purpose even if not actually fired. Our criminal laws don‘t require the discharge of the firearm for it to be “used.” See, e.g., Smith v. United States, 508 U.S. 223 (1993). That‘s like saying we don‘t “use” our seatbelts whenever our cars don‘t crash. Cf. Bailey v. United States, 516 U.S. 137, 143 (1995) (acknowledging that “use draws meaning from its context,” such that someone can “use a gun to protect [his] house” while “never ha[ving] to use it” (simplified)). And that a citizen did not expend a full magazine does not mean that the magazine was not “used” for self-defense purposes, further undermining California‘s focus on the 2.2 statistic.
It is also immaterial that large-capacity magazines are not strictly “necessary” to ward off attackers. Lawful purpose, not necessity, is the test. And so it is not dispositive that a firearm or its component is not used to the full extent of its capabilities or that it is not absolutely necessary to accomplish its purpose. See Heller, 554 U.S. at 629 (holding it irrelevant to the constitutionality of D.C.‘s “handgun” ban that the law allowed citizens the possession of substitutes, like “long guns“). Indeed, we are glad that most law-abiding citizens never have to discharge their firearms in self-defense.
Rather than going down this statistical rabbit hole, the Supreme Court looked to Americans’ overall choice to use a firearm for self-defense. Take Heller and the District of Columbia‘s handgun ban. The Court didn‘t dissect statistics on self-defense situations or look at anecdotes of a handgun‘s use in self-defense. Instead, “[i]t
Hеre, large-capacity magazines are the most common magazine chosen by Americans for self-defense. Indeed, millions of semiautomatic pistols, the “quintessential self-defense weapon” for the American people, id., come standard with magazines carrying over ten rounds. That many citizens rely on large-capacity magazines to respond to an unexpected attack is enough for our inquiry. See Ass‘n of New Jersey Rifle & Pistol Clubs, Inc. v. Att‘y Gen. New Jersey, 910 F.3d 106, 116 (3d Cir. 2018) (“The record shows that millions of magazines are owned, often come factory standard with semi-automatic weapons, are typically possessed by law-abiding citizens for hunting, pest-control, and occasionally self-defense[.]” (simplified)), abrogated by Bruen, 142 S. Ct. at 2111. Even our court has begrudgingly admitted as much. See Fyock, 779 F.3d at 998 (“[W]e cannot say that the district court abused its discretion by inferring from the evidence of record that, at a minimum, [large-capacity] magazines are in common use. And, to the extent that certain firearms capable of use with a magazine—e.g., certain semiautomatic handguns—are commonly possessed by law-abiding citizens for lawful purposes, our caselaw supports the conclusion that therе must also be some corollary, albeit not unfettered, right to possess the magazines necessary to render those firearms operable” (simplified)).4
In sum, firearms with magazines capable of firing more than ten rounds are commonplace in America today. And they are widely possessed for the purpose of self-defense, the very core of the
3. The Large-Capacity Magazine Ban Is Not Consistent with the Nation‘s Historical Tradition of Firearm Regulation
Once it is established that large-capacity magazines are protected arms used for
In determining whether the modern regulation and the historical analogue are “relevantly similar,” we must look to the “how and why” of the two regulations; that is, “whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified are central considerations when engaging in an analogical inquiry.”
Teter v. Lopez, 76 F.4th 938, 951 (9th Cir. 2023) (quoting Bruen, 142 S. Ct. at 2132-33).
California points to four historical analogues to defend its absolute ban on large-capacity magazines: (1) regulations on “trap gun” contraptions; (2) regulations on the carry of fighting knives and certain blunt objects and on the concealed carry of pistols and revolvers; (3) regulations on the use and possession of fully automatic and semi-automatic firearms and ammunition feeding devices; and (4) regulations on the storage of gunpowder.
But these historical analogues do not even come close to the “relevantly similar” laws required by the Supreme Court.
a. Laws Regulating Trap-Gun Mechanisms
California first points to regulations on “trap gun” mechanisms as a historical analogue for the banning of large-capacity magazines. These devices refer to string or wire contraptions that allowed a firearm to be discharged remotely when triggered—without a user present. According to California, 16 States had laws against trap-gun devices, with the laws being enacted after the 1870s except for a New Jersey ordinance dating to 1771.5 The New Jersey law, for example, proscribed “a most dangerous Method of setting Guns” when the gun is rigged “in such Manner” as to “discharge itself, or be discharged by any String, Rope, or other Contrivance.” 1763-1775 N.J. Laws 346, An Act for the Preservation of Deer and Other Game, and to Prevent Trespassing with Guns, ch. 539, § 10.
Even if these laws are temporally relevant and could be considered part of our tradition, there‘s an obvious problem with California‘s comparison of trap-gun devices to large-capacity magazines—trap-gun devices are not a firearm or even part of a firearm. According to California‘s expert, the devices are made from string or wire hooked up to firearms. So it‘s doubtful that trap-gun devices themselves fall with the “Arms” protected by the
But even if we viewed trap-gun contraptions as subject to the
b. Laws Regulating the Carry of Fighting Knives and Blunt Objects and the Concealed Carry of Pistols
California next justifies its ban by looking at laws regulating the carrying of bowie knives, long-bladed knives, clubs, and blunt weapons and the concealed carry of pistols. Acсording to California, in the 1830s, four States enacted laws barring the carrying of bowie knives, which later expanded to most States by the 20th century. California‘s expert also asserts that several States enacted “anti-carry laws” for clubs and other blunt weapons. Finally, California claims that, by 1868, about a dozen States had laws prohibiting carrying concealed pistols. These historical analogues also fail to meet California‘s burden.
Again, assuming the laws are historically relevant and part of our tradition, most of these statutes suffer from a similar flaw: They did not ban the possession of a weapon. Instead, they mostly regulated the open or concealed carrying of certain knives, clubs, or firearms. As for laws on knives and clubs, they dealt mostly with carrying, concealed carry, or taxes.6 In its emergency motion, California identifies no specific historical law banning the possession of a knife or club.7 As for the concealed-pistol laws, the district court concluded that none prohibited keeping pistols for all lawful purposes or carrying the guns openly. Duncan, 2023 WL 6180472, at *62. Nor has California identifiеd laws banning the possession of a pistol at home.
On the other hand, we agree with the district court that it is “remarkable” that no law categorically banning all law-abiding citizens from keeping or possessing a firearm existed during the relevant time periods. Id. at *49. According to one scholar cited by the district court, the first regulation prohibiting all law-abiding citizens from simple ownership of a gun came in 1911—too late for our purposes. Id. (citing Robert H. Churchill, Forum: Rethinking the
California argues that this distinction makes no difference—that we should treat anti-carry and anti-possession laws as equivalent. But that ignores both Heller
And in Heller, the Supreme Court made clear that the need for “defense of self, family, and property is most acute” at “the home.” 554 U.S. at 628. The
Contrary to the State‘s contention, the distinction between anti-carry and anti-possession laws is critical. The former limits only the way a person may use a firearm in public. The latter categorically denies all possession of a firearm for any purpose—even at home. While restrictions on carrying a firearm—whether open or concealed—are a significant burden, the burden of prohibiting a large-capacity magazine anywhere, including in the home for self-defense, is greater in kind and magnitude.
Indeed, we recently rejected a similar argument when Hawaii made it illegal to possess “butterfly knives.” See Teter, 76 F.4th at 951. We noted that laws banning carrying a weapon are “different” than lаws banning possession because “they regulate different conduct.” Id. Thus, when confronted with statutes that regulated only the carry of knives, we considered it more important that Hawaii had not identified a statute “categorically bann[ing] the possession of any type of pocketknife.” Id.
c. Laws Regulating Fully Automatic and Semi-Automatic Firearms and Ammunition Feeding Devices.
California next argues that 20th-century restrictions on automatic and semi-automatic firearms and ammunition feeding devices act as historical analogues. California groups a wide range of laws in this category. Some focused solely on semi-automatic weapons capable of firing a set number of rounds. Others on only fully automatic firearms. Id. More still covered firearms of both types. Id. The one commonality for all these laws is that they were all enacted after 1917, with most passed after 1932. Thus, they cannot serve as historical analogues justifying a large-capacity magazine ban.
Given their recent vintage, these regulations offer little support for the original public meaning of the
Here, the restrictions on automatic and semi-automatic firearms and ammunition feeding devices are far too late to shed meaningful light on the original meaning of the
Plus, to the extent that these laws ban automatic weapons or features of automatic weapons, like maсhine guns, such weapons are not analogous to large-capacity magazines. Those weapons function differently, have a different historical lineage and record of use, and offer a different type of hazard than large-capacity magazines. Accordingly, automatic weapons would warrant a separate consideration of history and tradition under the
d. Laws Regulating Gunpowder Storage
California lastly relies on 18th- and 19th-century gunpowder-storage laws. Concerned with the dangers of massive fires and explosions, the laws prohibited the stockpiling of large quantities of gunpowder in one place. Take the 1784 New York City law. It made it unlawful “to have or keep any quantity of gun powder exceeding twenty-eight pounds weight, in any one place, less than one mile to the northward of the city hall . . . except in the public magazine at the Fresh-water.” 1784 N.Y. Laws 627, An Act to Prevent the Danger Arising frоm the Pernicious Practice of Lodging Gun Powder in Dwelling Houses, Stores, or Other Places, ch. 28. Another 1821 Maine law did the same “for the prevention of damage by Fire.” 1821 Me. Laws 98-99, An Act for the Prevention of Damage by Fire, and the Safe Keeping of Gun Powder, ch. 25, § 5.
These gunpowder-storage restrictions fail to establish a historical tradition supporting a large-capacity magazine ban. First, these laws do not offer a comparable burden on the possession of a firearm or the way it is discharged. While California‘s ban on large-capacity magazines is directed at prohibiting a firearm from firing more than ten rounds at once, the gunpowder laws were only directed at preventing the accumulation of explosive material. Foreclosing gun owners from using the most common magazine is a starkly greater burden than limiting the storage of gunpowder for fire safety. In other words, gunpowder storage laws would have a minimal effect on law-abiding citizens’ use of firearms for self-defense. The same cannot be said for limits on firing more than ten rounds at once.
Indeed, the Supreme Court was well acquainted with these gunpowder laws at the time of Heller. Justice Breyer, in dissent, referred extensively to these laws as an analogue to the District of Columbia‘s handgun ban. Heller, 554 U.S. at 685-87 (Breyer, J., dissenting). But the Court rejected that comparison: “Justice BREYER cites . . . gunpowder-storage laws that he concedes did not clearly prohibit loaded weapons, but required only that excess gunpowder be kept in a special container or on the top floor of the home. Nothing about those fire-safety laws undermines our analysis; they do not remotely burden the right of self-defense as much as an absolute ban on handguns.” Id.
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Based on this analysis, no historical analogue justifies California‘s ban. It thus will not succeed on the merits.
B. California‘s Asserted Irreparable Injury Does Not Justify a Stay
Beyond likelihood of success on the merits, California also fails to establish a sufficient irreparable injury to warrant a stay. “[A]t this juncture, the government has the burden of showing that irrеparable injury is likely to occur during the period before the appeal is decided.” Doe #1 v. Trump, 957 F.3d 1050, 1059 (9th Cir. 2020).
Often, a State may “suffer a form of irreparable injury” when it is “enjoined by a court from effectuating statutes enacted by representatives of its people.” Maryland v. King, 567 U.S. 1301, 1303 (2012) (simplified) (Roberts, C.J., in chambers); see also Coalition for Econ. Equity v. Wilson, 122 F.3d 718, 719 (9th Cir. 1997). But that doesn‘t always settle the question. We‘ve long said that the government “cannot reasonably assert that it is harmed in any legally cognizable sense by being enjoined from constitutional violations.” Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1983); Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013) (holding that the government “cannot suffer harm from an injunction that merely ends an unlawful practice“).
With this background, California cannot make a strong showing of irreparable harm sufficient to tip this factor in favor of a stay. California argues that without a stay, large-capacity magazines would immediately flood the State. But, as we‘ve said, California does not suffer any harm by being prevented from infringing
Even still, nothing in the district court‘s injunction prevents California‘s enforcement of its rigorous background, registration, and prohibited-person laws. See, e.g.,
Moreover, we cannot ignore large-capacity magazines’ ubiquity elsewhere in the country. As stated earlier, it is undisputed that over 100 million large-capacity magazines exist nationwide—with some estimates being five times that number. They account for half of all magazines nationwide. Likely tens of millions of these magazines already exist in other parts of the Ninth Circuit. Indeed, the majority even concedes that Californians purchased millions of large-capacity magazines in 2019. Given the widespread popularity and common usage of large-capacity magazines, we need not defer to California‘s speculative prediction of catastrophic harm.
Given these considerations, California has not made a sufficient showing оf irreparable harm.
C. The Balance of Interests Favors No Stay
For the balance-of-interests factor, we generally “explore the relative harms to
We acknowledge that California has a legitimate interest in promoting public safety and preventing gun violence. And, in general, the State may enact laws to further these aspirations. We also don‘t doubt California‘s sincere belief that large-capacity magazines may pose “particular threats to public safety.” For example, California points to statistics showing the use of large-capacity magazines in mass shootings. While California‘s concerns are serious, they are not enough to tip this factor in favor of a stay.
We reach this conclusion for three reasons:
First, “[i]t is always in the public interest to prevent the violation of a party‘s constitutional rights.” Index Newspapers, 977 F.3d at 838 (simplified); see also Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013) (“[E]nforcement of an unconstitutiоnal law is always contrary to the public interest.“). California‘s ban deprives its citizens of the ability to fire a gun more than ten times in self-defense. Contrary to the majority‘s claim, the existence of a “wide range of firearms“—which cannot fire more than ten rounds without reloading—does not mitigate that deprivation. So the public interest favors denying a stay here.
Second, as stated above, California can have “no legitimate interest in enforcing an unconstitutional ordinance.” KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1272 (11th Cir. 2006). So any conversation about the importance of the State‘s interests in public safety and the prevention of gun violence ends when the means used to further them violate the Constitution. Thus, California cannot point to a strong interest on its side.
Finally, we cannot forget that the Supreme Court has very clearly ended interest balancing when it comes to the
The balance of public and State interests is clear. It weighs against granting a stay.
III.
Over and over, our circuit has enjoined government actions that would lead to “the deprivation of constitutional rights,” much like the district court did here. Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (simplified). We have done this for the
This court has repeatedly acquiesced to the violation of Californians’ right to bear arms. Now it does so again, without even analyzing the merits of this case. Enough should be enough.
We respectfully dissent.