VIRGINIA DUNCAN; RICHARD LEWIS; PATRICK LOVETTE; DAVID MARGUGLIO; CHRISTOPHER WADDELL; CALIFORNIA RIFLE & PISTOL ASSOCIATION, INC., а California corporation, Plaintiffs-Appellees, v. XAVIER BECERRA, in his official capacity as Attorney General of the State of California, Defendant-Appellant.
No. 19-55376
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
August 14, 2020
D.C. No. 3:17-cv-01017-BEN-JLB
FOR PUBLICATION
OPINION
Appeal from the United States District Court for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted
Pasadena, California
Filed August 14, 2020
Before: Consuelo M. Callahan and Kenneth K. Lee, Circuit Judges, and Barbara M. G. Lynn,* District Judge.
Opinion by Judge Lee;
Dissent by Judge Lynn
SUMMARY**
Second Amendment
The panel affirmed the district court‘s summary judgment in favor of plaintiffs challenging
The Ninth Circuit employs a two-prong inquiry to determine whether firearm regulations violate the Second Amendment: (1) whether the law burdens conduct protected by the Second Amendment; and (2) if so, what level of scrutiny to apply to the regulation. United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013)
The panel held that under the first prong of the test,
Proceeding to prong two of the inquiry, the panel held that strict scrutiny was the appropriate standard to apply. First, the panel held that
The panel held that
The panel held that even if intermediate scrutiny were to apply,
Chief District Judge Lynn dissented, and would reverse the district court‘s grant of summary judgment. Judge Lynn wrote that the majority opinion conflicted with this Circuit‘s precedent in Fyock, and with decisions in all the six sister Circuits that addressed the Second Amendment issue presented here. Judge Lynn would hold that intermediate scrutiny applies, and
COUNSEL
John D. Echeverria (argued), Deputy Attorney General; Mark R. Beckington,
Erin E. Murphy (argued), Paul D. Clement, Kasdin M. Mitchell, and William K. Lane III, Kirkland & Ellis LLP, Washington, D.C.; C.D. Michel, Sean A. Brady, and Anna M. Barvir, Michel & Associates P.C., Long Beach, California; for Plaintiffs-Appellees.
Scott D. Danzis, Thomas C. Villalon, Rafael Reyneri, and Nora Conneely, Covington & Burling LLP, Washington, D.C.; Jonathan E. Lowy and T. Tanya Schardt, Brady, Washington, D.C.; for Amicus Curiae Brady.
Jonathan K. Baum, Katten Muchin Rosenman LLP, Chicago, Illinois; Mark T. Ciani, Katten Muchin Rosenman LLP, New York, New York; for Amici Curiae California Chapter of the American College of Emergency Physicians; American Academy of Pediatrics, California; and California Academy of Family Physicians.
Karl A. Racine, Attorney General; Loren L. Alikhan, Solicitor General; Caroline S. Van Zile, Deputy Solicitor General; Sonya L. Lebsack, Assistant Attorney General; Office of the Solicitor General, Washington, D.C.; William Tong, Attorney General, Hartford, Connecticut; Clare E. Connors, Attorney General, Honolulu, Hawaii; Brian E. Frosh, Attorney General, Baltimore, Maryland; Gurbir S. Grewal, Attorney General, Trenton, New Jersey; Letitia James, Attorney General, New York, New York; Keith Ellison, Attorney General, St. Paul, Minnesota; Kathleen Jennings, Attorney General, Wilmington, Delaware; Kwame Raoul, Attorney General, Chicago, Illinois; Maura Healey, Attorney General, Boston, Massachusetts; Hector Balderas, Attorney General, Santa Fe, New Mexico; Dana Nessel, Attorney General, Lansing, Michigan; Ellen F. Rosenblum, Attorney General, Salem, Oregon; Josh Shapiro, Attorney General, Harrisburg, Pennsylvania; Thomas J. Donovan Jr., Montpelier, Vermont; Robert W. Ferguson, Attorney General, Olympia, Washington; Peter F. Neronha, Attorney General, Providence, Rhode Island; Mark R. Herring, Attorney General, Richmond, Virginia; for Amici Curiae District of Columbia, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, New Mexico, New York, Michigan, Minnesota, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington.
Dennis J. Herrera, City Attorney; Aileen McGrath, Co-Chief of Appellate Litigation; City Attorney‘s Office, San Francisco, California; for Amicus Curiae City and County of San Francisco.
Michael N. Feuer, City Attorney; James P. Clark, Kathleen Kenealy, Blithe Smith Bock, and Danielle L. Goldstein, Office of the City Attorney, Los Angeles, California; for Amicus Curiae City of Los Angeles.
Antonio J. Perez-Marques and Antonio M. Haynes, Davis Polk & Wardwell LLP, New York, New York; Eric Tirschwell, Mark Anthony Frassetto, and William J. Taylor Jr., Everytown Law, New York, New York; for Amicus Curaie Everytown for Gun Safety.
Scott A. Edelman, Gibson Dunn & Crutcher LLP, Los Angeles, California; Vivek R. Gopalan and Matthew C. Reagan, Gibson Dunn & Crutcher LLP, San Francisco, California; Kathryn M. Cherry, Gibson Dunn & Crutcher LLP, Dallas, Texas; Hannah Shearer and Hannah Friedman, Giffords Law Center to Prevent Gun Violence, San Francisco, California; for Amicus Curiae Giffords Law Center to Prevent Gun Violence.
James E. Hough, Jamie A. Levitt, and Cesar A. Francia, Morrison & Foerster
Nezida S. Davis, Bakari Law LLC, Decatur, Georgia; Stephen P. Halbrook, Fairfax, Virginia; for Amici Curiae National African American Gun Association Inc. and Pink Pistols.
John Parker Sweeney, James W. Porter III, Marc A. Nardone, and Candice L. Rucker, Bradley Arant Boult Cummings LLP, Washington, D.C., for Amicus Curiae National Rifle Association of America Inc.
Robert J. Olson, Jeremiah L. Morgan, William J. Olson, and Herbert W. Titus, William J. Olson P.C., Vienna, Virginia; Joseph W. Miller, Joseph Miller Law Offices LLC, Fairbanks, Alaska; Steven C. Bailey, Ramona, California; for Amici Curiae Gun Owners of America Inc., Gun Owners Foundation, Gun Owners of California, California Constitutional Rights Foundation, Virginia Citizens Defense League, Conservative Legal Defense and Education Fund, Policy Analysis Center, The Heller Foundation, and Restoring Liberty Action Committee.
Lawrence G. Keane and Benjamin F. Erwin, National Shooting Sports Foundation Inc., Newtown, Connecticut; Craig A. Livingston and Crystal L. Van Der Putten, Livingston Law Firm P.C., Walnut Creek, California; for Amicus Curiae National Shooting Sports Foundation Inc.
Dan M. Peterson, Dan M. Peterson PLLC, Fairfax, Virginia, for Amici Curiae Law Enforcement Groups and State and Local Firearms Rights Groups.
Joseph G.S. Greenlee, Firearms Policy Coalition, Sacramento, California; George M. Lee, Seiler Epstein LLP, San Francisco, California; for Amici Curiae William Wiese, Jeremiah Morris, Lance Cowley, Sherman Macaston, Clifford Flores, L.Q. Dang, Frank Federau, Alan Normandy, Todd Nielsen, California Gun Rights Foundation, Firearms Policy Coalition, Firearms Policy Foundation, Armed Equality, San Diego County Gun Owners, Orange County Gun Owners, Riverside County Gun Owners, California County Gun Owners, and Second Amendment Foundation.
Donald E. J. Kilmer Jr., Law Offices of Donald E. J. Kilmer Jr. APC, San Jose, California, for Amicus Curiae Madison Society Inc.
John Cutonilli, Garrett Park, Maryland, as Amicus Curiae.
OPINION
LEE, Circuit Judge:
In the wake of heart-wrenching and highly publicized mass shootings, the state of California barred its citizens from owning so-called “large capacity magazines” (LCMs) that hold more than ten rounds of ammunition. But even well-intentioned laws must pass constitutional muster. California‘s near-categorical ban of LCMs strikes at the core of the Second Amendment — the right to armed self-defense. Armed self-defense is a fundamental right rooted in tradition and the text of the Second Amendment. Indeed, from pre-colonial times to today‘s post-modern era, the right to defend hearth and home has remained paramount.
California‘s law imposes a substantial burden on this right to self-defense. The
The state of California has latitude in enacting laws to curb the scourge of gun violence, and has done so by imposing waiting periods and many other limitations. But the Second Amendment limits the state‘s ability to second-guess a citizen‘s choice of arms if it imposes a substantial burden on her right to self-defense. Many Californians may find solace in the security of a handgun equipped with an LCM: those who live in rural areas where the local sheriff may be miles away, law-abiding citizens trapped in high- crime areas, communities that distrust or depend less on law enforcement, and many more who rely on their firearms to protect themselves and their families. California‘s almost-blanket ban on LCMs goes too far in substantially burdening the people‘s right to self-defense. We affirm the district court‘s summary judgment, and hold that
BACKGROUND
A. California Penal Code section 32310 prohibits the people from owning LCMs.
In 2016, California amended
But
Ten years later, California declared unlawfully possessed LCMs to be a nuisance subject to confiscation and destruction. See
It may seem that after the 2013 amendments, California had completed the circle in regulating LCMs. By then, the state had long since foreclosed the transfer and sale of LCMs. As of 2013, it prohibited their purchase and receipt. But the law still allowed Californians who lawfully bought LCMs well before
B. Large capacity magazines are prevalent in America.
Millions of Americans across the country own LCMs. One estimate based in part on government data shows that from 1990 to 2015, civilians possessed about 115 million LCMs out of a total of 230 million magazines in circulation. Put another way, half of all magazines in America hold more than ten rounds. Today, LCMs may be lawfully possessed in 41 states and under federal law.
Notably, LCMs are commonly used in many handguns, which the Supreme Court has recognized as the “quintessential self-defense weapon.” District of Columbia v. Heller, 554 U.S. 570, 629 (2008). For example, several variants of the Glock pistol — dubbed “America‘s gun” due to its popularity3 — come standard with a seventeen-round magazine. Almost all Glock models, except for subcompact variants designed for concealed carry, come standard with magazine capacities greater than ten rounds. Another popular handgun used for self-defense is the Beretta Model 92, which entered the market in 1976 and comes standard with a sixteen-round magazine. Indeed, many popular handguns commonly used for self-defense are typically sold with LCMs.4
C. Procedural history.
Virginia Duncan and other plaintiffs, who lawfully acquired LCMs or represent those who do (collectively, the “Owners“), brought a constitutional challenge to
On the Second Amendment claim, the court rested its extensive decision on three independent holdings. First, it concluded that
Second, the court held that
Based on these conclusions, the district court found no genuine dispute of material fact that
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under
ANALYSIS
The state of California5 argues that the district court erred by granting summary judgment for the Owners. We disagree with the government‘s position, and we affirm.
The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed.”
From 1639 to 1660, the British people endured a civil war — and the creation and dissolution of a Republic during the Interregnum — until the Stuart Monarchy Restoration. Starting in 1662, the Catholic Stuarts persecuted their political enemies, enacting laws that dispossessed all arms from those deemed “dangerous to the peace of the kingdom.” 13 & 14 Car. II c. 3 (1662). In 1670, Charles II further restricted possession of “guns” to the exclusive benefit of the wealthy — the purpose being the “prevention of popular insurrections and resistance to the government, by disarming the bulk of the people.” 22 Car. II c. 25 (1670); 2 William Blackstone, Commentaries *412. In the continuing tumult of the Protestant Reformation, James II and VII continued these policies by trying to disarm Protestants while allowing Catholics to maintain arms. Such despotism led to the King‘s ouster through the Glorious Revolution of 1688, and the enactment of the Declaration of Rights in 1689. Among these “true, ancient and indubitable rights” was the right of “[Protestants] [to] have Arms for their Defence suitable to their Condition, and as are allowed by Law.” 1 W. & M., Sess. 2, c.2 (1689); see also Heller, 554 U.S. at 592-93.
In April 1775 and closer to home, a rag-tag group of private citizens, armed only with their personal firearms and makeshift weapons, fired the “shot heard round the world” in Concord, Massachusetts. Reminders of British efforts to confiscate personal firearms filled the Founders’ minds when drafting the Bill of Rights in 1789. During the ratification of the Constitution, Antifederalists raised alarm over a potentially despotic national government that could disarm the people, as occurred under the Stuart Kings and other British regimes. See McDonald, 561 U.S. at 768. In response, the Federalists agreed to include a Bill of Rights, which, of course, featured the right to bear arms. See Id. at 769.
In sum, self-defense “is a basic right, recognized by many legal systems from ancient times to the present day, and... individual self-defense is ‘the central component’ of the Second Amendment right.” McDonald, 561 U.S. at 767 (citing Heller, 544 U.S. at 599) (emphasis and internal citation omitted). Heller‘s holding ultimately led the Court to invalidate a District of Columbia law that virtually banned handgun possession in the home and further required all other firearms to be “unloaded and disassembled or bound by a trigger
But the ruling in Heller was “not unlimited” and rejected the idea that citizens may “keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Id. at 626. Heller thus recognized that certain exceptions to the Second Amendment apply. For example, weapons that are “dangerous and unusual” fall outside the Second Amendment‘s protection. Id. at 627. Furthermore, the Court cited an open-ended list of “presumptively lawful regulatory measures” that constitute acceptable “longstanding prohibitions” on firearm ownership. Id. at 626-27, 627 n.26. Such prohibitions include possession of firearms by felons and the mentally ill, prohibitions on carriage in sensitive locations, and conditions or qualifications on the commercial sale of firearms. Id.
II. Under this court‘s precedent, California Penal Code section 32310 runs afoul of the Second Amendment.
Applying this court‘s precedent, we hold that strict scrutiny is the proper standard of constitutional review.
A. The Ninth Circuit employs a two-prong test to determine whether firearm regulations violate the Second Amendment.
The Ninth Circuit assesses the constitutionality of firearm regulations under a two-prong test. This inquiry “(1) asks whether the challenged law burdens conduct protected by the Second Amendment and (2) if so, directs courts to apply an appropriate level of scrutiny.” United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013) (internal citations omitted).
To determine whether the law burdens protected conduct, this court appears to ask four questions. First, as a threshold matter, we determine whether the law regulates “arms” for purposes of the Second Amendment. See Jackson v. City and Cty. of San Francisco, 746 F.3d 953, 967 (9th Cir. 2014). Second, we ask whether the law regulates an arm that is both dangerous and unusual. See United States v. Henry, 688 F.3d 637, 640 (9th Cir. 2012) (citing Heller, 554 U.S. at 627). If the regulated arm is both dangerous and unusual, then the regulation does not burden protected conduct and the inquiry ends. Third, we assess whether the regulation is longstanding and thus presumptively lawful. See Chovan, 735 F.3d at 1137. And fourth, we inquire whether there is any persuasive historical evidence in the record showing that the regulation affects rights that fall outside the scope of the Second Amendment. See Silvester v. Harris, 843 F.3d 816, 821 (9th Cir. 2016). If either of these latter questions is found in the affirmative, the law does not burden protected conduct and the inquiry ends.
If a court finds that a regulation burdens protected conduct, then it must proceed to the second prong of analysis and determine the appropriate level of constitutional scrutiny. See Chovan, 735 F.3d at 1136. This, in turn, requires the court to ask two more questions. First, we ask how “close” the challenged law comes to the core right of law-abiding citizens to defend hearth and home. See id. at 1138. And second, we analyze whether the law imposes substantial burdens on the core right. See id. If a challenged law does not strike at the core Second Amendment right or substantially burden that right, then intermediate scrutiny applies. See Silvester, 843 F.3d at 821; Jackson, 746 F.3d at 961; Chovan, 735 F.3d at 1138. Only where both questions are answered in the affirmative will strict scrutiny apply. See Silvester, 843 F.3d at 821.
B. Prong One: California Penal Code section 32310 burdens protected conduct.
With our course now charted, we apply the first prong of the Ninth Circuit‘s test to determine whether
1. Firearm magazines are protected arms under the Second Amendment.
Firearm magazines are “arms” under the Second Amendment. Magazines enjoy Second Amendment protection for a simple reason: Without a magazine, many weapons would be useless, including “quintessential” self-defense weapons like the handgun. See Heller, 554 U.S. at 629. We have opined that where firearms “are commonly possessed by law-abiding citizens for lawful purposes,” then “there must be some corollary, albeit not unfettered, right to possess the magazines necessary to render those firearms operable.” Fyock v. City of Sunnyvale, 779 F.3d 991, 998 (9th Cir. 2015). In Jackson, we held that ammunition is a protected arm because “without bullets, the right to bear arms would be meaningless.” 746 F.3d at 967.
We are not alone in this assessment. Our colleagues in the Third Circuit explicitly held that magazines are protected arms. See Ass‘n of New Jersey Rifle and Pistol Clubs v. Attorney Gen. New Jersey, 910 F.3d 106, 116 (3d Cir. 2018) (“ANJRPC“). This was so because “magazines feed ammunition into certain guns, and ammunition is necessary for such a gun to function as intended.” Id. Put simply, a regulation cannot permissibly ban a protected firearm‘s components critical to its operation. See Heller, 554 U.S. at 630 (holding that a regulation that “makes it impossible for citizens to use [their firearms] for the core lawful purpose of self defense” is unconstitutional).
2. LCMs are not unusual arms.
We next determine whether LCMs are arms that fall outside the scope of the Second Amendment. Heller provides that some arms are so dangerous and unusual that they are not afforded Second Amendment protection. See
554 U.S. at 627. But not so for LCMs. The record before us amply shows that LCMs are commonly owned and typically used for lawful purposes, i.e., not unusual.
The
To determine whether an arm is unusual, courts look to an arm‘s commonality or whether it is typically possessed by law-abiding citizens for purposes of self-defense. See, e.g., Silvester, 843 F.3d at 830 (Thomas, C.J., concurring) (finding that the “right to keep and bear arms is limited to ‘the sorts of weapons’ that are ‘in common use‘” (quoting Heller, 554 U.S. at 627-28)); see ANJRPC, 910 F.3d at 116 (holding that for the first prong inquiry, courts “consider whether the type of arm at issue is commonly owned” (citing United States v. Marzzarella, 614 F.3d 85, 90-91 (3d. Cir. 2010))).
Commonality is determined largely by statistics. But a pure statistical inquiry may hide as much as it reveals. In the
As discussed earlier, nearly half of all magazines in the United States today hold more than ten rounds of ammunition. And the record shows that such magazines are overwhelmingly owned and used for lawful purposes. This is the antithesis of unusual.
That LCMs are commonly used today for lawful purposes ends the inquiry into unusualness. But the record before us goes beyond what is necessary under Heller: Firearms 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 LCMs for self-defense is apparent in our shared national history.
Semi-automatic and multi-shot firearms were not novel or unforeseen inventions to the Founders, as the first firearm that could fire more than ten rounds without reloading was invented around 1580. Rapid fire guns, like the famous Puckle Gun, were patented as early as 1718 in London. Moreover, British soldiers were issued magazine-fed repeaters as early as 1658. As a predecessor to modern revolvers, the Pepperbox pistol design pre-dates the American Revolution by nearly one hundred years, with common variants carrying five to seven shots at the ready and with several European variants able to shoot 18 or 24 shots before reloading individual cylinders. Similarly, breech-loading, repeating rifles were conceptualized as early as 1791.
After the American Revolution, the record shows that new firearm designs proliferated throughout the states and few restrictions were enacted on firing capacities. The Girandoni air rifle, developed in 1779, had a 22-round capacity and was famously carried on the Lewis and Clark expedition.
The advent of repeating, cartridge-fed firearms occurred at the earliest in 1855 with the Volcanic Arms lever-action rifle that contained a 30-round tubular magazine, and at the latest in 1867, when Winchester created its Model 66, which was a full-size lever-action rifle capable of carrying 17 rounds. The carbine variant was able to hold 12 rounds. Repeating rifles could fire 18 rounds in half as many seconds, and over 170,000 were sold domestically. The Model 66 Winchester was succeeded by the Model 73 and Model 92, combined selling over 1.7 million total copies between 1873 and 1941.
The innovation of the self-contained cartridge along with stronger steel alloys also fostered development in handguns, making them smaller and increasing their capacities. Various revolver designs from France and Germany enabled up to 20 shots to be fired without reloading. A chain-fed variant, the French Guycot, allowed pistols to carry up to 32 shots and a rifle up to 100 shots. One American manufacturer experimented with a horizontally sliding “row of chambers” (an early stacked magazine) through a common frame, dubbed the Jarre “harmonica” pistol, holding ten rounds and patented in 1862. In 1896, Mauser developed what might be the first semi-automatic, recoil-operated pistol — the “Broomhandle” — with a detachable 20-round magazine. Luger‘s semiautomatic pistol hit the market in 1899 and came with seven or eight round magazines, although a 32-round drum magazine was widely available.
In 1935, Browning developed the 13-round Hi-Power pistol which quickly achieved mass-market success. Since then, new semi-automatic pistol designs have replaced the revolver as the common, quintessential, self-defense weapon. Many of these pistol models have increased magazine capacities as a result of double-stacked magazines. One of the most popular handguns in America today is the Gloсk 17, which comes standard with a magazine able to hold 17 bullets.
Rifle magazine development paralleled that of pistol magazines. In 1927, Auto Ordinance Company released its semi-automatic rifle with a 30-round magazine. A decade and a half later, the M-1 carbine was invented for the “citizen soldier” of WWII. The M-1 remained a common and popular rifle for civilians after the war. In 1963, almost 250,000 M-1s, capable of holding between 15 and 30 rounds, were sold at steeply discounted prices to law-abiding citizens by the federal government. The ultimate successor to the M-1 was the M-16, with a civilian version dubbed the Armalite Model 15, or AR-15. The AR-15 entered the civilian market in 1963 with a standard 20-round magazine and remains today the “most popular rifle in American history.” The AR-15 was central to a 1994 Supreme Court case in which the Court noted that semiautomatic rifles capable of firing “only one shot with each pull of the trigger” “traditionally have been widely accepted as lawful possessions.” Staples v. United States, 511 U.S. 600, 602 n.1, 603, 612 (1994). By the early-1970s, the AR-15 had competition from other American rifle models, each sold with manufacturer-standard 20-round or greater magazines. By 1980, comparable European models with similar capacities entered the American market.
The state claims that LCMs fall outside the scope of the
See Caetano, 136 S. Ct. at 1030 (Alito, J., concurring); see also Heller, 554 U.S. at 621-25.
3. LCM prohibitions are not longstanding regulations and do not enjoy a presumрtion of lawfulness.
Some firearm prohibitions are presumptively lawful because of their longstanding nature. Heller lists three types of permissible regulations that are presumptively consistent with the
This, of course, raises the question of what constitutes a sufficiently longstanding regulation. In our circuit, we have looked for evidence showing whether the challenged law traces its lineage to founding-era or Reconstruction-era regulations. In Chovan, for example, we expressed strong doubts that bans on firearm possession for violent offenders were sufficiently longstanding because the first known restriction was not enacted until 1938. See 735 F.3d at 1137 (citing C. Kevin Marshall, Why Can‘t Martha Stewart Have a Gun?, 32 Harv. J.L. & Pub. Pol‘y 695, 698, 708 (2008)). In Jackson, we reviewed regulations on handgun storage and sales of certain ammunition, keying our analysis to analogues in founding-era and Reconstruction-era fire safety laws. 746 F.3d at 962-63.
At the federal level, Congress chose to impose the strictest regulations on fully automatic machine guns with the National Firearms Act of 1934. See Pub. L. No. 73-474, 48 Stat. 1236. But despite its strong regulations, the law imposed no similar restrictions on magazine possession. Congress briefly prohibited LCMs with capacities greater than ten rounds when it enacted the Violent Crime Control and Law Enforcement Act of 1994. See Pub. L. No. 103-322, 108 Stat. 1796 (codified at
In sum, laws restricting ammunition capacity emerged in 1927 and all but one
4. There is no persuasive historical evidence in the record showing LCM possession falls outside the ambit of
In a similar vein, courts may assess historical understandings to determine whether a challenged law is a permissible regulation. To do so, we must look for “persuasive historical evidence establishing that the regulation at issue imposes prohibitions that fall outside the historical scope of the
The record before us provides no persuasive historical evidence showing that LCM possession is understood to fall outside the scope of the
The Seventh Circuit in Ezell v. City of Chicago reached a similar conclusion. That case involved a municipal ordinance that required firing-range training as a prerequisite to gun ownership while prohibiting all firing ranges in the City of Chicago. 651 F.3d 684, 704-05 (7th Cir. 2011). The Ezell court was presented with two laws from 1826 and 1831 that were relevant to its analysis. Id. at 706. These laws fell “far short of establishing that target practice is wholly outside the
* * *
As for prong one of our analysis, the record shows that LCMs are not subject to the exceptions announced in Heller. Magazines are protected arms, and larger capacity magazines are not unusual. LCMs have never been subject to longstanding prohibitions. And a historic analysis fails to persuade that LCMs otherwise fall outside constitutional protections. We hold that
Because
1. California Penal Code section 32310 strikes at the core right of law-abiding citizens to self-defend by banning LCM possession within the home.
Heller held that the “core”
2. California Penal Code section 32310 substantially burdens core Second Amendment rights.
a. Self-defense is a fundamental right rooted in our national history.
While the political branches enjoy latitude to craft legislation to stamp out gun violence, their powers are not limitless if they encroach on an enumerated right enshrined in our Constitutiоn. Moreover, the
The seeds of the modern right to defend oneself germinated from fertile ground long ago. The English Bill of Rights, considered the predecessor to our own, conferred an individual right to self-defense. See Heller, 554 U.S. at 593. “[T]he right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence.” Id. And “[b]y the time of the founding, the right to have arms had become fundamental for English subjects.” Id.
American colonists similarly understood their rights to include the “right of self-preservation” as permitting a citizen to “repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent an injury.” Id. at 594-95 (citing 1 William Blackstone, Commentaries *145-146, n. 42). This belief was galvanized by George III‘s attempt to disarm the colonists just as the Stuarts attempted to disarm Protestants. Id. at 594.
Before our federal Bill of Rights was ratified, at least four states — Pennsylvania, Vermont, North Carolina, and Massachusetts — included within their state constitutions, or “Declaration of Rights,” a guarantee to keep and bear arms. See Heller, 554 U.S. at 601, 595 n. 8. Shortly after the ratification of our Constitution, at least nine state constitutions “enshrined a right of citizens to ‘bear arms in defense of themselves and the state’ or ‘bear arms in defense of himself and the state.‘” Id. at 584-85, 585 n.8.
Perhaps the most poignant and persuasive reminder of the fundamental right to self-defense rests in the denial of that right to Black Americans during tragic chapters of our country‘s history. After the founding, Southern states often severely limited, or outright prohibited, firearm possession by slaves, freedmen, and others.12 The judicial branch, too, played a role in denying this fundamental right of self-defense to Blacks. In the infamous Dred Scott v. Sanford decision, Chief Justice Taney recited a parade of horribles if Black Americans were to be considered citizens: it would give Blacks the “right to enter every other State whenever they pleased,” to exercise “full liberty оf speech,” to “hold public meetings upon political affairs,” and “to keep and carry arms wherever they went.” 60 U.S. 393, 417 (1857).
It did not get much better even after a bloody war that tore the country apart. Post-Civil War state legislation and the Black Codes in the South deprived newly freed slaves of their
But laws promising protection and equality for African-Americans rang hollow because, in the post-Reconstruction era, the Ku Klux Klan and other marauding bands of terrorists slaughtered thousands of unarmed Black Americans. See generally Allen W. Trelease, White Terror: The Ku Klux Klan Conspiracy and Southern Reconstruction (1971); see also Robert J. Kaczorowski, Federal Enforcement of Civil Rights During the First Reconstruction, 23 Fordham Urb. L. J. 155, 156-57 (1995). Not surprisingly, Black Americans embraced their right to self-defense, understanding that protections offered by the state may be promising in theory but fatal in fact. Ida B. Wells — the crusading journalist who co-founded the NAACP — wrote that “a Winchester rifle should have a place of honor in every black home, and it should be used for that protection which the law refuses to give.” Ida B. Wells, Southern Horrors and Other Writings: The Anti-Lynching Campaign of Ida B. Wells, 1892-1900 70 (Jacqueline Jones Royster ed., 1997). Martin Luther King, Jr., despite his non-violent approach to protest, owned numerous firearms and hired armed men to guard his house during the Montgomery Bus Boycott in 1956. See Annelieke Dirks, Between Threat and Reality: The National Association for the Advancement of Colored People and the Emergence of Armed Self-Defense in Clarksdale and Natchez, Mississippi, 1960-1965, 1 J. for the Study of Radicalism 71, 73 (2007). One civil rights activist who visited Dr. King‘s home during that time described the house as an “arsenal.” Id.
Stories of other civil rights activists exercising their right to self-defense are legion. While the NAACP espoused nonviolence, many of its members carried firearms for self-protection, and for good reason. See id. at 71. Aaron Henry, then a branch president of the NAACP, would openly display his firearm after his house was firebombed in 1963. See id. When NAACP activist Hartman Turnbow tried to register to vote, nightriders lit his house on fire with Molotov cocktails. See id. at 72. Turnbow recounted that he grabbed his rifle, escaped the burning building, and exchanged gunfire with two white men waiting outside. See id. The men fled once Turnbow started shooting back. See id. Ida B. Wells documented that “[o]f the many inhuman outrages of [that] year, the only case where the proposed lynching did not occur, was where the men armed themselves ... and prevented it. The only times an Afro-American who was assaulted [and] got away has been when he had a gun and used it in self-defense.” Ida B. Wells, supra.
During the crucible of the civil rights movement, Black American veterans from World War II and the Korean War founded the Deacons for Defense and Justice to protect Black people from racial violence at the hands of the Ku Klux Klan. See generally Lance Hill, The Deacons for Defense: Armed Resistance and the Civil Rights Movement (Univ. of N.C. Press ed., 2004). In 1966, the small Louisiana town of Bogalusa integrated the local junior high school to the ire of the local Klan. See id. at 1. Armed with guns, this roving band of racist terrorists arrived at the junior high school. See id. Their intentions were obvious: In that small town, two African-Americans, one of whom was a deputy sheriff, had been recently killed by white people. See id. But this time around, the Klan encountered something unexpected at the entrance of the school: The Deacons for Defense and Justice — armed with revolvers and rifles, and rooted in righteousness and resolution. Outgunned by the Deacons, the Klan fled. See id. As one member of the Deacons noted afterwards, “From that
These terrible events did not occur long ago in faraway lands. They occurred on American soil, some less than sixty years ago. And tragically, they are not unique. Indeed, Black Americans’ experience throughout the civil rights movement was just the latest iteration in an ongoing struggle to defend hearth and home from those who wished them ill. See Dirks, supra, at 72-73 (“This was part of a long-standing tradition of revolts, armed resistance, and self-defense that developed during slavery and continued after emancipation when Reconstruction failed to deliver political and social equality for Black Americans.“).
Our country‘s history has shown that communities of color have a particularly compelling interest in exercising their
People of color are not alone in relying on the
So, too, for members of the lesbian, gay, bisexual, and transgender (LGBT) communities. They are “disproportionately the victims of hate crimes and other types of criminal violence” because they are “perceived ... as safe targets for violence and hateful acts.” Brief for Pink Pistols, et al. as Amici Curiae Supporting Plaintiffs-Appellees at 2. As amici Pink Pistols explain in their brief, armed self-defense can dispel those perceptions and deter such attacks against LGBT members. See id.
We mention these examples to drive home the point that the
That means that an average of 657 Americans — and perhaps up to 6,849 Americans — use guns to defend themselves every single day of the year. We take notice of this fact in recognizing the fundamental right of self-defense.
b. California Penal Code section 32310 substantially burdens Second Amendment rights.
The state argues that its law does not impose a substantial burden on the
defense. See Heller, 554 U.S. at 574.14 The District of Columbia law banning possession of handguns did not prevent citizens from defending themselves because, as the District argued, they could still use a shotgun or a variety of other arms to defend themselves. But the Supreme Court rejected the argument that “it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed.” Heller, 554 U.S. at 629. Because the law banned an “entire class of ‘arms’ that is overwhelmingly chosen by American society” for self-defense — a handgun, in that case — the restriction was “severe” and ran afoul of the
Put another way, a “substantial burden” on the
Notably, the Supreme Court has taken a similar approach in a kaleidoscope of cases involving other fundamental enumerated rights. The Court does not look away from a governmental restriction on the people‘s liberty just because the state did not impose a full-tilt limitation on a fundamental and enumerated right. Rather, in assessing a governmental imposition on a fundamental right, the Court shuns policy-balancing and focuses on the erosion of the people‘s liberties. See, e.g., Reynolds v. Sims, 377 U.S. 533, 561-62 (1964) (“Undoubtedly, the right [to vote] ... is a fundamental matter in a free and democratic society... [A]ny alleged infringement of the right ... must be carefully and meticulously scrutinized.“); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943) (“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One‘s right to life, liberty, and property, to free speech, a free press ... and оther fundamental rights may not be submitted to vote; they depend on the outcome of no elections.“); Jacob v. City of N.Y., 315 U.S. 752, 752-53 (1942) (“A right [to jury trial] so fundamental and sacred to the citizen, whether guaranteed by the Constitution or provided by statute, should be jealously guarded by the courts.“). We find
Our decision today is in keeping with Ninth Circuit precedent. While we have not articulated a precise standard for what constitutes a substantial burden on core
So, in Jackson, we held that a bar on the sale of hollow-point ammunition within city limits was not a severe burden because San Francisco residents could still own that ammunition within the home. 746 F.3d at 968. We thus applied intermediate scrutiny to the regulation. See id. Stated differently, we implied that strict scrutiny likely applies if a law completely bans the possession of a certain class of ammunition (there, hollow-point bullets).
Two years later in Silvester, we applied intermediate scrutiny to a ten-day waiting period because it did not completely ban possession. 843 F.3d at 827. We held that such regulations were more akin to time, place, or manner restrictions in the
Then in 2018 in Pena, our court reaffirmed that possession bans on arms are strong medicine likely requiring strict scrutiny. We held that a grandfather provision was “important[]” to our decision to apply intermediate scrutiny. 898 F.3d at 977.17 Put differently, the lack of a grandfather provision likely requires strict scrutiny because governmental bans on possession cut deeply into the core constitutional right to protect hearth and home.
Perhaps this point was made most clear in Chovan. 735 F.3d at 1138. While we applied intermediate scrutiny on a ban on arms for domestic violence misdemeanants, we made clear that the standard was different for law-abiding citizens. See id. If a ban on arms borders on a “total prohibition” of ownership for law-abiding citizens, the burden is substantial. See id.18
Turning to whether
Moreover, California‘s law has no meaningful exceptions for law-abiding citizens. There is no grandfather clause that Pena found “important” to avoid strict scrutiny. 898 F.3d at 977. None of the limited exceptions in the statute speak to the average law-abiding citizen, and none mitigate the severe burdens imposed by
More fundamentally, no court would ever countenance similar restrictions for other fundamental rights. The nub of the state‘s position is that even though it bars Californians from owning one of every two magazines in the United States, that restriction is not substantially burdensome because Californians can still possess other magazines. But no court would hold that the
The state relies on the fallback position that the
The exclusionary rule in criminal procedure is a clear example. Under that doctrine, “the criminal is to go free because the constable has blundered.” Mapp v. Ohio, 367 U.S. 643, 659 (1961) (internal quotations and citation omitted). Surely, too, the government‘s efforts to secure damning criminal confessions has been hobbled since Miranda v. Arizona. “The most basic function of any government is to provide for the security of the individual and of his property.... The rule announced today will measurably weaken the ability of the criminal law to perform these tasks.” Miranda v. Arizona, 384 U.S. 436, 539-41 (1966) (White, J., dissenting). This is not hypothetical. Criminals sometimes go free because our society prioritizes individual constitutional rights over concerns that freed offenders may commit crimes again. See, e.g., Jim Haner, Kimberly A.C. Wilson, & John B. O‘Donnell, Cases Crumble, Killers Go Free, Balt. Sun, Sept. 29, 2002, at 1A (discussing а group of 83 defendants who had charges for homicide dropped due to technical error and were later rearrested for new crimes, “including 24 indicted in fresh murders or attempted murders“).
There is also no stopping point to the state‘s argument. Under its logic, California could limit magazines to as few as three bullets and not substantially burden
More broadly, the government‘s argument misses the mark because the
In any event, it does not take a wild imagination to conclude that citizens may need LCMs to defend hearth and home. While Hollywood and the Bay Area symbolize California to the world, the Golden State is in fact a much more diverse and vibrant place, with people living in sparsely populated rural counties, seemingly deserted desert towns, and majestic mountain villages. In such places, the closest law enforcement may be far, far away — and it may take substantial time for the county sheriff to respond. And it is no guarantee that the things that go bump in the night come alone; indeed, burglars often ply their trade in groups recognizing strength in numbers. See Carl E. Pope, Law Enf‘t Assistance Admin., U.S. Dеp‘t of Justice, 148223, Crime-Specific Analysis: An Empirical Examination of Burglary Offenses and Offender Characteristics 48 (1977) (finding that 70% of burglars operate in groups); see also Andy Hochstetler, Opportunities and Decisions: Interactional Dynamics in Robbery and Burglary Groups, 39 Criminology 737, 746-56 (2001) (suggesting that burgling in groups reduces anxiety of punishment). Law-abiding citizens in these places may find security in a gun that comes standard with an LCM.
Further, some people, especially in communities of color, do not trust law enforcement and are less likely — over 40% less likely, according to one study — to call 911 even during emergencies. See 163 Cong. Rec. S1257-58 (daily ed. Feb. 16, 2017) (statement of Sen. Kamala Harris) (discussing a study showing that certain ethnic groups are over 40% less likely to call 911 in an emergency); see also Nik Theodore & Robert Habans, Policing Immigrant Communities: Latino Perceptions of Police Involvement in Immigration Enforcement, 42 J. of Ethnic and Migration Stud. 970 (2016). These citizens may rely more on self-defense than the “average” person in a home invasion or some other emergency.
Law-abiding citizens trapped in high-crime areas where the law enforcement is overtaxed may defend themselves in their homes with a handgun outfitted with LCMs. And in incidents of mass chaos and unrest, law enforcement simply may be unable to protect the people, leaving them solely responsible for their own safety in a seemingly Hobbesian world. Finally, many citizens will not take any chances or compromise their ability to defend themselves and their families, and they may place their trust in guns equipped with LCMs as a last resort.22
3. Decisions in other circuits are distinguishable.
The state attempts to seek refuge in the holdings of extra-circuit authority. But those decisions present myriad distinctions and are inapposite.
To begin, many of the other states’ laws are not as sweeping as
Moreover, almost all the other state laws banned both LCMs and assault weapons. As a result, the decisions too often conflated the analysis between the two. For example, the D.C. Circuit in Heller v. District of Columbia (”Heller II“) upheld the ban on assault weapons and LCMs because the record reflected that assault weapons are not typically used for self-defense, quoting a study that “revolvers and semi-automatic pistols are together used almost 80% of the time in incidents of self-defense with a gun.” 670 F.3d 1244, 1262 (D.C. Cir. 2011) (emphasis added). But “semi-automatic pistols” used for self-defense — such as a Glock — routinely use LCMs, and, in fact, an LCM is the standard magazine that comes equipped with the gun. The analysis in many of these cases is thus rendered unsound for our purposes today, as we only opine on the validity of California‘s LCM ban.23
4. Fyock v. City of Sunnyvale does not obligate us to apply intermediate scrutiny.
The state relies on this court‘s decision in Fyock v. City of Sunnyvale to maintain that intermediate scrutiny applies here. But it hangs too heavy a hat on too small a hook. Fyock does not hold that as a matter of law intermediate scrutiny applies to LCM regulations.
In Fyock, we did not reach the merits of the case, but instead were asked to review a preliminary injunction denial relating to an LCM ban in the City of Sunnyvale based on a limited record. Critically, we acknowledged that we were merely “consider[ing] whether the district court abused its discretion by applying intermediate scrutiny.” Fyock, 779 F.3d at 998 (emphasis added). We held only that the district court did not abuse its discretion by choosing intermediate scrutiny
It is perhaps understandable why our court in Fyock ruled as it did in light of the deferential standard of review and the unique facts presented in the case. Sunnyvale is a small and affluent community. Its violent crime rate is less than half of the statewide violent crime rate. Compare City of Sunnyvale, Sunnyvale Uniform Crime Report 2018 (1.7 incidents per 1,000 people), with Cal. Dep‘t of Justice, Crime in California 2018, Criminal Justice Statistics Center Publications at 1, 10 (4.4 incidents per 1,000 people).24
Sunnyvale also boasts one of the largest combined public safety departments in the United States. See Erika Towne, Sunnyvale‘s Department of Public Safety is One of the Largest Combined Departments in the U.S., Santa Clara Weekly (Apr. 10, 2019), at 9. We are not in Sunnyvale anymore.25
* * *
Apart from this circuit‘s two-prong analysis for tiers of scrutiny, our approach is in keeping with how we generally address fundamental rights in our Constitution. As the Supreme Court held, the
D. California Penal Code section 32310 does not survive strict scrutiny review.
Strict scrutiny is the “most rigorous and exacting standard of constitutional review,” and requires that a state law be “narrowly tailored to achieve a compelling interest.” Miller v. Johnson, 515 U.S. 900, 920 (1995); see also Kolbe, 849 F.3d at 133. “[I]f there are other, reasonable ways to achieve [a compelling state purpose] with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference. If it acts at all, it must choose ‘less drastic means.‘” Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 909-10 (1986) (citing Dunn v. Blumstein, 405 U.S. 330, 343 (1972)) (alterations original).
1. The state interests advanced here are compelling.
In the court below, the state advanced four interests underlying
2. California Penal Code section 32310 is not narrowly tailored to achieve the compelling state interests it purports to serve.
As discussed above,
E. Even if intermediate scrutiny were to apply, California Penal Code section 32310 would still fail.
As made plain by our earlier discussion, intermediate scrutiny is the wrong standard to apply. But even if we were to apply it today,
1. Intermediate scrutiny as traditionally understood has bite.
Courts apply intermediate scrutiny in a variety of contexts. Broadly speaking, to survive intermediate scrutiny a statute “must be substantially related to an important governmental objective.” Clark v. Jeter, 486 U.S. 456, 461 (1988).
Recently, the Supreme Court emphasized the potent nature of intermediate scrutiny. In Packingham v. North Carolina, 137 S. Ct. 1730, 1736 (2017) (quoting McCullen v. Coakley, 573 U.S. 464, 486 (2014)), the Court held that to survive intermediate scrutiny “a law must be ‘narrowly tailored to serve a significant governmental interest.‘”
While the precise contours of intermediate scrutiny may vary, this much is certain: It has bite. It is a demanding test. While its application is neither fatal nor feeble, it still requires a reviewing court to scrutinize a challenged law with a healthy dose of skepticism. Indeed, the law must address “harms” that “are real” in a “material” way. Edenfield v. Fane, 507 U.S. 761, 771 (1993). At its core, intermediate scrutiny is a searching inquiry.
2. Appellate courts have not settled on a particular intermediate scrutiny formulation for Second Amendment challenges.
This circuit has used seemingly varying formulations of intermediate scrutiny in the
Chovan provides that intermediate scrutiny requires “(1) the government‘s stated objective be significant, substantial, or important; and (2) a reasonable fit between the challenged regulation and the asserted objective.” 735 F.3d at 1139. But in Silvester, we stated that gun regulations need only promote a “substantial government interest that would be achieved less effectively absent the regulation.” 843 F.3d at 829.
Other decisions within our court and elsewhere have used language that suggests varying intensities of “bite.” Some applications of intermediate scrutiny are severe. See, e.g., Jackson, 746 F.3d at 966 (whether the challenged restriction is “substantially related to the important government interest of reducing firearm-related deaths and injuries“); Heller II, 670 F.3d at 1258 (requiring “a tight ‘fit’ between the [regulation] and an important or substantial government interest, a fit ‘that employs not necessarily the least restrictive means but ... a means narrowly tailored to achieve the desired objective‘“). Others appear less stringent. See, e.g., Worman, 922 F.3d at 38-39 (“there must be a ‘reasonable fit’ between the restrictions imposed by the law and the government‘s valid objectives, ‘such that the law does not burden more conduct than is reasonably necessary‘“); ANJRPC, 910 F.3d at 119 (same). A few fall somewhere in between. See, e.g., Kolbe, 849 F.3d at 139 (restriction passes intermediate scrutiny if “reasonably adapted to a substantial government interest“) (citation omitted).
3. Some courts have applied a diluted form of intermediate scrutiny that approximates rational basis, which Heller forbids.
Whatever its precise contours might be, intermediate scrutiny cannot approximate the deference of rational basis review. Heller, 554 U.S. at 628 n.27. Heller forecloses any such notion. See id. Yet the state asserts that thе deferential standard presented by the case of Turner Broadcasting System, Inc. v. F.C.C. applies here. But reliance on this line of cases is misplaced. While some courts have analyzed Second Amendment regulations under the highly deferential Turner standard, it has been inconsistently applied and ultimately remains inapplicable.
Turner deference stems from two Supreme Court cases that addressed certain rules imposed on cable television companies. See Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622 (1994) (hereinafter ”Turner I”); Turner Broadcasting System, Inc. v. F.C.C., 520 U.S. 180 (1997) (hereinafter ”Turner II”). These cases establish a general rule that where “policy disagreements exist in the form of conflicting legislative ‘evidence,‘” courts “‘owe [the legislature‘s] findings deference in part because the institution is far better equipped than the judiciary to amass and evaluate the vast amounts of data bearing upon legislative questions.‘” Pena, 898 F.3d at 979 (quoting Turner II, 520 U.S. at 195). A few courts have imported this deference to analyze Second Amendment claims. See, e.g., Kolbe, 849 F.3d at 140 (applying Turner deference to LCM restrictions); NYSRPA, 804 F.3d at 261 (same); Drake v. Filko, 724 F.3d 426, 436–37 (3d Cir. 2013) (same, for public carriage restrictions). But courts in our own circuit have been inconsistent in its application. In Pena, we applied Turner deference. See id. at 979–80. But in Silvester, Fyock, Jackson, and Chovan we did not. See generally 843 F.3d at 817–29; 779 F.3d at 994–1001; 746 F.3d at 957–70; 735 F.3d at 1129–42.
The latter opinions get it right. Turner is an inappropriate standard for a simple reason: That line of cases addressed a very different set of laws and circumstances. There, cable television operators challenged the constitutionality of must-carry provisions of the Cable Television Consumer Protection and Competition Act of 1992. See Turner I, 512 U.S. at 626–27. As the Court explained
Not so here. While the issue of gun violence is important and emotionally charged, it does not involve highly technical or rapidly changing issues requiring such deference. The state cannot infringe on the people‘s Second Amendment right, and then ask the courts to defer to its alleged “expertise” once its laws are challenged. Put another way, intermediate scrutiny cannot mean Chevron-like deference. Indeed, this very argument advanced by the state was roundly rejected by the majority in Heller. Despite Justice Breyer‘s dissenting opinion explicitly advancing Turner deference, see 554 U.S. at 690–91, 704–05, the majority in Heller did not once mention Turner and its progeny. To apply Turner today would amount to аn abdication of our judicial independence and we refuse to do so. And in any event, the Turner I Court emphasized that deference does “not foreclose our independent judgment of the facts bearing on an issue of constitutional law.” Id. at 666 (citation omitted).
4. California Penal Code section 32310 would still fail to pass constitutional muster under an intermediate scrutiny analysis.
Even if we were to apply intermediate scrutiny,
The state speculates that a complete prohibition is necessary to avoid legally owned LCMs from falling into the wrong hands. But the flaws of that argument are obvious. The state could ban virtually anything if the test is merely whether something causes social ills when someone other than its lawful owner misuses it. Adopting such a radical position would give the government carte blanche to restrict the people‘s liberties under the guise of protecting them.
While the harms that California attempts to address are no doubt real,
But more than that, the district court pointed out that only three of these incidents definitively involved LCMs. And for each, the assailant brought high capacity magazines that were illegally smuggled into California. In other words,
Put simply, California fails to show a reasonable fit between
CONCLUSION
Let us be clear: We are keenly aware of the perils of gun violence. The heartbreak and devastation caused by criminals wielding
We also want to make clear that our decision today does not address issues not before us. We do not opine on bans on so-called “assault weapons,” nor do we speculate about the legitimacy of bans on magazines holding far larger quantities of ammunition. Instead, we only address California‘s ban on LCMs as it appears before us. We understand the purpose in passing this law. But even the laudable goal of reducing gun violence must comply with the Constitution. California‘s near-categorical ban of LCMs infringes on the fundamental right to self-defense. It criminalizes the possession of half of all magazines in America today. It makes unlawful magazines that are commonly used in handguns by law-abiding citizens for self-defense. And it substantially burdens the core right of self-defense guaranteed to the people under the Second Amendment. It cannot stand.
We AFFIRM the district court‘s grant of summary judgment for plaintiffs-appellees.
LYNN, District Judge, dissenting:
The majority opinion conflicts with this Circuit‘s precedent in Fyock v. Sunnyvale, 779 F.3d 991 (9th Cir. 2015), and with decisions in every other Circuit to address the Second Amendment issue presented here. I am willing to at least assume that the law at issue implicates conduct protected by the Second Amendment, but I part ways with the majority regarding the appropriate level of scrutiny and its application in this case. I would reverse the district court‘s grant of summary judgment. I respectfully dissent.
ANALYSIS
California was not the first city or state to ban the possession of large capacity magazines (“LCMs“), and this panel is not the first (even within this Circuit) to address the constitutionality of such bans. A panel of this Court previously affirmed a district court‘s refusal to preliminarily enjoin the City of Sunnyvale‘s ban on LCMs, and six of our sister Circuits have held that various LCM restrictions are constitutional. See Fyock, 779 F.3d 991; see also Heller v. District of Columbia (Heller II), 670 F.3d 1244 (D.C. Cir. 2011); Worman v. Healey, 922 F.3d 26 (1st Cir. 2019); New York State Rifle & Pistol Ass‘n, Inc. v. Cuomo, 804 F.3d 242 (2d Cir. 2015) (“NYSRPA“); Ass‘n of N.J. Rifle & Pistol Clubs, Inc. v. Att‘y Gen. N.J., 910 F.3d 106 (3d Cir. 2018); Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) (en banc); Friedman v. City of Highland Park, Ill., 784 F.3d 406 (7th Cir. 2015). Thus, this panel is not writing on a blank slate. I would reach the same result as the Fyock panel and our sister Circuits and hold that California‘s ban on LCMs does not violate the Second Amendment.
To determine whether a challenged law violates the Second Amendment, this Court “employs a two-prong test: (1) the court ‘asks whether the challenged law burdens conduct protected by the Second Amendment‘; and (2) if so, what level of scrutiny should be applied.” Fyock, 779 F.3d at 996 (quoting United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013)).
I. Whether § 32310 Affects Second Amendment-Protected Cоnduct
California argues that
II. The Appropriate Level of Scrutiny
The next question is which level of scrutiny applies. In making that determination, “the court must consider (1) how closely the law comes to the core of the Second Amendment right; and (2) how severely, if at all, the law burdens that right.” Fyock, 779 F.3d at 998 (citing Chovan, 735 F.3d at 1138). “Intermediate scrutiny is appropriate if the regulation at issue does not implicate the core Second Amendment right or does not place a substantial burden on that right.” Id. at 998–99 (citing Jackson v. City & Cty. of S.F., 746 F.3d 953, 964 (9th Cir. 2014)).
As to the first prong, I acknowledge that
The majority writes that the existence of alternatives is irrelevant under Heller. See Maj. Op. at 40–41. Unlike the law at issue in Heller, however - and contrary to the majority‘s characterization of California‘s law -
In short, although the availability of a different “class” of firearms (like a rifle instead of a handgun) might be “no answer” to a Second Amendment challenge, Heller, 554 U.S. at 629, alternatives in the same “class” are relevant to the burden analysis. See, e.g., Jackson, 746 F.3d at 961 (“[F]irearm regulations which leave open alternative channels for self-defense are less likely to place a severe burden on the Second Amendment right than those which do not.“). The difference between using a handgun versus a rifle for self-defense, for example, is much more significant than the difference between using a magazine that holds eleven rounds versus a magazine that holds ten rounds.4 For this reason, the prohibition on LCMs is more analogous to a restriction on how someone exercises their Second Amendment rights, by restricting the number of bullets a person may shoot from one firearm without reloading. “[L]aws
Because I would find that
The majority splits with our sister Circuits, claiming that those decisions are distinguishable because the laws at issue in those cases were “not as sweeping” as
The majority also departs from our Circuit‘s decision in Fyock, reasoning that Fyock was decided on a different record, using a different standard of review.8 Maj. Op. at 53-55. The relevant undisputed facts here, however, are identical to the facts at issue in Fyock. Specifically, the laws at issue “restrict[] possession of only a subset of magazines that are over a certain capacity.” Fyock, 779 F.3d at 999.
The abuse of discretion standard gave the district court leeway in finding those facts, but if the district court had applied the wrong legal standard - such as an incorrect level of scrutiny - “[a]n error of law necessarily constitutes an abuse of discretion.” Akopyan v. Barnhart, 296 F.3d 852, 856 (9th Cir. 2002); see also Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990). In other words, if intermediate scrutiny were the wrong legal standard for cases presenting these facts, applying that level of scrutiny necessarily would have been an abuse of discretion. Fyock held, however, that intermediate scrutiny was the correct standard. I would hold that Fyock requires this panel to apply intermediate scrutiny in this case as well.
III. Applying Intermediate Scrutiny
Having determined that
“Intermediate scrutiny requires (1) a significant, substantial, or important government objective, and (2) a ‘reasonable fit’ between the challenged law and the asserted objective.” Pena, 898 F.3d at 979 (quoting Jackson, 746 F.3d at 965). While the challenged law must “promote[] a ‘substantial government interest that would be achieved less effectively absent the regulation,‘” the test does not require that the government choose “the ‘least restrictive means’ of achieving [its] interest.” Id. (quoting Fyock, 779 F.3d at 1000).
I agree with the majority that California has satisfied the first part of the test by showing a significant, substantial, or important government objective. Maj. Op. at 57, 59, 63. I disagree, however, that
“When considering California‘s justifications for the statute, we do not impose an ‘unnecessarily rigid burden of proof,’ and
Like Sunnyvale in Fyock, California “presented evidence that the use of large-capacity magazines results in more gunshots fired, results in more gunshot wounds per victim, and increases the lethality of gunshot injuries.” 779 F.3d at 1000; Excerpts of Record (“ER“) 357 (“[T]he use of LCMs in massacres resulted in a 59 percent increase in fatalities per incident.“); ER 405 (“[T]he available evidence suggests that gun attacks with semiautomatics - including both assault weapons and guns equipped with LCMs - tend to result in more shots fired, more persons wounded, and more wounds inflicted per victim than do attacks with other firearms.“); ER 756 (“[I]t is common for offenders to fire more than ten rounds when using a gun with a large-capacity magazine in mass shootings.“); ER 756–57 (“[C]asualties were higher in the mass shootings that involved large-capacity magazine guns than other mass shootings. In particular, we found an average number of fatalities or injuries of 31 per mass shooting with a large-capacity magazine versus 9 for those without.“); ER 972.
It “also presented evidence that large-capacity magazines are disproportionately used in mass shootings as well as crimes against law enforcement, and it presented studies showing that a reduction in the number of large-capacity magazines in circulation may decrease the use of such magazines in gun crimes.” Fyock, 779 F.3d at 1000; ER 358 (“[S]ince 1968, LCMs have been used in 74 percent of all gun massacres with 10 or more deaths, as well as in 100 percent of all gun massacres with 20 or more deaths - establishing a relationship between LCMs and the deadliest gun massacres.“); ER 405 (“It also appears that guns with LCMs have been used disproportionately in murders of police.“); ER 418 (“Consistent with prior research, we also found that LCM firearms are more heavily represented among guns used in murders of police and mass murders.“); ER 756 (“We found that large-capacity magazines were used in the majority of mass shootings since 1982 ....“). “[I]t strains credulity to argue that the fit between the Act and the asserted governmental interest is unreasonable.” Worman, 922 F.3d at 40. To the extent that the district court weighed this evidence against contrary evidence, it was inappropriate tо do so in the context of a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (“[A]t the summary judgment stage the judge‘s function is not himself to weigh the evidence and determine the truth of the matter . . . .“).
This evidence is not based on pure speculation. California offered evidence based on different data sources, from multiple experts. California also pointed to evidence that the federal ban on assault weapons and LCMs was beginning to have an effect - and likely would have had a larger effect in the absence of a grandfather clause - when it expired in 2004. See, e.g.,
The majority faults
Importantly, while
That
support[ed]’ its conclusions,” id. (quoting Jackson, 746 F.3d at 969), I would hold that
This conclusion is consistent with Fyock and all our sister Circuits to resolve this question. In every case, the court has held that the LCM restrictions at issue satisfy intermediate scrutiny. See Heller II, 670 F.3d at 1264 (“We conclude the District
IV. Conclusion
Because I would hold that intermediate scrutiny applies and