Ninth Circuit: Ban on Magazines with >10 Rounds Violates Second Amendment

|The Volokh Conspiracy |

The case is Duncan v. Becerra, a 2-1 decision written by Judge Kenneth Lee and joined by Judge Consuelo Callahan; the dissent is by Chief District Judge Barbara M. G. Lynn (N.D. Tex.), sitting by designation. A quick excerpt from the summary of the majority:

California's near-categorical ban of LCMs [so-called "large-capacity magazines," which is to say magazines that can hold more than 10 rounds] 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 ban makes it criminal for Californians to own magazines that come standard in Glocks, Berettas, and other handguns that are staples of self-defense. Its scope is so sweeping that half of all magazines in America are now unlawful to own in California. Even law-abiding citizens, regardless of their training and track record, must alter or turn over to the state any LCMs that they may have legally owned for years—or face up to a year in jail.

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 California Penal Code section 32310's ban on LCMs runs afoul of the Second Amendment.

From the dissent:

I cannot agree that § 32310 is a substantial burden on [the Second Amendment] right. Section 32310 "restricts possession of only a subset of magazines that are over a certain capacity. It does not restrict the possession of magazines in general such that it would render any lawfully possessed firearms inoperable, nor does it restrict the number of magazines that an individual may possess." Just as "[a] ban on the sale of certain types of ammunition does not prevent the use of handguns or other weapons in self-defense," and "leaves open alternative channels for self-defense in the home," § 32310 does not place a substantial burden on core Second Amendment rights because it does not prevent the use of handguns or other weapons in self-defense.

I expect the state to seek en banc review, which the Ninth Circuit may well agree to conduct. Granting en banc would require, basically, a vote of the majority of the Circuit to grant en banc review, and then the case would be reheard by an 11-judge panel consisting of Chief Judge Sidney Thomas joined by 10 judges randomly drawn out of the remaining 28 Ninth Circuit judges. The Ninth Circuit right now has 16 judges appointed by Democrats (including the Chief Judge) and 13 appointed by Republicans, though of course party of appointment is an imperfect predictor of views on this question.

I also expect there may be a much more detailed post in the next few days by David Kopel.

NEXT: Opinions of the Court, Opinions Related to Orders, and Orders of the Court

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  1. I noticed even Maura (Arson) Healey submitted a brief on this — I’m not so sure the state will move for an en banc review because if the state then wins, you kinda know that is going to get appealed to SCOTUS and even Roberts probably would uphold this decision.

    It’s a political decision, not a legal one, and it comes down to what people think that Roberts would do.

    BTW, why was there a Texas judge on this 9th Circuit decision?

    1. Healey is MA AG. The “arson” comes from her comment that “Yes, America is burning, but that’s how forests grow,”

      https://newbostonpost.com/2020/06/02/massachusetts-attorney-general-compares-riots-to-fires-that-help-forests-grow/

      1. Flagged by accident trying to close a popup on my phone.

    2. Surprising the 9th would make this ruling. Even more surprising a Judge from Texas would dissent.

      1. Luck of the draw.

      2. As Prof. Volokh notes, the Ninth Circuit looks a lot different than it did 3.5 years ago. And I don’t know that it’s terribly surprising that a Democrat from Dallas would turn out to be a hoplophobe.

        1. The odds of getting a favorable draw in the 9th circuit sure have improved over the last few years. OTOH, if it goes to en banc gun owners are still screwed.

          1. Not all gun owners are gun nuts.

            1. But all gun controllers are gun nuts.

            2. Would you consider this law one of the “reasonable regulations” that is consistent with your purported support for gun rights?

          2. Not necessarily: the screwy Ninth Circuit en banc rules mean that it’s a random subset of judges will hear the case rather than all of them. So it could well happen that the crazy ones end up in the minority.

            1. But is it a random subset, or a ‘random’ subset? I’m guessing the latter.

              1. Ninth Circuit Rule 35-3 calls for the limited en banc panel to consist of chief judge and 10 randomly selected circuit judges. I don’t see any reason to doubt that the selection is actually random. (There was an issue a few years ago where important cases were steered towards panels that were unusually likely to contain Judge Reinhardt, but they abandoned that after it came to light, and it didn’t directly relate to the random composition of panels pre-assignment.)

                https://eppc.org/publications/a-curious-panel-selection-procedure/

                1. Unless they’re choosing the en banc panels by publicly using a bingo machine, or something like that, I have every reason to doubt the selection is actually random.

                  First, precedent of non-random “random” selection, both in the 9th circuit and D.C. that I know of.

                  And second, because a lot of those judges are political, and the 9th circuit had long been overwhelmingly left-wing, so if they could, and it had any political utility, they would.

                  Indeed, your own link states that there is statistical evidence in several circuits that “random” assignment isn’t really random at all.

      3. the texas judge is a clinton appointee,

    3. Dr. Ed 2 asked:

      BTW, why was there a Texas judge on this 9th Circuit decision?

      From the uscourts.gov website:

      Visiting judges who may sit by designation and assignment in any other federal court having a need for their service. They provide temporary assistance not only when a court’s own judges must disqualify themselves, but also to help meet the caseload needs arising from vacancies, lack of sufficient judgeships, specific emergencies, and other workload imbalances.

      Judges sitting with another court within their circuit are on an intracircuit assignment, which is approved by the circuit chief judge. Judges sitting with a court outside of their home circuit are on an intercircuit assignment. For Article III judges, intercircuit assignments must be approved by the Chief Justice of the U.S. Supreme Court. Temporary assignments for bankruptcy and magistrate judges are coordinated by chief judges of the courts and circuits.

      Visiting judges sitting by designation and senior status judges can’t participate in voting on motions for rehearing en banc, nor in consideration of those appeals for which rehearing en banc is granted. That can be significant, because typically it’s the author of a panel dissent who serves as the chief proponent within the court for rehearing en banc, and the author of the majority who defends the panel opinion against such motions.

      But in the Ninth Circuit, there surely are other active-service judges who will take up the cudgels raised by District Judge Lynn.

      1. See also 28 U.S.C. §§ 291-297 for the formal statutory authorization in the Judicial Code for such assignments to sit by designation.

        1. And note that sometimes, retired Supreme Court Justices may volunteer to sit by designation, as discussed here.

    4. See also 28 U.S.C. §§ 291-297 for the formal statutory authorization in the Judicial Code for such assignments to sit by designation.

      1. You said that at 10:15.

        1. I apologize for the duplication, which came from my efforts to work around the website’s automatic (and perpetual) moderation of comments with more than one hyperlink, as well as replies to any such comments.

  2. Would that it were the First Circuit!

  3. There was no limit to the amount of power and shot carried with a musket. There is no rational basis which correlates reduced clip size with reduction in crime. There is no claim of increased public safety by reducing clip size. Just stupid. The people who attack the Second Amendment have boxcars waiting to take you to a special place. Sic temper tyrannis.

    1. ” The people who attack the Second Amendment have boxcars waiting to take you to a special place. ”

      Delusional gun nuts are among my favorite culture war casualties.

      1. You mean the ones that believe politicians? Yes, they are both delusional and nuts.

      2. Yes its not like there are mass protests about abuse by government agents going on right now…

      3. Yeah, those gun grabbers must be really frustrated, since almost everywhere has concealed carry now, as opposed to 30 years ago when almost nowhere did.

    2. “There is no rational basis which correlates reduced clip size with reduction in crime. There is no claim of increased public safety by reducing clip size.”

      Just for fun, look up the case of convicted mass shooter Kip Kinkel. (Wikipedia has an entry under “Thurston High School shooting”)
      Kinkel was carrying over 1000 rounds when he started shooting. He was captured when he emptied his magazine and had to stop shooting to reload. It was an unarmed high-school student who ended the rampage.

      In short, if the mass shooter has to stop shooting to change either weapons or magazines, they’ll have fewer total victims. Those of us on the not-the-mass-shooter’s side of things would count that as a “win”, and might even use the words “increased public safety” in describing the win.

  4. I’m not sure where I fall on this. I think most people would agree there is a certain number high enough that such a limit would not burden self defense. I know some think any restriction even if it isn’t technically a burden is still unconstitutional but none of our rights have ever been read as absolute like that.

    So the question is from a constitutional standpoint what is that number? And I have no idea how to answer that. How can any one possibly determine the inflection point where it changes from a burden to not a burden? I think it is reasonable in this case to believe that 10 doesn’t burden self defense. It is also completely reasonable to believe the opposite. But neither belief is one that can be said by objective fact. How should a court handle that?

    1. I guess I sort of agree; It wouldn’t obviously be a burden on self defense, (Which is NOT the only basis for lawfully owning a gun, and so can’t be the end of the analysis.) were you to restrict 1000 round backpack magazines.

      In this case, California had banned the majority of magazines in the country, so it was kind of an open and shut analysis. The majority are, tautologically, “in common use”. Had they just banned 100 round magazines, such as I have for my 9mm carbine, it would have been a closer question.

      1. I’m not at all sure that just because a clip is in common use, it can’t be banned under Heller. Heller situated the RKBA as a right to self defense of the home (which, by the way, I think was a mistake- the Second Amendment, as I have said many times, is very clearly and by its terms about the function of an armed populace in civil defense).

        But if we take Heller on its terms, you can easily argue that 10 rounds is more than enough to defend one’s home from a typical intruder. Honestly, any scenario where a homeowner would need more than 10 rounds without reloading is probably a scenario with numerous attackers where she is going to get killed anyway.

        I can make a very strong collective civil defense argument that gun owners should be able to have larger clips. The funny thing is, gun rights types don’t like collective civil defense arguments, because they imply that they owe obligations to the government when they imagine themselves revolting against it. But if you want a RKBA that extends to some military style weapons, the only interpretation of the Second Amendment that will actually get you there is an interpretation that posits armed citizens coming to the defense of the state.

        1. No, Heller foreclosed that argument by it’s common use for lawful purposes language. If over half of the magazines in the county in lawful use have over that capacity, (And they do.) you’re out of luck in banning them.

        2. “The funny thing is, gun rights types don’t like collective civil defense arguments, ”

          Almost all gun right types agree that their is a collective right in 2A. They also agree that 2a protects the individual right and those two rights are not mutually exclusive. Unlike stevens’ dishonesty in his dissent where he pretended that there was zero historical writing protecting the individual right. To further point out Stevens’ dishonesty, there was zero historical writing which limited the right to keep and bear arms to only serving in a militia. If Stevens claim was true, then there would have been massive historical writing against such limitation.

          1. Stevens was wrong. It’s an individual right.

            But the PURPOSE and SCOPE of the right arise out of its relationship to collective civil defense. That’s why “a well regulated militia” is in there. The idea is you have this individual right to keep and bear arms- including some powerful ones!- but you are going to be disciplined and trained and regulated by the government so that you can be called to its defense in an emergency. It’s something like Switzerland.

            And gun rights types DO NOT like that sort of reasoning, because there’s just way too much anarcho-libertarian “nobody can tell me what guns I can have or impose any regulations on me!” in the movement. So they can’t concede that.

            1. We possess the right to armed self defense, and the most feasible way to do so is a modern firearm of the type that is the most comfortable to the owner. An old lady might find a shotgun unwieldy and therefor unsuitable. What follows from that is a free populous, armed to the level they wish, available to serve in the militia. Your dream of training and discipline implies that if you don’t come up to the necessary standards, your 2nd Amendment rights would be curtailed. Can’t carry an 8 pound rifle for 8 hours a day? You can’t be in the militia and you have little to no right to armed self defense.

              People will train to the level they find most useful. In aggregate, they will constitute the militia. Imposing regulation and standards on militia members leaves too much latitude to potentially hostile authorities. I wouldn’t trust either Andrew Cuomo or Greg Abbott to do the right thing if push came to shove.

              1. “populous”

                Today’s pedantry is brought to you by the difference between “populous” an adjective meaning heavily populated, and “populace”, a noun meaning the actual occupants of a region.

                You increase the likelihood that someone will believe that you know what you’re talking about if you improve the accuracy of the selection of the words you use to express yourself.

              2. “Your dream of training and discipline implies that if you don’t come up to the necessary standards, your 2nd Amendment rights would be curtailed.”

                Absofrickinglutely. Just like if you can’t afford a boat, your right to travel on navigable waters is curtailed, or if you can’t show an ability to drive safely in accordance with traffic laws your right to travel the roadways of America can be limited.

                1. Any law that restricted boat ownership to those fit enough to join the navy, or drivers’ licenses to those who qualify to be combat drivers, would be struck down the minute it came before a court.

                  1. How about a law requiring a boat carry as many lifejackets as passengers, and that minors be wearing them? Or a law requiring drivers wear seatbelts?

        3. Your ten round limit shows how little you know. Home invaders have attacked in groups. It’s not common, but neither is home invasion itself. Neither are home fires, yet no one thinks fire extinguishers are useless.

          1. If you get a group of home invaders, you are dead. I am sorry. Life isn’t a Rambo movie.

            1. Not so. Some have survived. And trying sure beats giving up, and it absolutely beats having the State prevent you from trying.

            2. If you factor in some shots missing their target and each invader requiring multiple shots before going down, the ten round limit is easy to hit, even with one invader, let alone more. This desire to tightly control exactly how many opportunities an innocent person has to defend herself is disgusting.

            3. Except that people do survive them, sometimes leaving several former home invaders as casualties. One I read about a couple months ago ended up with two dead and two wounded home intruders, and a wounded home owner. When the two survivors showed up at the local hospital, they were arrested, and potentially charged with felony murder.

              While rare, it does happen at least a couple times a year.

              1. “Except that people do survive them, sometimes leaving several former home invaders as casualties. ”

                The story they tell is one of home invasion, which they can get away with if they’ve killed anyone with a different story.

                1. And you have reason to doubt it?

                  1. When the dead tell no tales, you have to wonder if anyone is speaking for them…

            4. “If you get a group of home invaders, you are dead. I am sorry. Life isn’t a Rambo movie.”

              Headline: Armed Home Invasion: Teen Victim Shoots All 3 Suspects.

              The first page of my search has other examples.

              1. Tactical surprise is incredibly valuable. and hard to achieve if you are the defender.

        4. You are also wrong about Heller limiting itself to the home. It quite explicitly mentioned “bear” as being pointless if it was limited to carrying in the home.

          1. You haven’t seen SCOTUS rule on a “bear” case yet, have you?

            1. You didn’t read what I replied to, did you?

              Heller situated the RKBA as a right to self defense of the home

        5. Please. “Magazines”. Not “Clips”.

          During WW II, the US fought with stripper clips for its M1 Garland main battle rifles, and detachable magazines for their M1 Carbines, and smaller machine guns (BAR, Thompson, Grease Gun, etc). Clips typically are used to load magazines more quickly, and with the M1 Garland, its internal magazines. Detachable magazines, as used with the M1 Carbine, AR-15, Glocks, etc, typically already have the ammunition loaded in them, and can usually be quickly exchanged for a reload. Importantly, I think, clips rarely hold enough ammunition to run afoul of these limits, but magazines most typically do (nationwide). A 10 round clip is probably a rarity, while 30 round AR-15 magazines are the most common type (for the standard 5.56/.223 ammunition shot in these guns).

          1. See the gun grammar nazi who is also wrong. There were no stripper clips for M1 Garands. There were en bloc clips.

          2. I know the difference between a clip and a magazine. That said, I know a number of knowledgeable gun owners – including WWII veterans – who use the two terms interchangeably. I think your battle was lost long ago.

        6. But if we take Heller on its terms, you can easily argue that 10 rounds is more than enough to defend one’s home from a typical intruder. Honestly, any scenario where a homeowner would need more than 10 rounds without reloading is probably a scenario with numerous attackers where she is going to get killed anyway.

          Then why the exemption for retired law enforcement?

          1. “Then why the exemption for retired law enforcement?”

            Retired law enforcement have interacted with the sort of criminal who holds a lifetime grudge. The sort of criminals who might make a home visit and need some persuasion to abandon a plan of unlawful retribution.
            Plus, in theory, the LE community has received training in the use of firearms and are screened to be the type of people less likely to use them unlawfully. (YMMV)

    2. Note that the lawyer for California was hesitant to concede that there could be a problem limiting people to zero round magazines.

      1. zero round magazines is what people had when the 2A was ratified.

        1. That’s simply not true. Repeating firearms with 10+ magazines had existed for well over 100 years at the time the Bill of Rights was ratified.
          You are confusing common military firearms with available firearms. Few armies adopted repeating rifles until after 1875, even when they were common in civilians hands.
          The issue being training and cost. When the Bill of Rights was adopted, repeating firearms were very expensive and were the domain of wealthy educated people, but they were available.

          1. ” When the Bill of Rights was adopted, repeating firearms were very expensive and were the domain of wealthy educated people”

            So you could say that the rest of the people , the ones who were not wealthy educated people, had firearms zero round magazines, then?

    3. Along the same lines, a state could try to enact a ban on any woman having more than 150 abortions in her lifetime.

      Sure, you could have a long argument on whether that would actually burden any women. But it would be obvious that the state’s just engaging in an attempt to find any small constitutional beachhead in their fight against abortion. Those of us in favor of abortion rights would understand that (constitutionality aside) there’s no good reason to concede 150 since it’s clearly an attempt to get a foot in the door, or at best just random-ass symbolic hostility.

      Of course, at 10 the magazine limit has plenty of immediate, tangible effect on real people. But if they tried at a 1000, there would still be no reason to concede.

      1. Well one reason to concede would be that you might lose the case. 🙂

        Seriously, you guys on the gun rights side have to understand that part of winning cases is CONVINCING PEOPLE WHO MIGHT NOT SHARE YOUR POLICY PRIORS. In other words, some of the judges you run into are going to be people who are very skeptical of guns and are very afraid of mass shootings. You have to persuade them.

        A really good way NOT to persuade them is to say “a rule prohibiting a 1000 round magazine is unconstitutional”.

        1. Given the state of Democratic 2A jurisprudence, I don’t think they’ll respond well even to good 2A arguments tailored to their biases.

        2. Sure, if one is just talking strategy. You look at the judge that gets assigned or is likely to be assigned and make some decisions. And it works both ways – for example, if the judge looks like s/z/he might be willing to rule that if ownership one piece of a given class of gun or round is constitutionally protected, than any number must therefore be protected – then it might be good strategy to go for the high number.

          Although, in this particular case, the list of exceptions that Kazinski posted is the weakest point. It should be fairly easy to argue that whatever a “deputy coroner” needed >10 rounds for, applies equally well to the average citizen.

          1. Depends on what training is handed out to “deputy coroners” or whatever entry on the listing you find most ridiculous.

            Surprise, I find the best analogue to be driving. Before people can drive, they have to demonstrate that the know the laws involved in exercising the right to drive, and they have to demonstrate ability to drive safely, and to keep doing it they have to maintain liability insurance to protect anyone who is injured as a result of sloppy driving. All of these seem like reasonable restrictions on the right to drive.

      2. ” there would still be no reason to concede ”

        No one is asking you to concede.

        But you will comply.

        1. You think so? You are delusional …

        2. Thus always to tyrants.

    4. You make the mistake of thinking the government has to have any kind of a ban in place. Why? Why do you think government has to step into the matter at all? Why this default delusion that everything must be the government’s business, and the only question is how they should interfere?

      How many rounds do you think people would carry if it were not for the government setting limits? 1000?

      1. My guess there is maybe 50 rounds for a handgun, and 60-90 for a long(ish) gun. There is a weight tradeoff. My observation of the police, who have to lug the weight around all the time, is that they often carry two spare double stack or three spare single stack magazines. I think that if it had been I who had confronted the BLM/AntiFA crowd, instead of the McCafertys, in St Louis, I would have wanted a second 30 round magazine attached to the first one, and maybe a handgun for backup.

        Everything is a tradeoff. When I conceal carry, I often forego the spare double stack magazines (leaving me with maybe 17 rounds). I am just not in a position where I might need that many more rounds, that it makes sense lugging them around all the time.

        1. Human rights are a tradeoff with political power grabs?

          What exactly gives you the right to trade my right to self-defense for anything that you want and I don’t?

          1. Not sure your point. I was explaining why most people, given the choice, don’t lug a dozen magazines around every day. In most of this country, it would be perfectly legal to do. But almost no one does it.

          2. “What exactly gives you the right to trade my right to self-defense for anything that you want and I don’t?”

            If your right to self-defense impinges on mine, that’s what. Millions of weapons are routinely carried by people who handle them safely and responsibly, with no problem whatsoever because they ARE safe and responsible. On the other hand, there are the “hold my beer and watch this” contingent, who are NOT responsibly carrying their weapons, and they pose a risk to everyone near them. I have only your word which category you belong to, and I don’t have to believe it.

        2. I don’t find it convenient to do x, therefore it should be illegal to do x!

        3. My Calico isn’t unreasonably heavy with the 100 round magazine of 9mm. At least, I’ve hefted long big bore handguns that were more awkward, the fact that the Calico is well balanced helps.

          But, yes, I think there’s a practical limit to how much ammo people are going to want in a magazine, even without any legal limits, just based on weight. Especially for routine concealed carry.

    5. If its not obvious of what the answer is, then the government has no power to decide.

    6. By some estimates 60%-70% of police officers in the US carry Glock 22s which I believe have a 15 round standard magazine and I wonder why “civilians” should not be allowed similar access.

      Police do have a somewhat different role than civilians. However, they are primarily carrying sidearms for self defense.

      Differences between the police on duty and an individual defending themselves and their family, either within their home or outside of the scope of their home, can be stark and tend to suggest that the individual may need more rounds in the magazine of their self defense firearm.

      First, police are (supposedly) very well trained in the use of firearms so their accuracy should be substantially higher than the average individual defending themselves – just as race car driver should be substantially more skilled than the average driver. Thus, the police should need fewer rounds to stop a threat.

      Second, uniformed police are rarely targeted for muggings, holdups, or home invasions by petty criminals. This is partially because such police are often uniformed and known to carry firearms. Criminals also likely understand that if they do shoot (and especially kill) an officer when holding them up, the department will concentrate on figuring out who injured/killed the officer to the exclusion of other activities and, upon identifying a suspect, most (excluding perhaps “progressive” areas) DAs are going to charge the suspect to the max and put top prosecutors on the case.

      Third, police have no obligation to protect their clients (you and me) and can simply wait for backup (and sometimes have backup in the right seat) and choose not to engage. That option is not a realistic option for the typical “civilian” victim when their, or their family’s, life is at immediate risk.

      Fourth, police in most areas get the benefit of the doubt when they shoot someone (it might cost them their job in some cases, but if the shooting is minimally justified, it rarely results in criminal prosecution and even more rarely in conviction). An ordinary citizen, esp. outside their home, is unlikely to get such leeway in many areas. As a result, a rational individual is likely to wait until a threatening individual is closer and more threatening than a police officer would — and this may require that the individual will require more force (in the form of more holes in the attacker), in order to stop the threat more quickly.

      Fifth, cases of multiple people threatening deadly force against an individual police officer, in their role as a police officer, appear to be quite rare. The same can not be said for individuals (such as couples being held up, clerks being robbed, or a home being invaded). Thus, it seems more likely that an individual will find themselves facing two or three attackers so can only devote 50% or 33% of their magazine capacity to each.

      Admittedly, a lone police officer generally puts themselves at risk much more frequently than most individuals. However, presumably police are armed with the intent that they have a high likelihood of winning each battle. Surely a private individual should be allowed similar odds in a given battle even if such battles are rarer.

      1. Just surprised that so many cops are carrying .40 mm G22s instead of the 9 mm G17s, that shoot lighter and carry two more rounds. Esp with the FBI having moved to 9 mm.

        1. .40 S&W has been pretty dominant in law enforcement for a while. Now that 9mm rounds are starting to achieve comparable ballistic performances, I suspect we’ll start to see a shift back. (I typically carry a 9mm for what it’s worth.)

          1. So do I (carry 9 mm) mostly, for self defense against people. My bear gun though is a 10 mm G20, that shoots 40 S&W just fine. Normally, I carry 10 mm in the gun, but practice with .40. But right now, 10 mm is much more plentiful and doesn’t cost any more, at least here in NW MT. (The strip of central MT between Yellowstone and Glacier, plus central East ID and NW WY appear to be 10 mm central in this country – due to the possibility of running into brown bears). So, I am now practicing with 10 mm. This time of year, when we are in MT, I will either have a magazine alternating solid cast and JHP, or straight solid cast, depending on the odds of running into bears. And then carry a full magazine of JHP (etc) as backup. But when we move back to AZ for the winter, I will start carrying 9 mm JHP (etc) again.

            1. Stopping a bear with a handgun is at best a crapshoot. If you have time to aim, you might get off a fatal shot, but the things are faster than anybody ever thinks they are. It’s effective as a noisemaker, which is often effective in convincing a bear to be elsewhere.

  5. Pretty much dictated by Heller’s “in common use” standard: What California labels “large capacity magazines” are actually normal capacity.

    Interesting that they found the California law failed under both the 2nd AND the 5th amendments. Aside from the 2nd amendment violation, the law was an unconstitutional taking of property without compensation.

    I especially liked that they explicitly recognized that you can’t evaluate whether a gun is “unusual” on a purely statistical basis:

    “Commonality is determined largely by statistics. But a pure statistical inquiry may hide as much as it reveals. In the Second Amendment context, protected arms may not be numerically common by virtue of an unchallenged, unconstitutional regulation.”

    This is an important consideration, for a right that the Court left totally unprotected for most of a century.

    Generally a good ruling, I just wish they’d recognized that even the NFA might fall into this category if ever analyzed by a Court that wasn’t determined to safeguard it.

    Even Roberts would be hard put to justify overturning this ruling, if it reached him. So I expect the Court would just refuse certiorari without comment…

    1. The commonality argument goes both ways too. One might argue that its not a burden to *find* a 10 round magazine for a particular firearm, but that’s only due to the fact that 10 rounds has been the arbitrary limit for over 30 years in some places, so the magazines have become common enough solely based on the existence of an unconstitutional law

      1. Not really. I don’t see the recipricality. You can’t realistically argue that standard sized magazines (15 for many semiautomatics, 30 for modern sporting guns, such as AR-15s) aren’t in common use, and thus can be banned, because there are tens, maybe hundreds, of millions in circulation in this country (I think that I have over 50 magazines that would have violated the CA law) now, ranging from .380 up through .300 AAC Blackout). It doesn’t really matter that there are millions of reduced capacity magazines in circulation, and are thus are in common use too, since the goal, by the gun grabbers, is to remove standard capacity magazines from the public, leaving them with low capacity magazines (which was the subject of this lawsuit). Indeed, if you prefer to only have 10 round magazines, when 15 round magazines are legally available, you can always just load 10 rounds, or even plug the standard sized magazines to only accept a reduced number of rounds. Of course, for obvious reasons, that is rarely done, if you have the choice. Let me add that reduced capacity (esp 10 round) magazines almost always seem to cost a couple bucks more than their standard capacity counterparts, in states without magazine capacity limitations. I thought it weird, at first, but it is a supply/demand issue

        1. ” Indeed, if you prefer to only have 10 round magazines, when 15 round magazines are legally available, you can always just load 10 rounds, or even plug the standard sized magazines to only accept a reduced number of rounds.”

          Years ago, in AF BMT, we loaded magazines with 10 rounds each for M-16 training. It was considered a range-safety violation to load more than 10 rounds into a magazine. or to place the rifle into automatic mode or burst mode. We did 10 rounds each standing, sitting, kneeling, and prone. Then they take the rifles away from us and never gave them back again. These rifles are modified to use .22 ammo, and they jam about every third round. Fortunately, the AF is not a rifle-oriented operation. Minimum passing score is 0 with 40 rounds delivered downrange with no range-safety violations. A range-safety violation gets you sent back to day 1 of BMT.
          One of the range-safety violations that can be committed is to reach over the firing line into the range while the range is hot. They tell you specifically “do not put any part of your body over the firing line into the range while the range is hot. This is a range-safety violation and you will be sent back to the start of BMT if you do. Specifically, do not reach over the firing line to retrieve brass. We (the rifle range staff) will collect the brass at the end of the day.” There’s about one range safety officer for every three trainees. I saw two guys get busted for reaching over the firing line to retrieve brass.
          This concludes my list of fun BMT reminiscences.

  6. It seems indefensible in 2020 that the ban exempted law enforcement from both the “unsafe” weapons ban and the high capacity magazine ban. Both bans are unconstitutional, but the state can’t even show that such guns and magazines, in the hands of lawful purchasers, are anymore unsafe than in the hands of the police and the smorgasbord of agencies below.

    Here is a partial list of exempted “law enforcement”:
    The Department of Parks and Recreation
    The Department of Alcoholic Beverage Control
    The Division of Investigation of the Department of Consumer Affairs
    The Department of Motor Vehicles
    The Fraud Division of the Department of Insurance
    The State Department of State Hospitals
    The Department of Fish and Wildlife
    The State Department of Developmental Services
    The Department of Forestry and Fire Protection
    A county probation department
    The Los Angeles World Airports, as defined in Penal Code section 830.15
    A K-12 public school district for use by a school police officer, as described in Penal Code section 830.32
    A municipal water district for use by a park ranger, as described in Penal Code section 830.34
    A county for use by a welfare fraud investigator or inspector, as described in Penal Code section 830.35
    A county for use by the coroner or deputy coroner, as described in Penal Code section 830.35
    The Supreme Court and the courts of appeal for use by marshals of the Supreme Court and bailiffs of the courts of appeal, and coordinators of security for the judicial branch, as described in Penal Code section 830.36
    A fire department or fire protection agency of a county, city, city and county, or the state for use by either of the following:
    A member of an arson-investigating unit, regularly paid and employed in that capacity pursuant to Penal Code section 830.37
    A member other than a member of an arson-investigation unit, regularly paid and employed in that capacity pursuant to Penal Code section 830.37
    The University of California Police Department, or the California State University Police Departments, as described in Penal Code section 830.2
    A California Community College police department, as described in Penal Code section 830.32

    1. What happens then when public policy becomes for police to not respond to potentially violent situations, but rather just to respond to previous violence? We are seeing that across the country in long term Dem controlled cities that have succumbed, at least 5o some extent, to the demand to Defund The Police. It is also happening in places where the rioters are given priority to the police, and the police are being prosecuted politically for doing what is normally considered their job (the “Ferguson Effect” seen so graphically in the prosecution of the four officers present when George Floyd died in their custody in Minneapolis).

      The argument for not applying these limitations to the police is that they need the extra security because they go in harms’ way, so that the rest of us don’t have to. But in a number of cities across the country, they no longer are doing so.

      So, where is that argument today, when a 911 caller of a home invasion is likely to be told to call back if there actually was violence, and then the police will follow up, and write up a report, if it was important enough? When the excuse is that you just have to have enough ammunition to stand off the intruders until the police respond?

      1. “So, where is that argument today, when a 911 caller of a home invasion is likely to be told to call back if there actually was violence, and then the police will follow up, and write up a report, if it was important enough? When the excuse is that you just have to have enough ammunition to stand off the intruders until the police respond?”

        You sound like a campaign ad. I don’t mean metaphorically, I mean I literally saw this ad.

    2. A county for use by the coroner or deputy coroner, as described in Penal Code section 830.35
      […]
      A member of an arson-investigating unit, regularly paid and employed in that capacity pursuant to Penal Code section 830.37

      These are particularly unjustified. Those in both of these roles are, as far as I can tell, generally only brought to/come to a crime scene well after the police have secured it and generally when there are still police on the scene.

      1. “…only brought to/come to a crime scene well after the police have secured it and generally when there are still police on the scene.”

        It might be days before arson investigators start investigating, and often there aren’t any police at fire scenes in the first place.

  7. My really bad napkin math it says that this has a 40% chance of being upheld en banc if judges go strictly along partisan lines.

    I would say that given this, and given the recent Supreme Court leaks that says Roberts is unwilling to overturn gun control, especially not a democratic sacred cow like magazine bands, it’s almost a certainty California will seek a full panel appeal.

    1. The benefit of this is it gives Democratic legislators pause before jumping straight in with new bans in 2021.

      1. No it doesnt.

    2. The thing is, this ruling is so solid in terms of Supreme court precedent that even Roberts might be reluctant to let an en banc ruling overturning it stand. That would be a real upraised finger to the Supreme court.

    3. “My really bad napkin math it says that this has a 40% chance of being upheld en banc if judges go strictly along partisan lines.”

      In a perfect world, “partisan lines” wouldn’t let you predict anything about judges.

  8. I’ve seen this, “the second amendment is not burdened because there’s alternate means of self defense” brought up quite a bit.

    There is no limiting principle attached to this, and given enough time, legislators can ban all firearms as long as there are rocks to throw.

    This strikes me as analogous as saying newspapers may be banned because people can still read magazines

    1. Yes, it’s quite irrelevant, because the 2nd amendment doesn’t say anything about self defense. It just says the right shall not be infringed. Self defense is just one example of a lawful use of firearms.

      1. No it doesn’t “just” say that. It says a well regulated militia is necessary to the defense of a free state as well.

        Scalia was trying to respond to immature, anarcho-libertarian gun nuts who didn’t want to acknowledge their obligations to defend the government. So he cut the right loose from that, which meant he had to find another philosophical grounding for it, which is why we ended up with self-defense.

        I am fine with enforcing the 2nd Amendment’s text. But the 2nd Amendment’s text is very clear that gun ownership is BOTH a right AND an obligation, with the ultimate idea being some sort of armed populace a la the Swiss. Which would mean a lot more training, a lot more discipline- but, I will concede, might also mean a lot more powerful weaponry.

        1. “But the 2nd Amendment’s text is very clear that gun ownership is BOTH a right AND an obligation,”

          Well, you got that half right, anyway. The 2nd amendment is “just a right”, it only becomes an obligation via statute, which is why you’ve got all these people running around legally not owning guns.

          But, yes, the aim was a Swiss style militia system. A key point, though, was that the right was guaranteed to the people, NOT the militia, so that even if the militia system was discontinued, you’d still have an armed populace from which a militia could be raised in an emergency.

          The analogy I use is guaranteeing a right to own and train with fire fighting equipment, because you worry that the government might end up run by arsonists. If you just guaranteed the right of the fire department to such equipment, it could be mooted by shutting down the fire department. But if everybody can own fire extinguishers, you can put out fires even if the Mayor is a firebug, and orders the fire department to toast wieners over the fires he sets.

          A Bill of Rights is not an expression of trust in government, and it’s articles have to be read from a perspective which does NOT trust the government to have good motives…

          1. Brett,
            I’d say, except as to his second paragraph, Dilan is correct. I’d also say that your last two paragraphs are correct, though I have some problems w/ the preceding ones.
            One must recall the milieu for the 2A. It included, and still includes, the ancient Hue-and-Cry and Posse Comitatus doctrines. These imposed obligations on all able-bodied males to interdict and apprehend malefactors.
            One of the advantages of requiring submission to training and discipline as advocated by Dilan is that it would allow disclosure and discovery of those mentally-unsuited for this important function. It would also have the advantage of the corollary requirement that all able-bodied males and females own and become proficient w/ suitable firearms, such as AR-15s, Berettas, and Glocks.
            I’m confused by your scenario of “even if the militia system was discontinued”. It’s impossible for it to be discontinued. It is an inchoate institution that exists as long as there are at least two people alive and a threat of harm to one or the other.
            I concede a latent contradiction could be construed to exist between the duty to *defend* a government and the right to *oppose* a government. But as both are a function of the right of an individual to rationally assess the existence and origin of a threat and then to initiate action to eliminate the threat, I apprehend the contradiction vanishes.

            1. The Second Amendment assumes the existence of a militia. It says one is “necessary”.

              So yeah, you can’t really say “the militia system is extinguished”. If the militia system were really extinguished, the Second Amendment would become something like the electoral college, unmoored from its original structure, and we have seen quite recently what happened to the electoral college.

              We may not have a really clearly codified legal framework anymore with respect to how the militia works, but the Second Amendment presupposes that there is going to be an armed populace (that’s what it means when it says a militia) and that the government is going to have the power to regulate it and organize and call it up when necessary for civil defense. It’s really quite clear. And that SHOULD mean that some sorts of gun regulations are constitutional and others aren’t.

              1. No it doesn’t. The government can ensure a well-ordered militia by regulations, but it CANNOT regulate the right to keep and bear arms. So no gun regulations are constitutional. Because the militia clause is dependent on the RKBA clause, not the other way around.

              2. It says a well regulated militia is necessary to the security of a free state, but it doesn’t assume the people running the government will always agree with that, or even always want a free state. As I said, a bill of rights is something you have because you DON’T presume the government will be doing the right thing.

                We have the 2nd amendment because it was thought that the government might NOT want the militia system to remain viable, and an armed populace would keep it viable anyway.

                1. This is exactly right. The Constitution and Bill of Rights need to be understood in the philosophical traditions they came from… particularly Lockean Enlightenment ideas. Locke himself states that man has an inherent right and duty to use force and whatever tools necessary for the defense of his liberty, even if all that remains are his fists (he pretty much literally says as much). The “necessary” aspect of the 2A is to ensure that citizens live in a free state. What may pose a threat to that? External states are the obvious… so a pro-local state militia as many leftists imagine it to be (Patriots in other words… defending their government from outside threata) is accurate. But it isn’t everything. The government of the state may turn towards being unfree. To ensure it remains free the local government of the state itself must be viewed with mistrust. The militia is necessary to secure the state as free from the most local of threats… the would-be tyrants of the same government. It is the ideals of revolution boiled down to the necessarily logical point of self-defense of self-rights at a foundational level. That each person has rights and the right to defend them. That everyone has this creates a collective byproduct, but in now way recognizes the existence of freedom for all from an inherently collective origin with a collective obligation. It is like Rand said… all groups are nothing more than lots of individuals.

                2. “We have the 2nd amendment because it was thought that the government might NOT want the militia system to remain viable, and an armed populace would keep it viable anyway.

                  This is idiocy.
                  They weren’t making sure the people could fight their own government, they were making sure they could keep the colonial powers of Europe out of the United States. The Framers tried to keep the federal government from keeping a standing army, and they thought they could get away with that because the European powers were all a whole ocean away. As a backup, we’d keep an armed militia that was powerful enough to hold off a shipful or two foreign troops at a time. this saved us the cost of keeping an army, and limited our tendency to get involved in conflicts beyond our borders.

                  1. “This is idiocy.
                    They weren’t making sure the people could fight their own government, they were making sure they could keep the colonial powers of Europe out of the United States.”

                    Very much disagree. Up until we won our War of Independence, (proto) Americans were, by and large British. Not just more typically than not of British ancestry, but legally British citizens. Then, the British government, through its military stationed in Boston tried to disarm the citizenry, and that attempt was ultimately repulsed by the militias of Concord, Lexington, and the surrounding towns. Militias from surrounding colonies started arriving the next day, resulting in a siege of the British in Boston.

                    What must be remembered is that there was a common thread that ran from the calling out of the militias that fateful day, the drafting and adoption of the Declaration of Independence, and the Bill of Rights. A lot of the same people were involved all the way through. Thus, you cannot really read the 2nd Amdt without reference to the Declaration of Independence, and, in particular, the moral and quasi legal justifications for legally separating themselves from the British crown.

                    1. “Very much disagree. Up until we won our War of Independence, (proto) Americans were, by and large British. Not just more typically than not of British ancestry, but legally British citizens. Then, the British government, through its military stationed in Boston tried to disarm the citizenry, and that attempt was ultimately repulsed by the militias of Concord, Lexington, and the surrounding towns. Militias from surrounding colonies started arriving the next day, resulting in a siege of the British in Boston. ”

                      In other news, Britain was one of the European colonial powers. It held colonies in North America even after the War of Independence. The militias were how the new government of the United States intended to protect U.S. territory by invasions from Europe, in light of the decision to specifically limit the ability of the Congress to keep a standing army. They certainly didn’t intend to protect the right of the people to resist their lawful U.S. government… see how they responded to the various armed insurrections in the period shortly following the adoption of the Constitution.

                  2. You’re declaring “idiocy” what they literally came out and said was the purpose of the amendment.

                    “Whereas civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms.” Tenche Coxe

                    1. “You’re declaring “idiocy” what they literally came out and said was the purpose of the amendment. ”

                      What I’m labeling idiocy is actually idiocy. Just look at how the American government responded to armed insurrections shortly after the Constitution was adopted.

        2. The Constitution also has a preamble. How much legal weight does that carry?

      2. ” It just says the right shall not be infringed.”

        It says that, but it doesn’t JUST say that. There’s a whole other clause that has the word “regulated” right in it.

  9. I’m not a lawyer but I think that California could also seek to moot the case in a way by amending the limit to something like 15 or 30.

    It would certainly muddy the waters to do so, and require new legal analysis and justification to overturn the new limits.

    1. You don’t think they’ll litigate 11, and then 12, and then 13, etc?

      1. Yes but it resets the clock on getting overturned, and from California’s perspective something is better than nothing and eventually it comes to an end

  10. The court applied strict scrutiny. That alone will be sufficient grounds for an en banc hearing to reverse it, since the USSC hasnt had the guts to actually stand up to the lower courts in their misapplication of a lower standard of review for this, what Justice Thomas calls the “orphan” right.

    1. Based on existing precedent, I believe that the dissent was correct that “intermediate scrutiny” is the appropriate level in this case. That being said, I would probably vote to strike down the law under that standard because the ban is not sufficiently related to the interest. While it is true that a lot of mass shootings involve so-called LCM’s, what is the magic number of 10? Also, nothing is stopping a person from having multiple magazines that hold a maximum of 10 bullets. Intermediate scrutiny does not require the least restrictive means, but I fail to see the requisite connection between the solution and the government interest in preventing mass casualties with guns.

      1. In the interest of reducing the casualty count of mass shootings, making the shooter pause to either switch weapons or switch magazines is clearly beneficial. Balancing that benefit against the cost of limiting the effectiveness of using a single weapon for self-defense means that a limit must be selected… Ten seems as reasonable as any unless one is anticipating fighting off an invading army “Red Dawn” style or dealing with a zombie apocalypse. If anything, a limited ammunition supply advantages a wielder who can make each shot count, so higher skill with the weapon makes the weapon more useful. This should appeal to someone who has higher skill with the weapon.

    2. I wondered about that as well = strict scrutiny. It seems to me that the Ninth just changed the terms of debate on 2A. What I mean is the Ninth has now affirmed that 2A is a core individual right and strict scrutiny (not intermediate) will apply when evaluating state regulations that affect our 2A rights. That to me is the shift in the terms of the debate.

      Am I wrong in how I am interpreting the thrust of this opinion?

  11. I keep coming back to the premise that most of the laws restricting firearms are written by folks who are too ignorant of firearms to create laws relating to them.

    As someone who competes in 3-gun, Steel Challenge, and Action Pistol matches I can assure everyone that there is lots of discussion about magazines in terms of both capacity and issues or reliability. A general rule is that there is an inverse relationship between the capacity of a magazine and how reliable it is in competition. Point is that while there are several magazines in the 20-24 capacity range there are not a lot with more capacity. Not saying they don’t exist just that there is a jump from there to 50 and then to 100 capacity and those two are not known for being as reliable as smaller magazines.

    So it would be reasonable to say magazines larger than 25 are one place to draw the line in terms of ‘in general use’ in terms of current technology in use. But way back when I was a kid a 10 round magazine was considered the limit in terms of reliable technology. There were exceptions like the drum magazine on the Thompson submachinegun but again they were exceptions. The much more reliable BAR had a 20 round magazine (and a very limited production and withdrawn 40 round magazine). But both of these were fully automatic weapons. Semiautomatic weapons did not really have big magazines in terms of todays definition of magazines.

    One factor in the development of larger magazines was the development of smaller ammunition. The big selling point of the AR15/M16 over the more popular with soldiers was the smaller 5.56 round over the 7.62 round was the ability to carry more rounds in the same space, or the same amount of rounds in a smaller space.

    Bottom line is I am convinced in future years we will look at the current 20 round magazines the same way we look at 10 round magazines now.

    1. The problem though with limiting magazines to 15 rounds is that AR-15 magazine technology is at least 60 years old. Back then, 20 round magazines were about the limit to technology. But now? 30 round magazines are standard (outside states that limit capacity), in both the civilian and the military markets. Indeed, in states that I buy magazines in (AZ, MT, ID), it is hard to find anything except for 30 rounders for 5.56/.223. And a lot of deployed military use the same MagPul 30 round magazines that are so common in the civilian market.

      1. The original AR mag was 20 rounds because that could be fired prone and 30 couldn’t. Nothing to do with magazine technology, whatever that is.

        Where do you keep coming up with these howlers? I’m sure no gun expert, but I don’t pretend to be one with fake facts.

        1. “The original AR mag was 20 rounds because that could be fired prone and 30 couldn’t. ”

          there’s nothing magical about containing 30 rounds that makes a magazine incapable of being fired prone. Now the design considerations of a particular magazine may cause an issue but it isn’t a magical limitation that applies to all magazine designs.

          ” I’m sure no gun expert, but I don’t pretend to be one with fake facts.”
          Unless you count this one.

    2. “I keep coming back to the premise that most of the laws restricting firearms are written by folks who are too ignorant of firearms to create laws relating to them.”

      How about the companion problem that people who do really understand firearms are mostly uninterested in any laws that would have the effect of limiting them?

      Writing laws is difficult. This is why many legislators are more than happy to let other people do it for them.

  12. If I’m right, there needs to be at least three “defectors” among the Democratic appointees for en banc to be a denied. The chief justice’s views on gun control are well-known and it can be assumed he would vote to hear it and overturn it as well.

    It is very well possible that this gets denied and sits as a circuit split until the Democrats try to pass their party platform’s gun control wish list in 2022.

  13. For those of you that keep using the word “clip” as a synonym for magazine, they are not the same. There is generally speaking, no hi cap clips. If you don’t know the difference you should learn before you comment on the subject. As for California, had the fascist state left the in place the 20 year status quo banning sales and imports into the state but grandfathering previously owned hicaps, there may never have been an appeals courts case. California not content to let sleeping dogs have overplayed their hand once again in fascist incrementalism. Thank you California for continuing violate the constitution creating cases and controversies.

  14. I wish the Ninth Circuit would stop calling the way it reviews panel decisions “en banc review.”
    An en banc court is the full court. What the Ninth Circuit has is not that, but “Plus-Sized Panels.”
    A traditional en banc review that includes the full complement of active judges on a circuit court of appeals says something meaningful about the circuit.
    But this is just another roll of the dice, where the outcome is determined by which particular subset of judges is chosen.
    FWIW: I clerked on the old Fifth Circuit during its final year, in which there were 25 members of the en banc court, and I helped my judge on two en banc cases, both involving the federal securities laws — one in which she wrote the majority opinion for a 24/1 split, and the other in which she wrote the dissent for a 13/12 split. Yes, at oral argument, it took a long time for all 25 judges to walk in, and yes, the seats behind the bench, even in the en banc courtroom in New Orleans built for that purpose, were crowded. But those who say that such large en banc proceedings are impossible, or even impractical, are simply wrong.

    1. “A traditional en banc review that includes the full complement of active judges on a circuit court of appeals says something meaningful about the circuit.”

      The ninth has considerably more active judges than do any of the other circuits. They are spread further apart geographically, and getting them all together in once place is harder.

      1. Did you even read my comment? Your comment told me nothing I didn’t already know, and nothing that wasn’t already implicit in my comment.

        The old Fifth stretched from Florida to Texas. It had 26 active judgeships. And I was reporting from personal experience that that was indeed workable for en banc proceedings.

        The current Ninth has 29 active judgeships and stretches from Arizona to Washington State. It is no more unworkable for en banc proceedings than the old Fifth was. Indeed, when I clerked on the old Fifth, we had no emails or .pdf or PACER, but Federal Express could get overnight deliveries from New Orleans to Miami as quickly as they went from New Orleans to El Paso, and we managed just fine, thank you.

        This is distinct from the question of whether circuits should be split. Efforts to split the old Fifth were unsuccessful before 1979 mainly because Mississippi politicians perceived the circuit judges from Texas and Louisiana to be substantially more liberal, especially on questions of enforcement of the Civil Rights Act of 1964 and school desegregation, than the judges from Florida, Georgia, and Alabama. Recent attempts to split the current Ninth have likewise been blocked because of an unwillingness to split a California between two circuits and the difficulty of finding another state willing to be the red-headed stepchild left in combination with California in anything like a population-based equitable split.

        1. To be very precise:

          My complaint with the current “limited en banc” procedures of the Ninth Circuit is that it dilutes and distorts the meaning of “en banc.”

          On the old Fifth, with 25 active judges, any opinion released as a majority opinion of the “en banc Fifth Circuit” did indeed represent the views of a majority of the active judges on the Fifth Circuit.

          Now, it’s entirely possible — because of the element of chance inherent in the “limited en banc” review — for a purported “majority opinion” of the “en banc Ninth Circuit” to represent a minority viewpoint among the active judges of that circuit.

          It’s a species of judicial fraud, frankly — an imprecision at the best of times, and an outright parody of language and procedure at the worst.

  15. ‘High Capacity’ is a subjective definition to give lefties something to scare moms. It has no basis in reality. 10 rounds is high capacity for an M1911 pistol or M1 Garand. But the Glock19 pistol is designed for and ships with a 15 round magazine. A 15 round magazine for this firearm is standard capacity. The civilian AR15 is 9 out of 10 times going to be used with a 30 round magazine. Same for LEO and military use of the same style firearm. A 30 round magazine is standard capacity for them.

    1. If you are a reasonably good shot, you shouldn’t need more than 3 rounds to stop a person who is threatening you from continuing to do so. So the question becomes, how many people are you defending yourself from?

      In comparison, if the weapon is used for hunting animals, none of them can shoot back so the question of how long it takes to try again if you miss is a question of sporting ethics.

      1. That is plain silly. For example, Officer Darren Wilson needed roughly 12 rounds of .40 S&W JHP ammunition to stop 295 lb Mike Brown from killing him. Between 7 and 8 of these hit Brown. Two rounds were expended when Brown was attempting to take Wilson’s gun away from him, as he sat in his Police Tahoe. At least one of those hit Brown in the hand, leaving his blood inside on the door, etc. Then, after tailing Brown, the latter turned and tried to attack Wilson. He first hit him with two rounds to the arm. Brown shook it off, and started his charge again. This time Wilson hit Brown twice in the torso. Again, Brown stopped, shook it off, and started his charge again. Two bullets to the top of the head finally stopped Brown for good. Turns out, beyond the 7-8 bullets that Wilson shot Brown with, he also apparently missed with maybe 4 more. Figure 12-shots from a weapon that typically has 15+1 (16) rounds available were expended, 7-8 hit Brown, and maybe 4 missed. Wilson likely would have died that day if he had been carrying a 1911 with a single stack 7+1 (8) rounds available. But he had 16, and survived.

        Also note that Wilson appears to have been a better shot than most police authors. 7-8 hits from around 12 expended is actually quite good shooting – far better than most people could have done in his situation.

        1. “That is plain silly. For example, Officer Darren Wilson needed roughly 12 rounds of .40 S&W JHP ammunition to stop 295 lb Mike Brown from killing him.”

          This sounds like Officer Darren Wilson needs to spend more time on the range, or more time considering about whether or not to open fire in the first place.

          1. How often have you been in a life and death situation where a moving target is attacking you and trying to kill you? Statistics from police involved shootings indicate that he was far more accurate than most police are in such situations.

            1. If you’re arguing that most police have poor decision-making about questions of when and even whether to shoot, that’s a given.

    2. “‘High Capacity’ is a subjective definition to give lefties something to scare moms. It has no basis in reality. ”

      Well, it’s certainly relative, as you suggest but that doesn’t make “high capacity” unmoored from reality. It has one basis in reality…. the ability to kill a large number of people without having to stop to either switch weapons or magazines. What one considers a “high” number will vary from person to person, not from weapon to weapon.

      1. In short, your position is that everything is relative and everyone can have their own opinion.

        But, in the industry, standards are pretty well well, uh, standardized. Throughout most of the country, gun buyers expect roughly 15 round magazines for full and compact sized handguns with double stack magazines, and 30 round magazines for modern sporting rifles and carbines, such as AR-15S. Anything else is pure political spin.

        1. Sure. and throughout most of the country, chewing-gun buyers expect 5 sticks of gum in a package. How is that relevant to whether 5 sticks of a gum in a package is a “lot of gum” or not? If you’re the guy who has to scrape the wads of used gum off the bottom of the table you might have a different opinion on that question than you would if you just like to masticate. Either way, the traditional serving size for bubble-gum was one gumball at a time out of the gumball machine, and then back in the late 70’s Bubble Yum came along and put 5 pieces of bubblegum in one package. The fact that serving sizes of Bazooka didn’t change has no relevance to whether or not Bubble Yum is sold in packages with “a lot of gum” in them.

  16. It’s disgusting how Democrat judges will issue a national injunction against a policy of enforcing immigration laws against illegal aliens but when a circuit court finds the rights of citizens are being violated the Infringing law is kept in force.

    1. “It’s disgusting how Democrat judges will issue a national injunction against a policy…”

      If a policy is unconstitutional, then it’s void. If it’s void, then it isn’t enforceable anywhere. QED.

  17. In 1791, nobody could own a magazine that held more than 10 rounds of ammunition, much less use one for self-defense.

    What does this ruling say for originalism?

    1. While the modern idea of a magazine didn’t yet exist, there were designs of weapons that held multiple rounds and these were held in private hands as well as sold to the state for military use. They were not the most reliable, but reliability is not the issue… the issue is that even a weapon designed to fire (iirc) 7 rounds per second for an uninterruptable period of time (around a minute I believe… again, iirc, the weapon held over 100 rounds) was designed, built, owned by private citizens (very few… 2-3 maybe? It was prohibitively rare and expensive), and adopted as a defensive weapon for small Navy vessels and there existed no laws or governmental attempts at restricting such a weapon.

      1. ” It was prohibitively rare and expensive), and adopted as a defensive weapon for small Navy vessels and there existed no laws or governmental attempts at restricting such a weapon.”

        You don’t need to make laws or governmental attempts to restrict things that are prohibitively rare and expensive. There aren’t currently any laws that restrict ownership or possession of an aircraft carrier, because there’s just no point.

    2. Also in 1791 no one could make stupid comments on the internet. But you still have the right to do so guaranteed by the Bill of Rights.

      1. So you’ve chosen to exercise this right.

  18. There is a weapon historian who has a series of youtube videos in which he discusses this and other historical firearms. Can’t remember the name. Sorry.

    1. The ability of weaponsmiths to make rifles with interchangeable parts was still new.

  19. So many of California’s restrictions on guns seem to contradict equal protection under the law. Most citizens can’t have magazines over 10 rounds or purchase handguns not on California’s roster of what the state considers “safe”, but police officers can purchase “unsafe” handguns and normal capacity magazines for their own personal use, and police departments are free to issue “unsafe” handguns to their officers. Similarly, its near impossible to get a CCW in most counties in California unless you are rich and famous or protecting someone who is. I often wonder how these laws haven’t been successfully challenged on 14th amendment grounds. It would seem to be a strong argument. Given the behavior of police in recent years how many people still actually believe police are more competent with firearms than the average armed citizen.

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