The U.S. Court of Appeals for the 9th Circuit yesterday vacated a 2020 decision that blocked California's ban on magazines that hold more than 10 rounds. A federal judge in 2019 concluded that the law, which prohibits possession as well as manufacture and sale, was inconsistent with the Second Amendment. Last year a three-judge 9th Circuit panel agreed. Now the full court will rehear Duncan v. Becerra, raising the possibility that the ban will be upheld after all.
California Attorney General Xavier Becerra, the defendant in the lawsuit, welcomed that development. "Large-capacity magazines have been used in many horrific mass shootings around the country, including right here in California," he said in a press release. "That's why today's decision by the Ninth Circuit to rehear this case is critical; it is the next step in the defense of our state's commonsense gun laws."
Becerra's notion of "common sense," like President Joe Biden's, may be common, but that does not mean it makes any sense. Becerra thinks it is self-evident that a 10-round limit on magazine capacity saves lives by making mass shootings less deadly. At the same time, he cannot conceive of a situation where anyone would need more than 10 rounds for self-defense. The advantage that extra rounds give a mass shooter by reducing the time spent switching magazines somehow disappears when a law-abiding gun owner is defending himself, his family, or his property from violent criminals.
Biden, who favors a federal law similar to California's, shares these seemingly contradictory premises, and he does not even attempt to persuade anyone who might be skeptical. To give you a sense of Biden's reasoning, he notes that "federal law prevents hunters from hunting migratory game birds with more than three shells in their shotgun." In his view, "that means our federal law does more to protect ducks than children."
Whatever emotional appeal that line may have, its illogic should be clear to anyone who considers it for more than a fraction of a second. Biden is suggesting that Americans who own guns for self-defense should be subject to the same limits as duck hunters, notwithstanding the obvious differences between these two situations. Unlike human criminals, ducks do not threaten to rob, assault, rape, or murder people, and they do not shoot back. And unlike duck hunting, which the federal government regulates under the Migratory Bird Treaty Act, armed self-defense is a fundamental human right that also happens to be protected by the Constitution. A general three-round limit would effectively ban all semi-automatic firearms and revolvers, which would be clearly unconstitutional.
Does adding seven rounds to that limit solve the problem? U.S. District Judge Roger Benitez thought not, and two members of the 9th Circuit panel that reviewed his decision concurred. Both decisions described circumstances (including actual cases) where having more than 10 rounds in a magazine could make a crucial difference for people using guns in self-defense—circumstances that are much more common than the scenario in which the need to switch magazines provides a "critical pause" that allows a mass shooter's victims to overpower him or escape.
Despite the impression created by the attention they get, mass shootings are rare events. In the United States, they account for less than 1 percent of gun homicides and have occurred an average of fewer than five times a year during the last two decades. Mass shootings in which magazine size arguably made an important difference are rarer still.
By comparison, Benitez cites survey data suggesting that Americans use guns in self-defense millions of times a year. Even if that estimate is off by an order of magnitude, and even allowing for the fact that the vast majority of these uses involve brandishing a gun rather than firing it, the potential defensive advantage of magazines that hold more than 10 rounds is bound to outweigh the potential offensive advantage for mass shooters.
"From the perspective of a victim trying to defend her home and family," Benitez noted, "the time required to re-load a pistol after the tenth shot might be called a 'lethal pause,' as it typically takes a victim much longer to re-load (if they can do it at all) than a perpetrator planning an attack. In other words, the re-loading 'pause' the State seeks in hopes of stopping a mass shooter also tends to create an even more dangerous time for every victim who must try to defend herself with a small-capacity magazine."
California calls the products it wants to confiscate "large-capacity magazines" (LCMs); Biden calls them "high-capacity magazines." Both terms are highly misleading.
Many of the most popular guns sold in the United States, such as the Glock 17 pistol, the Ruger 10/22 rifle, and the AR-15 rifle, come equipped with magazines that exceed California's arbitrary limit, which was originally imposed in 2000 and extended to pre-existing hardware by a 2016 ballot initiative. As the 9th Circuit panel noted, so-called LCMs account for roughly half of the 230 million or so magazines owned by Americans. A capacity of more than 10 rounds is neither "large" nor "high"; it is standard.
The popularity of these magazines makes a difference in the constitutional analysis, because it means they are in common use for lawful purposes—the Supreme Court's test for deciding which arms are covered by the Second Amendment. In Benitez's view, that fact alone dooms a blanket ban like California's.
Becerra thinks 10 rounds is plenty for self-defense, meaning that the millions of Americans who disagree are either lying or deluded. Yet California's LCM ban, like similar laws in other states, includes an exemption for employees of law enforcement agencies, whether on duty or off, and retired cops. Those groups predictably bridle at the notion that they should be subject to the same limit as everyone else.
Former New York City Police Commissioner Bernard Kerik was outraged when New Jersey legislators accidentally omitted off-duty cops from the privilege of exceeding that state's 10-round limit. By signing that law, Kerik said on Twitter in 2018, Gov. Phil Murphy was "endangering the life of every off duty NJ cop!"
How so? "Gang bangers, drug thugs and really bad guys don't give a damn about magazine capacity," Kerik explained. "So he takes the good guy's ammunition, and the bad guys are loaded for bear!" Kerik vented some more in an interview with Fox News. "You're taking the ability away from the cops to possess the rounds they may need in a gun battle," he said. "That's insane."
Something similar happened with the seven-round magazine limit that New York legislators hastily enacted in 2013, except in that case it was former cops who were overlooked. They angrily demanded the double standard to which they were accustomed, and the legislature gave it to them a few months later.
Notice that Kerik readily conceded New Jersey's magazine limit would have no impact on criminals, and he took it for granted that the difference between 10 and 15 rounds could be the difference between life and death for someone using a gun in self-defense. Yet somehow that extra margin of safety is intolerable for citizens without badges.
If a complete ban on possession of arms commonly used for lawful purposes is automatically unconstitutional, as Benitez suggested, the costs and benefits of that policy don't affect the legal analysis. But otherwise, they matter a lot. Under "strict scrutiny," the standard that the 9th Circuit panel deemed appropriate, California's law must be "narrowly tailored" to advance a compelling government interest. Under "intermediate scrutiny," which the panel also considered for the sake of argument, the law "must be substantially related to an important governmental objective." Either way, there has to be some fit between means and ends.
Becerra not only ignores the costs of California's LCM ban; he musters almost no evidence of its benefits. "The quality of the evidence relied on by the State is remarkably thin," Benitez noted, and the 9th Circuit panel agreed.
Becerra cites a tally of mass shootings by Mayors Against Illegal Guns. "Of the 92 mass killings occurring across the 50 states between 2013 and 2009, only ten occurred in California," Benitez noted. "Of those ten, the criminalization and dispossession requirements of [the LCM ban] would have had no effect on eight of the shootings, and only marginal good effects had it been in effect at the time of the remaining two shootings. On this evidence, [the LCM ban] is not a reasonable fit. It hardly fits at all. It appears on this record to be a haphazard solution likely to have no effect on an exceedingly rare problem."
Becerra also cites the database of mass shootings compiled by Mother Jones. "Of the 98 events over the last 36 years, 17 took place in California," Benitez noted. "This is an average of one event every two years in the most populous state in the nation." All but three of those 17 mass shootings involved multiple firearms, casting doubt on the importance of LCMs. Of the three shooters who brought just one gun, one had a revolver, making magazine size irrelevant; one had a pistol with 10-round magazines; and the third used a pistol with a 15-round magazine that she had legally bought in New Mexico and illegally transported to California.
Two of the California attacks involved LCMs as well as multiple firearms. In one case, the shooter used a pistol with a 30-round magazine that had been stolen in Utah and illegally brought to California. In the other case, Benitez noted, the magazines likewise seem to have been "illegally imported from outside of California." Hence "criminalizing possession of magazines holding any more than 10 rounds likely would not have provided any additional protection."
Once you go beyond Becerra's vague invocation of "horrific mass shootings," the public safety benefit of California's ban on possession of LCMs is not merely speculative; it may well be nonexistent. Since Becerra assigns zero weight to the Second Amendment rights of Californians affected by the ban, that is good enough for him. The 9th Circuit, which has a duty to protect those rights, should demand more.