The Volokh Conspiracy

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Second Amendment Injunction Against California Ban on Large-Capacity-Magazines Kept in Place by Ninth Circuit

The panel concludes that the district court didn't abuse its discretion in issuing the injunction -- though the decision is non-binding.


In Duncan v. Becerra, a federal district court had issued a preliminary injunction blocking the enforcement of California's ban on magazines that fit more than 10 rounds, pending a full trial on the merits. Today, the Ninth Circuit upheld this, in a 2-1 nonprecedential decision, though one that heavily deferred to the lower court's judgment, and didn't prejudge the final result after a trial is held and the final judgment is issued and appealed.

The majority opinion was written by Judge Randy Smith, joined by visiting District Judge Deborah Batts; the dissent was written by Judge Clifford Wallace. For those who watch such matters, both Judges Smith and Wallace are Republican appointees, as is Judge Roger Benitez, whose decision is being affirmed here; both Judges Smith and Wallace are known as solid conservatives (I can't speak to Judge Benitez). But the deciding vote on the panel, in favor of upholding the lower court's decision protecting Second Amendment rights, was cast by a judge who sits in Manhattan, was appointed by President Clinton, and is said to have been "the nation's first openly LGBT, African-American federal judge."

Here is an excerpt from the majority:

The district court did not abuse its discretion by granting a preliminary injunction on Second Amendment grounds….

The district court did not abuse its discretion by concluding that magazines for a weapon likely fall within the scope of the Second Amendment. First, the district court identified the applicable law, citing[, among other cases,] Jackson v. City & County of San Francisco (9th Cir. 2014). Second, it did not exceed its permissible discretion by concluding, based on those cases, that (1) some part of the Second Amendment right likely includes the right to bear a weapon "that has some reasonable relationship to the preservation or efficiency of a well regulated militia"; and (2) the ammunition for a weapon is similar to the magazine for a weapon, Jackson, 746 F.3d at 967 ("'[T]he right to possess firearms for protection implies a corresponding right' to obtain the bullets necessary to use them." (quoting Ezell v. City of Chicago (7th Cir. 2011)))….

Here, in its intermediate scrutiny analysis, the district court correctly applied the two-part test outlined in Jackson. The district court concluded that a ban on ammunition magazines is not a presumptively lawful regulation and that the prohibition did not have a "historical pedigree." Next, the district court concluded … that section 32310 infringed on the core of the Second Amendment right, but … that intermediate scrutiny was the appropriate scrutiny level. The district court concluded that California had identified four "important" interests and reasoned that the proper question was "whether the dispossession and criminalization components of [section] 32310's ban on firearm magazines holding any more than 10 rounds is a reasonable fit for achieving these important goals." …

The district court did not abuse its discretion by concluding that sections 32310(c) and (d) did not survive intermediate scrutiny. The district court's review of the evidence included numerous judgment calls regarding the quality, type, and reliability of the evidence, as well as repeated credibility determinations. Ultimately, the district court concluded that section 32310 is "not likely to be a reasonable fit." California articulates no actual error made by the district court, but, rather, multiple instances where it disagrees with the district court's conclusion or analysis regarding certain pieces of evidence. This is insufficient to establish that the district court's findings of fact and its application of the legal standard to those facts were "illogical, implausible, or without support in inferences that may be drawn from facts in the record." United States v. Hinkson, 585 F.3d 1247, 1251 (9th Cir. 2009) (en banc). In reviewing the district court's grant of a preliminary injunction, we cannot "re-weigh the evidence and overturn the district court's evidentiary determinations—in effect, to substitute our discretion for that of the district court." …

The district court did not abuse its discretion by granting a preliminary injunction on Takings Clause grounds. First, the district court … outlined the correct legal principles. Second, the district court did not exceed its discretion by concluding (1) that the three options provided in section 32310(d) (surrender, removal, or sale) fundamentally "deprive Plaintiffs not just of the use of their property, but of possession, one of the most essential sticks in the bundle of property rights"; and (2) that California could not use the pol ce power to avoid compensation.

And here's one from Judge Wallace's dissent:

The majority concludes the district court did not abuse its discretion in concluding California's large-capacity magazine (LCM) possession ban did not survive intermediate scrutiny on the ground that the district court's conclusion was based on "numerous judgment calls regarding the quality, type, and reliability of the evidence." The problem, however, is that the district court's "judgment calls" presupposed a much too high evidentiary burden for the state. Under intermediate scrutiny, the question is not whether the state's evidence satisfies the district court's subjective standard of empiricism, but rather whether the state relies on evidence "reasonably believed to be relevant" to substantiate its important interests. So long as the state's evidence "fairly supports" its conclusion that a ban on possession of LCMs would reduce the lethality of gun violence and promote public safety, the ban survives intermediate scrutiny….

The district court is correct that a physical appropriation of personal property gives rise to a per se taking. But here, LCM owners can comply with § 32310 without the state physically appropriating their magazines. Under § 32310(d)(1), an LCM owner may "[r]emove the large-capacity magazine from the state," retaining ownership of the LCM, as well as rights to possess and use the magazines out of state. The district court hypothesized that LCM owners may find removal to be more costly than it is worth, but such speculation, while theoretically relevant to the regulatory takings inquiry, does not turn the compulsory removal of LCMs from the state into a "physical appropriation" by the state.

There's a lot more—the opinion is fairly long for a nonprecedential decision—and you can read it all here. Thanks to Charles Nichols for the news about the decision coming down.