Magazine confiscation splits Third and Ninth Circuits

Analysis and history

California and New Jersey have enacted laws to confiscate firearms magazines holding more than 10 rounds. On Aug. 14, a 2-1 panel of the Ninth Circuit ruled California's confiscation unconstitutional, in Duncan v. Becerra. The Third Circuit, Sept. 1, upheld by 2-1 confiscation in New Jersey in Association of New Jersey Rifle and Pistol Clubs Inc v. Attorney General New Jersey (NJ Rifle II). In combination, Duncan and NJ Rifle II cases provide a good view of the state of the Second Amendment argument today.

Below is a summary and analysis of the opinions, and what might happen next. Because the history of magazines was important in both cases, this post also provides background on magazine history, including photos of historic guns holding at least 16 rounds. Such guns have been around since at least 1580. The Lewis & Clark expedition, 1803-06, carried one. Multishot guns were expensive when the Second Amendment was ratified, in 1791. By 1868, when the Fourteenth Amendment was ratified, they had become broadly affordable.

En banc? On August 28, California Attorney General Xavier Becerra filed a petition for rehearing en banc. All filings in the case are available at the excellent case page of Michel & Associates, the firm that won the case in district court and then before the three-judge panel.

In the past, every Ninth Circuit panel ruling in favor of the Second Amendment was later overturned en banc. That could still happen, but it's no longer certain, thank to President Trump's many judicial appointments. The Ninth Circuit has 27 judges on active status. (Senior status judges do not vote on or participate in en bancs.) A majority vote is needed to take up a case en banc. Here is a flow chart for the procedural steps towards a decision to take a case en banc; and here is a written description of procedures, by Michel & Associates.

Because the Ninth Circuit is so large, an en banc does not include all active judges. According to Ninth Circuit Rule 35-3, an en banc panel always includes the Chief Judge. The present Chief Judge, Sidney Thomas (Clinton, 1996), has been active in effectuating en banc reversals.  For the rest of the en banc panel, ten additional active judges are chosen at random, to create a panel of 11.  Active judges on the Ninth Circuit include 10 appointed by Donald Trump, 7 by Barack Obama, 3 by George W. Bush, and 9 by Bill Clinton. That's a total of 16 appointed by Democrats versus 13 by Republicans.

At present, no announcement has been made about whether the New Jersey plaintiffs will file a petition for en banc review by the Third Circuit. The active judges on the court currently consist of two Clinton appointees, four Obama, four George W. Bush, and four Trump.

Supreme Court: If the panel decision in Duncan survives, or if an en banc Third Circuit reverses the panel, there would be a circuit split. Magazine bans have been upheld by the First, Second, Fourth, Seventh, and D.C. Circuits. In the latter three circuits there were strong dissents. The D.C. dissent, in the Heller II case, was written by then-Judge Kavanaugh.

A circuit split is, in itself, not necessarily sufficient to get the Supreme Court's attention. Even a well-established circuit split may just be left as is. For example: If an adult passes a fingerprint-based background check and safety training, should the person be allowed to carry a concealed handgun, for lawful self-defense? The D.C. and Seventh Circuits have answered "yes." Five other circuits have said that the right to bear arms may be denied unless the applicant shows a special need. (1st, 2d, 3d, 4th, 9th Cirs.) In some states, such as Hawaii, special need is construed to be non-existent.

In May 2020, the Supreme Court denied cert. in ten cases involving the Second Amendment—including a New Jersey case, Rogers v. Grewal, that would have been perfect to examine the right to bear arms.

According to CNN journalist Joan Biskupic, "sources have told CNN that the justices on the right did not believe they could depend on a fifth vote from Roberts." Joan Biskupic, Behind closed doors during one of John Roberts' most surprising years on the Supreme Court, CNN.com, July 27, 2020.

Magazine bans in the Pacific: Hawaii bans handgun magazines over 10 rounds. A proposal to extend the ban to rifles was defeated in the 2020 legislature. If the Duncan panel decision remains good law, the Hawaii handgun magazine ban would have to fall.

Like Hawaii, the Commonwealth of the Northern Mariana Islands is part of the Ninth Circuit. The Commonwealth bans magazines over 10 rounds. That ban too would be invalid under Duncan.

The Third Circuit covers New Jersey, Pennsylvania, Delaware, and the U.S. Virgin Islands. None of the other jurisdictions in the Circuit have magazine bans. (Virgin Islands laws are here.)

Case histories. California in 2000 prohibited the manufacture, import, and sale of so-called "large capacity magazines," defined as magazines holding more than 10 rounds. A 2013 revision forbade purchase or receipt of such magazines. In 2016, the California legislature outlawed mere possession. Magazine owners must remove the magazines from  the  state,  sell  them  to  a  firearms  dealer,  or  surrender  them to law enforcement for destruction. There are exemptions for police, retired police, government use, and film-making. Cal. Penal Code sect. 32310.

In Duncan, the federal district court issued a preliminary injunction against confiscation. That decision was upheld by a 2-1 panel in the Ninth Circuit, which emphasized district judges' broad discretion to issue a preliminary injunction, or not. The panel discussed some of the pro/con evidence that had been introduced thus far; in the majority view, the district judge's weighing and interpretation of the evidence was not an abuse of discretion. 742 F. Appx. 218 (9th Cir. 2018). I filed an Amicus brief in support of upholding the preliminary injunction. I wrote about the Ninth Circuit decision here.

While the preliminary injunction appeal was proceeding, the district court moved the case forward. In March 2019, U.S. District Judge Roger T. Benitez ruled in favor of plaintiffs' motion for summary judgment, and held the confiscation statute unconstitutional. My analysis of the 86 page opinion is here.  Shortly after the district court decision, the California Attorney General sought and a Ninth Circuit motions panel granted a temporary stay. Under the stay, confiscation did not take place, but Californians were not allowed to acquire magazines over 10 rounds.  That status quo remains today, as explained in a FAQ from the California Rifle & Pistol Association.

New Jersey in 1990 enacted a 15 round limit, with a limited form of grandfathering for larger magazines. In 2018, the legislature reduced the limit to 10 rounds, and ordered the confiscation of magazines larger than 10 rounds.

The day the law went into effect, plaintiffs filed the case Association of New Jersey Rifle & Pistol Clubs (NJ Rifle I). The district court denied plaintiffs' motion for a preliminary injunction. On expedited appeal in 2018, the Third Circuit affirmed the denial of the injunction by 2-1. 910 F.3d 106. When the case returned to the district court, the court declared that the Third Circuit panel opinion on the preliminary injunction had conclusively resolved all the legal merits in the case, and so the district court was bound to uphold the confiscation statute.

The district court's decision in NJ Rifle II was appealed. I filed an amicus brief in the case, and wrote about the case here, along with a detailed history of magazines holding more than 10 rounds.

By 2-1, the Third Circuit in agreed that the prior panel decision, on the preliminary injunction, had conclusively resolved all the legal issues, and was binding. Accordingly, the majority did not address constitutional merits.

The dissent in NJ Rifle II disagreed that the preliminary injunction panel had been binding on the merits; the dissent presented arguments why the confiscation violates the Second Amendment under various standards of review.

The Duncan and Association opinions. The Duncan panel decision was written by Judge Kenneth K. Lee (Trump 2019, replacing Stephen Reinhardt), joined by Consuelo M. Callahan (G.W. Bush 2003). Barbara M. G. Lynn, Chief Judge of the Northern District of Texas (Clinton 1999) sat on the panel by designation, and dissented.

The NJ Rifle II panel decision was written by Kent A. Jordan (G.W. Bush 2006) and joined by Jane R. Roth (G.H.W. Bush 2001, senior status 2006).  Judge Paul B. Matey (Trump 2018) dissented.

Here are some key differences and agreements among the judges in the two circuits–with the caveat that the NJ Rifle II majority did not address the merits.

Structure of Review. All circuits except the Eighth employ a two-part test for Second Amendment cases: "(1) whether the law burdens conduct protected by  the  Second  Amendment;  and  (2)  if  so,  what  level  of  scrutiny to apply to the regulation."

The first part of the test asks whether the case involves a Second Amendment issue. In Heller, the Supreme Court said that "dangerous and unusual weapons" are not protected by the Second Amendment. So if someone brought a Second Amendment challenge against a statute the prohibited possession of sarin gas, a court would reject the challenge at part one, because sarin gas is not protected by the Second Amendment.

All the judges in Duncan and NJ Rifle I used the two-part test. Dissenting in NJ Rifle II, Judge Matey wrote that text, history, and tradition was the proper test under Heller, and the that confiscation law plainly failed the test. (For reasons discussed below.) Then-Judge Kavanaugh had used text, history, and tradition in his Heller II dissent. As Judge Matey explained, the two-part test has often devolved into judicial interest-balancing—which is precisely what the Heller majority had rejected, and which Justice Breyer had advocated in his Heller dissent. Like the NJ Rifle II dissent, the district court in Duncan did use the two part-test as one mode of analysis, but criticized it as excessively complicated compared to Heller's "simple test" of text, history, tradition. The Ninth Circuit panel in Duncan briefly noted the criticism, did not disagree with it, but stated that the panel was bound by Ninth Circuit precedent to use the test.

How common are the banned magazines, and how much does that matter? Magazines holding over 10 rounds number in the many tens of millions. They are nearly half of all magazines currently possessed in the United States. Magazines are integral to the operation of a firearm. All judges were in agreement on these facts.

According to some judges, the confiscation of property that is widely owned to exercise constitutional rights should be reviewed under strict scrutiny. According to other judges, magazines over 10 rounds aren't important for lawful defense of self or others. So intermediate scrutiny is the appropriate standard of review.

In terms of objective standards for what is useful for the lawful defense of self and others, it might be noted United States Marshals, who guard the federal courts, often carry .40 caliber Glock pistols. Their standard magazine is 15 rounds.  The standard arm of the New Jersey State Police is a handgun with a 15 round magazine. (NJ Rifle II, at 7).

Pursuant to Heller (which had brushed aside D.C.'s argument that long guns are adequate substitutes for handguns for defensive purposes), the Duncan majority wrote: "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." "Simply  put,  any  law  that  comes  close to categorically banning the possession of arms that are commonly   used   for   self-defense   imposes   a   substantial   burden on the Second Amendment." Moreover:

We would be looking through the wrong end  of  a  sight-glass  if  we  asked  whether  the  government  permits  the  people  to  retain  some  of  the  core  fundamental  and enumerated right. Instead, Heller counsels us to look at whether   the   government   regulation   restricts   the   core   fundamental right from the outset. In other words, we look to  what  a  restriction  takes  away  rather  than  what  it  leaves  behind. …Here,  the  state  effectively  intrudes  into  the  homes  of  law-abiding citizens to forcibly confiscate arms that they rely on for  self-defense…..When  the  government  bans  tens  of  millions  of  protected arms that are staples of self-defense and threatens to confiscate them from the homes of law-abiding citizens, that   imposes   a   substantial   burden   on   core   Second   Amendment rights.

As the Duncan dissent pointed out, magazines over 10 rounds might be common in the United States as a whole, but they are presumably not so common in California, thanks to the 2000 ban on sales. The Duncan majority retorted that a prohibition cannot be its own justification. In the Supreme Court's District of Columbia v. Heller, the District had banned handguns, so lawful handguns were uncommon in the District. The Heller decision looked at how common handguns were in the United States, not just in a single jurisdiction.

Legal History. Heller had stated that certain "longstanding" laws were "presumptively" (but not conclusively) constitutional. As examples, the opinion listed bans on firearms possession by felons and the mentally ill; prohibitions against carrying firearms in schools and government buildings; and regulations on the commercial sale of firearms. The California magazine ban did not fit any of the presumptively constitutional categories.

Magazine bans have been the exception, not the norm, in American history. The current set of magazine bans in some states dates back only to 1990, with a New Jersey statute that banned the acquisition of magazines over 15 rounds.

During alcohol prohibition in the 1920s, a few states enacted firearms capacity laws, but none of those were was sweeping as the current California and New Jersey statutes. Nor was the capacity as low as 10. All of the alcohol prohibition state laws were later repealed, so they are not "longstanding."

The above legal history was presented by the judges who found confiscation unconstitutional, and was not disputed by the other judges.

Not "dangerous and unusual." According to Heller, arms that are "dangerous and unusual" are not protected by the Second Amendment. Magazines over 10 rounds are common, and therefore not unusual. Therefore, they cannot be dangerous and unusual. The Duncan majority cited evidence that there are 115 million such magazines in circulation. Whatever the exact numbers, such magazines number in the many tens of millions in the United States. Like handguns in Heller, magazines over 10 rounds are "commonly  owned  and  typically  possessed  for  lawful  purposes." (Duncan, slightly paraphrasing Heller.) No judge in the United States has ever accepted the claim that magazines over 10 rounds are "dangerous and unusual."

Applying strict scrutiny. The three judges who used strict scrutiny did so straightforwardly. Under strict scrutiny, the government's restriction on a right must be "narrowly  tailored." It must be "the least restrictive means of achieving" the government's interests. Confiscation was just the opposite: "a statewide   blanket ban on possession everywhere and for nearly everyone." (Duncan). As Judge Matey pointed out in NJ Rifle II, the state had produced no evidence that magazine bans save lives, and no justification why a 15 round limit was alright in 1990 but confiscation of everything over 10 was necessary in 2020.

Applying intermediate scrutiny. All judges who addressed the merits examined the statute under intermediate scrutiny, at least as an alternative approach.

Intermediate scrutiny looks for "a  reasonable  fit  between  the  challenged  regulation and the asserted objective."

According to the Duncan majority, a blanket ban for everyone "is excessive and sloppy."

It applies  to  rural  and  urban  areas,  in  places  with  low  crime  rates  and  high  crime  rates,  areas  where  law  enforcement  response  times  may  be  significant,  to  those  who  may  have  high degrees of proficiency in their use for self-defense, and to  vulnerable  groups  who  are  in  the  greatest  need  of  self-defense. The law also prohibits possession outright. And it applies  to  all  firearms,  including  handguns  that  are  the  "quintessential   self-defense   weapon." (citing Heller)…. 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.

Under either intermediate scrutiny or strict scrutiny, the government bears the burden of proof. Yet the California Attorney General's evidence was "thin." A survey of mass shootings in California found that only 3 of 17 involved a magazine over 10 rounds. None of these magazines were legally obtained in California. So the rationale for confiscating all such magazines from legal owners in California was unsupported.

Dissenting in Duncan, Judge Lynn was agnostic about whether magazine confiscation burdened Second Amendment conduct at all (Part 1 of the two-part test.) But she was sure that the confiscation passed intermediate scrutiny. The Attorney General had presented some evidence that magazine bans were effective, and that was sufficient; at least, the case should not have been decided at the summary judgment stage.

In NJ Rifle II, the state had argued that that that time needed to replace an empty magazine (2-4 seconds) allowed some victims of a mass shooting to escape or to counter-attack the shooter. But this was just speculation, replied dissenting Judge Matey. The evidence showed that that large majority of mass shooters use more than one gun. Moreover, the average interval between shots in a mass shooting is more than 2-4 seconds, so a magazine could be switched without missing a beat. The N.J. Attorney General had not met the intermediate scrutiny standard of "reasonable inferences based   on substantial evidence."

Material history: Heller stated that the Second Amendment, like the First Amendment, is not limited to the technology that existed in 1791.

However, as the Ninth Circuit and Judge Matey detailed, firearms holding more than ten rounds predate the Second Amendment by two centuries. No judge in the United States has disputed the accuracy of the history detailed by the Duncan majority and the N.J. Rifle II dissent.

The Duncan opinion provided three pages of gun technology history, from the sixteenth century to the present. Judge Matey's NJ Rifle II dissent also surveyed material history.

Below is a photo of a 16-shot wheel-lock firearm, built sometime before the 1600. (Photo by Michael Ives, for an article in America's 1st Freedom.)

When the user pulled the trigger, all sixteen shots would fire in sequence. By the 1700s, gun designers had figured out how to let the user fire one shot at a time.

At the time the Second Amendment was ratified, the state of the art was the 22 shot Girandoni air rifle. Carried on the Lewis & Clark expedition, it was ballistically equal to a powder gun. (This photo and ones below are used courtesy of NRA Museums.)

Although the Lewis and Clark expedition, consisting of a few dozen people, was often outnumbered, they made a point of demonstrating the Girandoni when encountering a new group. As a result, they were rarely molested. (For details, see the video by NRA Museum Senior Curator Phil Schrier, at the bottom of the NRA Museum page on the Girandoni.)

That is one of the purposes of magazines with adequate ammunition capacity: to allow self-defense by someone who is outnumbered. The Duncan opinion addressed anti-mob utility in detail, explaining how repeating rifles were used to deter lynch mobs during Jim Crow.

Such guns were expensive in the eighteenth, seventeenth, and sixteenth centuries. By 1866, when Congress sent the Fourteenth Amendment to the States for ratification, improved manufacturing techniques (such as interchangeable parts) had made such guns broadly affordable. Examples include the Winchester Model 66, below. The Winchester's  capacity was up to 18 rounds, depending on caliber.

Before the turn of the 20th century, semi-automatic handguns with detachable magazines were being produced. The picture below is a Luger pistol with its optional 32-round snail drum magazine. (Picture of a 1914 exemplar.)

Since then, handguns haven't changed all that much, other than in better quality. Improvements in machine tools mean that parts are better made these days. Plastic polymers were introduced to firearms manufacturing in the 1950s, so many guns today use plastic for some of the parts. (While adhering to federal law, 18 U.S.C. 922(r), that a firearm must have at least 4 1/2 ounces of metal, in the silhouette of a gun.) The invention of double-stack magazines made magazines more compact, so in the Glock 17 pistol below (invented early 1980s), the 17 round magazine fits entirely inside the grip.

For more on magazine history, see my article The History of Firearm Magazines and Magazine Prohibitions, 78 Albany Law Review 849 (2015), and see also Clayton E. Cramer & Joseph Edward Olson, Pistols, Crime, and Public: Safety In Early America, 44 Willamette L. Rev. 699 (2008). Both articles were cited in Duncan, and the first article was cited by the dissent in NJ Rifle II.