Second Amendment Roundup: 9th Circuit Upholds California Magazine Ban (Again)

The third time isn’t the charm.

A lot of water has poured over the dam since Judge Roger Benitez of the Southern District of California issued a preliminary injunction in 2017 against enforcement of California's ban on possession of a magazine holding over ten rounds.  Since then, Duncan v. Becerra has been up and down the ladder from the district court to the Ninth Circuit for multiple panel and en banc decisions and then to the Supreme Court, which sent it back for reconsideration in light of Bruen.  After Judge Benitez found that the ban is invalid under Bruen, the Ninth Circuit went directly en banc and for the third time upheld the ban.

"Third time's the charm" means you finally got something right, but here "third time isn't the charm," as the Ninth Circuit has now tripled-down in its resistance to the Second Amendment and to the Supreme Court's holdings.  On March 20, the en banc court issued two opinions, one upholding the ban on the merits, and the other justifying its circumvention of en banc rehearing rules to allow five senior judges from the previous en banc court to participate again.  I won't discuss that second decision here, but suffice it to say that it leaves the strong odor of the appearance of impropriety.

Authoring the majority's opinion on the merits, Senior Judge Susan Graber wrote: "Large-capacity magazines are optional accessories to firearms, and firearms operate as intended without a large-capacity magazine. A large-capacity magazine is thus an accessory or accoutrement, not an 'Arm' in itself. Possession of a large-capacity magazine therefore falls outside the text of the Second Amendment."  But even if the text "encompasses the possession of [such] an optional accessory," its "especially dangerous uses" negate its protection.

The court conceded that "experts estimate that approximately half of privately owned magazines hold more than ten rounds," but claim – against the judgment of those citizens – that such magazines have "almost no utility in the lawful defense of the home."  And such magazines are not even "arms": "At the time of ratification, a clear distinction was recognized between weapons themselves, referred to as 'arms,' and accessories of weaponry, referred to as 'accoutrements.' Common accoutrements included flint, scabbards, holsters, and ammunition containers such as cartridge cases and cartridge boxes."

The majority doesn't seem to know that a flintlock musket would not fire without a flint, meaning that it is an essential part of an arm protected by the Second Amendment.  And speaking of flintlocks, given the majority's imperative that the more inferior the arm, the better, modern repeating arms that fire smokeless cartridges aren't protected because single-shot flintlock firearms are available.  But Heller explicitly rejected that argument.

While claiming that a magazine that holds over ten rounds is not an arm, the majority asserts that a magazine that holds ten or less is an arm because it "is necessary to the ordinary operation" of the firearm "as intended."  Ordinary operation as intended by whom?  This made up distinction could be used to justify a ban on magazines that hold more than two rounds, as that would still allow the semiautomatic function.

Instead of historical analogues per Bruen, the court calls upon "a more nuanced approach" because the case "implicates both unprecedented societal concerns and dramatic technological changes."  That refers to the fact that firearms have developed technologically (Heller said they are still protected) and they have been used in murders (Heller said that was no reason to ban handgun possession by law-abiding persons).  The court cites the usual historical restrictions on lancegays, gunpowder storage, trap guns, Bowie knives, slungshot, and pistols but none of these were bans on mere possession.

Of course, Bruen's language about unprecedented social change is inapplicable to Second Amendment challenges to arm ban laws.  As explained in Professor Mark Smith's Harvard JLPP article "What Part of 'In Common Use' Don't You Understand?":

Bruen noted that, unlike the relatively straightforward analogues in Heller and in Bruen itself, there might be circumstances in "other cases" in which "unprecedented societal concerns or dramatic technological changes may require a more nuanced approach." But this consideration comes into play only when a court is engaged in examining analogues in non-arms-ban cases for which Heller does not provide the binding rule of decision. Bruen acknowledges that in these "other," non-arms-ban cases some questions may require a "more nuanced" approach to the use of historical analogues than the relatively easy questions presented in Heller and Bruen. Because Bruen's discussion of societal concerns and technological changes applies only in non-arms-ban cases, arguments about alleged societal concerns and technological changes are not relevant in arms-ban cases because Heller provides the relevant legal test.

Heller also held that firearms that are in common use for lawful purposes are protected, but the Duncan court pretends not to know what that means.  Despite having recognized above that half of all magazines hold over ten rounds, it faults plaintiffs for supposedly not explaining "why, under their ownership-statistics theory, 176,000 [machineguns nationwide] is insufficient while the somewhat larger, but unknown, number of large-capacity magazines suffices."  Why change the subject to machineguns when, as Judge Bumatay noted in dissent, "more than a hundred million 'large-capacity' magazines exist in the country today."

As a last hurrah, the court suggests that so many Americans own magazines over ten rounds because manufacturers force them to buy them.  Since such magazines are standard on many models, "a consumer who wants to buy those models has no choice regarding whether the weapon will include a magazine that can fire more than ten rounds without reloading."  In reality, why would a consumer want an inferior magazine when a superior one is available? This assertion by a San Francisco court based in the same state as Hollywood is most odd given the frequency of box office bombs like the recent Snow White Disney movie—the point being that American consumers don't buy products they don't want no matter how much money is spent by business on the product.

Next comes the concurrence of Senior Judge Marsha Berzon, joined by five other judges.  Judge Lawrence VanDyke included a video explanation along with his written opinion, which Judge Berzon found improper because opinions must be written and because Judge VanDyke set himself up as an expert.  More on that below.

Judge Patrick Bumatay, joined by three other judges, dissented.  He takes issue with the term "large-capacity magazines," when in fact "magazines holding more than ten rounds are the most common magazines in the country."  This would make magazines holding over ten rounds "standard capacity" magazines." Judge Bumatay finds the ban to be presumptively unconstitutional for the following three reasons:

First, like triggers and barrels, magazines are "arms," which Bruen says "covers modern instruments that facilitate armed self-defense."  They are not "accoutrements," which an 1810 dictionary defined as "habits, equipage, or furniture, of a soldier, such as belts, pouches, cartridge-boxes, saddles, bridles, &c."

Second, "the majority's faux-Solomonic splitting of magazines based on the number of rounds" concedes that those holding ten or fewer rounds are "arms" entitled to Second Amendment protection, but "as soon as you add one more round—poof—the magazine is no longer 'integral' and it disappears from the Second Amendment's ambit. Call this the 'magic bullet' theory of the Ninth Circuit."

Third, the test is not what's strictly "necessary" for self-defense, but what Americans choose to "facilitate armed self-defense."

Next, Judge Bumatay explains why the "common use" factor is tied not to the level of text, but to that of history.  Nothing in the plain text covers common use.  As Joel Alicea explains in "Bruen Was Right," forthcoming in U. Pa. L. Rev., "the common-use test is not about the semantic meaning of the Second Amendment's plain text."  The issue thus becomes whether, per Bruen, a restriction is "consistent with this Nation's historical tradition," which covers whether a firearm is "dangerous and unusual" or "in common use."  There, California has the burden of disproving "common use."  Not only is it indisputable that the banned magazines are in common use, but also none of the historical restrictions cited by California banned mere possession of the items.

Finally, the majority's "more nuanced approach" and the "straightforward," unnuanced approach amount to "interest balancing 101—this time masquerading as respect for the Second Amendment's historical scope."  Here Judge Bumatay inserted a chart showing how little the majority's language in its pre-Bruen and post-Bruen opinions changed.

Judge Lawrence VanDyke's dissent featured a video in which he dissembled several pistols, explaining how each part is an essential component of the firearm.  As for Judge Berzon's attack on the video as improper, the court has long included links to videos in its opinions.  The video here doesn't introduce new facts and instead "unmasks their invented constitutional test as obviously grounded in a factual fantasy."

While the majority concedes that a trigger is an essential part and thus has some Second Amendment protection, its "test" would support a ban on all but the most dumbed-down triggers:

Even something as essential to the firearm as a manufacturer-issued trigger could be considered an unprotected "accessory" under the majority's view because that particular trigger is not essential to the function of the firearm, as it could be swapped out for one with less effective, and therefore less "dangerous," attributes.

Similarly, according to the majority, "a grip or a sighting system is not a protected component of a firearm because those pieces are 'optional components' not strictly necessary to make the gun fire a round."  Since a comfortable grip and sights make a firearm more useful to a criminal, California could ban most grips and all sights.  It could also ban the semi-automatic mechanism and allow citizens to possess only a revolver, a bolt-action, or a single-shot firearm.

The majority's arbitrary conception of what is a "standard" firearm, Judge VanDyke continues, assumes that "there is some Platonic ideal of a firearm, which I guess makes sense if you think judges are the Platonic Guardians of the Second Amendment."  And its historical test is at such a high level of generality that the restrictions struck down in Heller and Bruen would survive, because "lots of historical laws have prohibited dangerous things," and "even the jankiest firearm in the hands of the wrong person is 'especially dangerous.'" (See Professor Smith's Harvard JLPP article "Third Rails of Second Amendment Jurisprudence" concerning how courts can avoid deriving historical principles at too high of a level.)

Judge VanDyke concludes that the Ninth Circuit has "established an even more government-friendly version of the very interest balancing the Supreme Court rejected in Bruen" and the court "once again improves its undefeated record against the Second Amendment."

That won't change unless the Supreme Court reins in the courts of appeal.  For the tenth time, the Court recently relisted two Second Amendment cases for its conference on Friday April 4.  They include Ocean State Tactical v. Rhode Island, which concerns Rhode Island's magazine ban, and Snope v. Brown, which concerns Maryland's ban on semiautomatic rifles.

The magazine issue is otherwise coming to a head.  On February 26, a cert petition was filed in Hanson v. District of Columbia challenging D.C.'s magazine ban.  West Virginia and 25 other states filed an amici curiae brief in support.

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There is a growing trend for courts to uphold restrictions on the basis that the item in question is not an "arm" at all.  Duncan does that by claiming that a magazine that holds over ten rounds is not a component of an "arm."  A variation of this burden flip is the assertion that to be an "arm," it must be in common use.

Heller stated that "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms," and Bruen made clear that the government must show by historical analogues that an item is "dangerous and unusual," which disproves common use.

A recent example of the latter trend is Calce v. City of New York (S.D. N.Y. 2025), which held that plaintiffs did not provide data for the court to conduct a "statistical inquiry" to determine if stun guns and tasers are in common use.  No basis thus existed to find that they are "presumptively protected by the Second Amendment at Step 1 of the analysis, and the Court does not proceed to Step 2." Yet as Heller made clear, it is not the plaintiff's burden to establish "common use" but the government's burden to show an "arm" is not in common use, given that the test is derived from the historical tradition of regulating "dangerous and unusual weapons."