A divided federal appeals court says California’s ban on large-capacity gun magazines is likely to be upheld — despite the Supreme Court’s rulings expanding the right to own and carry firearms — and can remain in effect while the state challenges a judge’s ruling that found the law unconstitutional.
The state has presented evidence that magazines holding more than 10 cartridges “pose a significant threat to public safety,” the Ninth U.S. Circuit Court of Appeals said in a 7-4 decision late Tuesday. “The public has a compelling interest in promoting public safety, as mass shootings nearly always involve large-capacity magazines.”
Dissenting judges called the majority’s reasoning “absurd” and said the decision “proves yet again that our court treats the Second Amendment as somehow inferior to the others.” Judges in the majority were all appointed by Democratic presidents, and the dissenters were appointed by Republicans.
The law was part of a ballot measure sponsored by then-Lt. Gov. Gavin Newsom and approved by California voters in 2016. U.S. District Judge Roger Benitez of San Diego, who has repeatedly struck down state gun restrictions, overturned the law in 2019 but the Ninth Circuit court quickly reinstated it.
But the Supreme Court ordered the law reconsidered after its June 2022 ruling in the Bruen case that overturned New York’s restrictions on carrying handguns in public. In that ruling, Justice Clarence Thomas said the Second Amendment, which guarantees the right to keep and bear arms, prohibits any limits on gun possession unless they were part of the “nation’s historical tradition of firearms regulation,” dating to the nation’s founding.
The case was then returned to Benitez, who said in his Sept. 22 ruling that there was “no American history or tradition of regulating firearms based on the number of rounds they can shoot, or of regulating the amount of ammunition that can be kept and carried.”
California’s “solution to a few mad men with guns is a law that makes into criminals responsible, law-abiding people wanting larger magazines to protect themselves,” the judge wrote.
He put the decision on hold for 10 days, under standard procedure, to give the state time to appeal and seek a more extended stay. The appeals court granted the state’s request Tuesday in a decision by the same 11-judge, liberal-majority panel that had last considered the case. It was an unorthodox but not unprecedented procedure that drew protests from the court’s conservatives, who held a majority on the three-judge panel that had originally reviewed the case.
In concluding that the state was “likely to succeed” in its appeal of Benitez’s ruling, the court said Tuesday that 10 federal judges in other states had considered challenges to bans on large-capacity gun magazines since last year’s Supreme Court decision, and only one, in Illinois, had blocked enforcement — and that ruling was suspended by a federal appeals court in May.
If the 10-cartridge law is blocked while the state appeals, the court majority said, “California indisputably will face an influx of large-capacity magazines like those used in mass shootings in California and elsewhere.” After Benitez first overturned the law in 2019 and his ruling was allowed to take effect, the judges wrote, “decades of pent-up demand unleashed and Californians bought millions of magazines over ten rounds, essentially buying the nation’s entire stock of them in less than one week.”
Enforcing the ban on large-capacity magazines would still leave Californians free “to purchase and possess a wide range of firearms,” the court said. The majority opinion was issued by Chief Judge Mary Murguia and Judges Sidney Thomas, Susan Graber, Kim Wardlaw, Richard Paez, Marsha Berzon and Andrew Hurwitz.
In dissent, Judge Patrick Bumatay said the Ninth Circuit “has shot down every Second Amendment challenge to a state regulation of firearms — effectively granting a blank check for governments to restrict firearms in any way they pleased.”
“Large-capacity magazines and their analogues are in common use today and were at the time of the Second Amendment’s incorporation,” wrote Bumatay, joined by Judges Sandra Ikuta, Ryan Nelson and Lawrence VanDyke. He said Americans own more than 100 million such weapons today.
Supporters of the law cite studies showing gun owners defending themselves or their families typically fire no more than two shots at their attackers, evidence that the large-capacity magazines are used not for self-defense but for large-scale assaults.
“That’s like saying we don’t ‘use’ our seatbelts whenever our cars don’t crash,” Bumatay retorted. “California’s ban deprives its citizens of the ability to fire a gun more than ten times in self-defense.”
The Ninth Circuit will issue a final ruling after a hearing, scheduled in March, and the case may then return to the Supreme Court along with challenges to similar laws in other states.
While disappointed by the court’s decision, “we are confident that the mandates of the Constitution and the Bruen decision will win in the end,” said Chuck Michel, general counsel and president of the California Rifle & Pistol Association, the National Rifle Association’s state affiliate. “CRPA will continue to defend the rights of gun owners in California all the way to the Supreme Court.”
State Attorney General Rob Bonta said Wednesday his office would “continue to fight for California’s authority to keep our communities safe from weapon enhancements that cause mass casualties.” He said the Supreme Court ruling, while rejecting some restrictions on firearms, “does not create a regulatory straitjacket for states.”
Reach Bob Egelko: begelko@sfchronicle.com; Twitter: @BobEgelko
