Duncan V. Becerra: A Win In The 9th Circuit

A three judge panel of the 9th Circuit Court of Appeals handed down a win today for the Second Amendment. In a 2-1 decision, the court found that the California ban on standard capacity magazines failed to pass the two part test and thus contravened the protections of the Second Amendment. They affirmed Judge Roger Benitez’s original ruling in Duncan v. Becerra. His ruling had been partially stayed pending this appeal.

As with all Second Amendment wins in the 9th Circuit, I fully expect that this case will go to an en banc hearing. It will either be granted on the request of one of the other judges sua sponte or on appeal by California. In the meantime, this is a win to be savored.

Below is a synopsis of the court’s 81 page opinion and dissent. The opinion was written by Judge Kenneth Lee and was joined by Judge Consuelo Callahan. Chief Judge Barbara Lynn of the Northern District of Texas, sitting by designation, was the dissenter. Judge Lee, a native of South Korea, was appointed by President Trump to fill the seat left open by the death of liberal icon Judge Stephen Reinhardt.

The panel affirmed the district court’s summary judgment in favor of plaintiffs challenging California Government Code § 31310, which bans possession of large-capacity magazines (“LCMs”) that hold more than ten rounds of ammunition; and held that the ban violated the Second Amendment.


The Ninth Circuit employs a two-prong inquiry to determine whether firearm regulations violate the Second Amendment: (1) whether the law burdens conduct protected by the Second Amendment; and (2) if so, what level of scrutiny to apply to the regulation. United states v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013)

The panel held that under the first prong of the test, Cal. Penal Code § 32310 burdened protected conduct. First, the panel held that firearm magazines are protected arms under the Second Amendment. Second, the panel held that LCMs are commonly owned and typically used for lawful purposes, and are not “unusual arms” that would fall outside the scope of the Second Amendment. Third, the panel held that LCM prohibitions are not longstanding regulations and do not enjoy a presumption of lawfulness. Fourth, the panel held that there was no persuasive historical evidence in the record showing LCM possession fell outside the ambit of Second Amendment protection.


Proceeding to prong two of the inquiry, the panel held that strict scrutiny was the appropriate standard to apply. First, the panel held that Cal. Penal Code § 32310 struck at the core right of law-abiding citizens to self-defend by banning LCM possession within the home. Second, the panel held that Section 32310’s near-categorical ban of LCMs substantially burdened core Second Amendment rights. Third, the panel held that decisions in other circuits were distinguishable. Fourth, the panel held that this circuit’s decision in Fyock v. City of Sunnyvale, 779 F.3d 991 (9th Cir. 2015), did not obligate the panel to apply intermediate scrutiny.


The panel held that Cal. Penal Code § 32310 did not survive strict scrutiny review. First, the panel held that the state interests advanced here were compelling: preventing and mitigating gun violence. Second, the panel held that Section 32310 was not narrowly tailored to achieve the compelling state interests it purported to serve because the state’s chosen method – a statewide blanket ban on possession everywhere and for nearly everyone – was not the least restrictive means of achieving the compelling interests.


The panel held that even if intermediate scrutiny were to apply, Cal. Penal Code § 32310 would still fail. The panel held that while the interests expressed by the state qualified as “important,” the means chosen to advance those interests were not substantially related to their service.


Chief District Judge Lynn dissented, and would reverse the district court’s grant of summary judgment. Judge Lynn wrote that the majority opinion conflicted with this Circuit’s precedent in Fyock, and with decisions in all the six sister Circuits that addressed the Second Amendment issue presented here. Judge Lynn would hold that intermediate scrutiny applies, and Cal. Penal Code § 32310 satisfies that standard.



3 thoughts on “Duncan V. Becerra: A Win In The 9th Circuit”

  1. What I don’t understand is why the courts are giving so much deference to the state. A judge says it’s unconstitutional, then stays his own opinion so the state has a chance to appeal. The appeals court agrees the law is unconstitutional, but the stay is not lifted so the people can actually buy magazines because the state may ask the whole court if they really-really mean it this time.

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