Duncan v. Bonta (United States Court of Appeals for the Ninth Circuit, Case No. 19-55376)
November 30, 2021
When Justice Brandeis observed that states are the laboratories of democracy, he didn’t mean that states can experiment with the People’s rights. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). But that’s what California does here. The state bans magazines that can carry over ten rounds — a firearm component with a long historical lineage commonly used by Americans for lawful purposes, like self-defense. Indeed, these magazines are lawfully owned by millions of people nationwide and come standard on the most popular firearms sold today. If California’s law applied nationwide, it would require confiscating half of all existing firearms magazines in this country. California nevertheless prevents its citizens from owning these magazines. But the Constitution protects the right of law-abiding citizens to keep and bear arms typically possessed for lawful purposes. On en banc review, we should have struck down the law.
Contrary to the Second Amendment, however, our court upholds California’s sweeping ban on so-called large-capacity magazines.
Footnote 1: We use the term “large-capacity magazine” for consistency with the majority but note that magazines with the capacity to accept more than ten rounds of ammunition are standard issue for many firearms. Thus, we would be more correct to refer to California’s ban on “standard-capacity magazines.”
It can’t be because these magazines lack constitutional protection. The majority assumes they are. And it can’t be because the ban is longstanding. California’s law is of recent vintage. Rather, the law survives because the majority has decided that the costs of enforcing the Second Amendment’s promise are too high. The majority achieves this result by resorting to the tiers-of-scrutiny approach adopted by this court years ago. Under that balancing test, the government can infringe on a fundamental right so long as the regulation is a “reasonable fit” with the government’s objective.
In reality, this tiers-of-scrutiny approach functions as nothing more than a black box used by judges to uphold favored laws and strike down disfavored ones. But that is not our role. While we acknowledge that California asserts a public safety interest, we cannot bend the law to acquiesce to a policy that contravenes the clear decision made by the American people when they ratified the Second Amendment.
In District of Columbia v. Heller, 554 U.S. 570, 595 (2008), the Supreme Court held that the Second Amendment confers “an individual right to keep and bear arms.” This watershed case provided clear guidance to lower courts on the proper analytical framework for adjudicating the scope of the Second Amendment right. That approach requires an extensive analysis of the text, tradition, and history of the Second Amendment. Our court should have dispensed with our interest-balancing approach and hewed to what the Supreme Court told us to do. Under that approach, the outcome is clear. Firearms and magazines capable of firing more than ten rounds have existed since before the Founding of the nation. They enjoyed widespread use throughout the nineteenth and twentieth centuries. They number in the millions in the country today. With no longstanding prohibitions against them, large-capacity magazines are thus entitled to the Second Amendment’s protection. It’s the People’s decision in ratifying the Constitution, not California’s, that dictates the result here.
For these reasons, we respectfully dissent.
In California, a “large-capacity magazine” is “any ammunition feeding device with the capacity to accept more than 10 rounds.” Cal. Penal Code § 16740. Since 2000, California has prohibited the manufacture, importation, and sale of large-capacity magazines. See Act of July 19, 1999, ch. 129, 1999 Cal. Stat. §§ 3, 3.5. Thirteen years later, the California legislature prohibited the receipt and purchase of large-capacity magazines. See 2013 Cal. Stat. 5299, § 1. And three years after that, the California legislature made it unlawful to possess large-capacity magazines. See 2016 Cal. Stat. 1549, § 1; Cal. Penal Code § 32310(a), (c). Shortly after, California voters adopted Proposition 63, which strengthened California’s magazine ban by making possession punishable by up to one year in prison. See Cal. Penal Code § 32310(c). There’s no grandfather clause — the law applies no matter when or how the magazine was acquired. See id.
Today, California citizens who possess large-capacity magazines have four options: remove the magazine from the state; sell the magazine to a licensed firearms dealer; surrender the magazine to a law enforcement agency for destruction; or permanently alter the magazine so that it cannot accept more than ten rounds. Id. §§ 16740(a), 32310(d).
The question before us is whether California’s magazine ban violates the Second Amendment. It does.
The Second Amendment commands that the “right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. Amend. II. At the outset, it’s worth emphasis that the Second Amendment guarantees a pre-existing, fundamental, natural right. That’s because it is necessary to “protect and maintain inviolate the three great and primary rights of personal security, personal liberty, and private property.” 1 William Blackstone, Commentaries on the Laws of England, *136, *139. In other words, the right is among “that residuum of human rights, which is not intended to be given up to society, and which indeed is not necessary to be given for any good social purpose.”
Footnote 2: Letter from Richard Henry Lee to Governor Edmund Randolph (Oct. 16, 1787).
The Second Amendment’s fundamental nature follows from its close connection to the right of self-defense. As John Adams explained:
Resistance to sudden violence, for the preservation not only of my person, my limbs and life, but of my property, is an indisputable right of nature which I have never surrendered to the public by the compact of society, and which perhaps, I could not surrender if I would.
Footnote 3: Boston Gazette, Sept. 5, 1763, reprinted in 3 The Works of John Adams 438 (Charles F. Adams ed., 1851), in Anthony J. Dennis, Clearing the Smoke from the Right to Bear Arms and the Second Amendment, 29 Akron L. Rev. 57, 73 (1995).
Judge George Thatcher, a member of the First United States Congress, contrasted rights conferred by law with those that are natural; the right of “keeping and bearing arms” belonged in the latter category as it is “coeval with man.”
Footnote 4: Scribble-Scrabble, Cumberland Gazette, Jan. 26, 1787, reprinted in Firearms Law and the Second Amendment: Regulation, Rights, and Policy, Johnson et al. 300 (2d ed. 2017). Scribble-Scrabble was the pen name of George Thatcher. See Patrick J. Charles, Scribble Scrabble, the Second Amendment, and Historical Guideposts: A Short Reply to Lawrence Rosenthal and Joyce Lee Malcolm, 105 Nw. U. L. Rev. 1821, 1825 (2011).
The fundamental nature of the Second Amendment has been well recognized by the Supreme Court. At its core, the Court held, the Second Amendment protects the “right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Heller, 554 U.S. at 635. The protection is an individual one and extends to all bearable arms that are typically possessed by law-abiding citizens for lawful purposes, like self-defense. Id. at 582, 595, 625. Moreover, the right is so “fundamental” and “deeply rooted in this Nation’s history and tradition,” that it is “fully applicable to the States.” McDonald v. City of Chicago, 561 U.S. 742, 750, 767 (2010) (simplified).
From this background, we turn to the Second Amendment’s application to this case. From the start, the majority misses the mark, the most fundamental error being the use of an improper framework to analyze Second Amendment challenges. Once again, our court applies a two-step, tiers-of-scrutiny approach. But that approach is inconsistent with what the Second Amendment commands and what the Supreme Court requires. On en banc review, we should have scrapped this regime and adopted what the Supreme Court tells us is the proper analytical framework — one that looks to the text, history, and tradition of the Second Amendment.
Under that analytical framework, California’s ban on large-capacity magazines cannot withstand a Second Amendment challenge. Large-capacity magazines are bearable arms that are commonly owned for lawful purposes, and not subject to longstanding regulatory measures. This is not a close question. It flows directly from Heller.
Before turning to what Heller did, it’s important to understand what it did not do. Heller did not give lower courts license to pursue their own conception of the Second Amendment guarantee. While Heller did not answer all questions for all times, as discussed below, it provided a framework for analyzing Second Amendment issues without resorting to the familiar tiers-of-scrutiny approach. Instead of recognizing this, lower courts, including our own, routinely narrow Heller and fill the supposed vacuum with their own ahistorical and atextual balancing regime. This contradicts Heller’s express instructions.
The majority continues this error by reaffirming our court’s two-step Second Amendment inquiry. Maj. Op. 23– 24. Under that test, we ask two questions: (1) “if the challenged law affects conduct that is protected by the Second Amendment”; and if so, (2) we “choose and apply an appropriate level of scrutiny.” Id. (simplified).
The step one inquiry often pays lip service to Heller: it asks whether the law “burdens conduct protected by the Second Amendment,” United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013), “based on a historical understanding of the scope of the [Second Amendment] right,” Jackson v. City & Cnty. Of San Francisco, 746 F.3d 953, 960 (9th Cir. 2014) (simplified). To determine whether the challenged law falls outside the scope of the Amendment, we look to whether “persuasive historical evidence show[s] that the regulation [at issue] does not impinge on the Second Amendment right as it was historically understood.” Silvester v. Harris, 843 F.3d 816, 821 (9th Cir. 2016). Thus, the first step asks if the conduct is protected by the Second Amendment as a historical matter.
Footnote 5: The majority does not bother to do the hard work of examining the historical record and merely assumes that the magazine ban infringes on the Second Amendment. Such an analytical step blinds the majority to the long historical tradition of weapons capable of firing more than ten rounds in this country and the exceptional nature of California’s ban here. Cf. Mai v. United States, 974 F.3d 1082, 1091 (Bumatay, J., dissenting from the denial of reh’g en banc) (“By punting the analysis of the historical scope of the Second Amendment …, we let false assumptions cloud our judgment and distort our precedent even further from the original understanding of the Constitution.”).
It is at step two where our court goes astray. Instead of ending the inquiry based on history and tradition, our court layers on a tier of scrutiny — an exercise fraught with subjective decision-making. In picking the appropriate tier, we operate a “sliding scale” depending on the severity of the infringement. Id. Practically speaking, that means putting a thumb on that scale for “intermediate scrutiny.” In over a dozen post-Heller Second Amendment cases, we have never adopted strict scrutiny for any regulation.
Footnote 6: See Young v. Hawaii, 992 F.3d 765, 773 (9th Cir. 2021) (en banc); United States v. Singh, 979 F.3d 697, 725 (9th Cir. 2020); Mai v. United States, 952 F.3d 1106, 1115 (9th Cir. 2020); United States v. Torres, 911 F.3d 1253, 1263 (9th Cir. 2019); Pena v. Lindley, 898 F.3d 969, 979 (9th Cir. 2018); Teixeira v. County of Alameda, 873 F.3d 670, 678 (9th Cir. 2017) (en banc); Mahoney v. Sessions, 871 F.3d 873, 881 (9th Cir. 2017); Bauer v. Becerra, 858 F.3d 1216, 1221 (9th Cir. 2017); Fisher v. Kealoha, 855 F.3d 1067, 1070–71 (9th Cir. 2017); Fortson v. L.A. City Attorney’s Office, 852 F.3d 1190, 1194 (9th Cir. 2017); Silvester, 843 F.3d at 827; Wilson v. Lynch, 835 F.3d 1083, 1093 (9th Cir. 2016); Peruta v. Cnty. of San Diego, 824 F.3d 919, 942 (9th Cir. 2016) (en banc); Fyock v. City of Sunnyvale, 779 F.3d 991, 999 (9th Cir. 2015); Jackson, 746 F.3d at 965; Chovan, 735 F.3d at 1138.
That’s because our court interprets the sliding scale to require intermediate scrutiny so long as there are “alternative channels for self-defense.” Jackson, 746 F.3d at 961.
Footnote 7: Once again, our court fails to pay attention to Heller with this type of analysis. Heller expressly says, “[i]t is no answer to say … that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed.” 554 U.S. at 629; see also Caetano v. Massachusetts, 577 U.S. 411, 421 (2016) (Alito, J., concurring) (“But the right to bear other weapons is ‘no answer’ to a ban on the possession of protected arms.”). Likewise, it is no answer to say — as Judge Graber’s concurrence explicitly does — that citizens may defend their homes during an attack with multiple firearms or magazines or by reloading their firearms instead of using a large-capacity magazine. Graber Concurrence 54–55. While the concurrence calls the burden of carrying multiple firearms or magazines and the delay of reloading magazines mere “inconvenience[s],” id., the record shows that such alternatives impair the ability of citizens to defend themselves. Stated simply, the unpredictable and sudden nature of violent attacks may preclude the effective use of multiple firearms and magazines and the ability to reload weapons. Limiting self-defense to these alternate means would disadvantage law-abiding citizens, who may not have proper training to reload firearms or gather multiple armaments under the trauma and stress of a violent attack.
What’s more, we often employ a toothless “intermediate scrutiny,” upholding the regulation if it “reasonabl[y] fit[s]” the state’s asserted public-safety objective.
Footnote 8: The “reasonable fit” modification to intermediate scrutiny dispenses with the requirement of narrow tailoring. See, e.g., Vivid Entertainment, LLC v. Fielding, 774 F.3d 566, 580 (9th Cir. 2014) (holding that a statute must be “narrowly tailored” to survive intermediate scrutiny). We appropriated the “reasonable fit” standard from “a specific, and very different context” under the First Amendment: “facially neutral regulations that incidentally burden freedom of speech in a way that is no greater than is essential.” Mai, 974 F.3d at 1101 (VanDyke, J., dissenting from the denial of reh’g en banc). But tailoring ensures that the government’s asserted interest is its “genuine motivation” — that “[t]here is only one goal the classification is likely to fit … and that is the goal the legislators actually had in mind.” Brief for J. Joel Alicea as Amicus Curiae Supporting Petitioners at 20, N.Y. State Rifle & Pistol Ass’n v. Bruen, (July 20, 2021) (No. 20-843) (quoting John Hart Ely, Democracy and Distrust 146 (1980)). Dispensing with narrow tailoring thus abdicates our responsibility to test the government’s true interest in a regulation.
Maj. Op. 15. In other words, so long as a firearms regulation aims to achieve a conceivably wise policy measure, the Second Amendment won’t stand in its way. In effect, this means we simply give a blank check to lawmakers to infringe on the Second Amendment right. Indeed, post-Heller, we have never struck down a single firearms regulation.
Footnote 9: See footnote 6.
All this interest balancing is in blatant disregard of the Court’s instructions. Nowhere in Heller or McDonald did the Supreme Court pick a tier of scrutiny for Second Amendment challenges. Nor did the Court compare the relative costs of firearms regulations to their potential public-safety benefits, adopt a sliding scale, look at alternative channels of self-defense, or see if there was a reasonable fit between the regulation and the state’s objective. The absence of these balancing tools was not accidental. The Court made clear that such judicial balancing is simply incompatible with the guarantees of a fundamental right. Time and time again, the Supreme Court expressly rejected the means-end balancing approach inherent in the two-step test applied by our court. We should have followed their directions.
First was Heller. In that case, the Court soundly rejected any sort of interest-balancing in assessing a handgun ban. In dissent, Justice Breyer criticized the majority for declining to establish a level of scrutiny to evaluate Second Amendment restrictions. He then proposed adopting an “interest-balancing inquiry” for Second Amendment questions, weighing the “salutary effects” of a regulation against its “burdens.” Heller, 554 U.S. at 689–90 (Breyer, J., dissenting). In response, the Court bristled at the suggestion that a constitutional right could hinge on the cost-benefit analysis of unelected judges:
We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government — even the Third Branch of Government — the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.
Heller, 554 U.S. at 634 (majority opinion). Rather than entertaining what tier of scrutiny should apply to the Second Amendment, the Court noted that the Amendment itself was “the very product of an interest balancing by the people,” and that courts are simply not permitted to “conduct [that balancing] anew.” Id. at 635 (emphasis in original). In sum, Heller struck down the handgun ban at issue because those firearms are commonly used by law-abiding citizens for lawful purposes, not because the ban failed intermediate scrutiny.
Footnote 10: The majority asserts that Heller rejected Justice Breyer’s “interest balancing inquiry” — not because of the Court’s disapproval of tiers of scrutiny — but because Justice Breyer did not use the precise words “intermediate scrutiny.” Maj. Op. 25–26. We do not think the Court would be so focused on form over substance to reject Justice Breyer’s argument because of nomenclature. Indeed, the type of inquiry the majority engages in — such as weighing the ban’s effect on mass shooters, id. at 46 — is exactly the kind of balancing between “government public-safety concerns” and Second Amendment interests that Justice Breyer called for, see Heller, 554 U.S. at 689 (Breyer, J., dissenting).
The majority also relies on Heller’s passing reference to D.C.’s handgun ban failing “under any standard of scrutiny” as license to engage in the judicial-interest balancing adopted by this court. Maj. Op. 25. But that misreads the statement. As then-Judge Kavanaugh noted, “that [reference] was more of a gilding-the-lily observation about the extreme nature of D.C.’s law — and appears to have been a pointed comment that the dissenters should have found D.C.’s law unconstitutional even under their own suggested balancing approach — than a statement that courts may or should apply strict or intermediate scrutiny in Second Amendment cases.” Heller v. District of Columbia (“Heller II”), 670 F.3d 1244, 1277–78 (D.C. Cir. 2011) (Kavanaugh, J., dissenting).
Two years later came McDonald. There, the Court was again emphatic that the Second Amendment right was not subject to “interest balancing.” 561 U.S. at 785. McDonald reiterated the Court’s “express reject[ion]” of “the argument that the scope of the Second Amendment right should be determined by judicial interest balancing.” Id. (citing Heller, 554 U.S. at 633–35). The Court explicitly rejected some state courts’ approach to permit balancing tests for firearm rights. Id. The Court reasoned that the Fourteenth Amendment did not apply “only a watered-down, subjective version of the individual guarantees of the Bill of Rights” against the States. Id. (simplified).
Once again responding to Justice Breyer, McDonald disclaimed the notion that the Amendment is to be assessed by calculating its benefits and costs. Justice Breyer, in dissent, noted that incorporating the Second Amendment against the States would require judges to face “complex empirically based questions,” such as a gun regulation’s impact on murder rates, which are better left to legislatures. Id. at 922–26 (Breyer, J., dissenting). The Court answered that Justice Breyer was “incorrect that incorporation will require judges to assess the costs and benefits of firearms restrictions and thus to make difficult empirical judgments in an area in which they lack expertise.” Id. at 790–91. On the contrary, rejecting any “interest-balancing test” for the Second Amendment right obviates the courts from making those “difficult empirical judgments.” Id. (citing Heller, 554 U.S. at 634).
Most recently, demonstrated the Court’s application of Heller and, unsurprisingly, that case did not involve interest balancing. See 577 U.S. 411. Caetano viewed Heller as announcing rules for determining the constitutionality of firearms regulations and applied these rules to a state ban on stun guns. See 577 U.S. at 411. There, the Court drew three takeaways from Heller: (1) the Second Amendment protects arms “not in existence at the time of the founding”; (2) a weapon not “in common use at the time of the Second Amendment’s enactment” does not render it “unusual”; and (3) the Second Amendment protects more than “only those weapons useful in warfare.” Id. at 411–12 (simplified). The Court held the state court’s reasoning contradicted Heller’s “clear statement[s]” and vacated its decision. Id. at 412. Notably, Caetano did not adopt a tier of scrutiny or otherwise engage in interest balancing. It certainly did not ask whether the stun gun ban was a “reasonable fit” with the state’s public safety objective.
That the Court has uniformly rejected “interest balancing” when it comes to the Second Amendment is nothing new. Then-Judge Kavanaugh understood as much shortly after Heller and McDonald were decided. As he explained, the Supreme Court “set forth fairly precise guidance to govern” Second Amendment challenges. Heller II, 670 F.3d at 1271 (Kavanaugh, J., dissenting). “Heller and McDonald,” he said, “leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.” Id. More recently, Justice Kavanaugh has articulated his “concern that some federal and state courts may not be properly applying Heller and McDonald.” N.Y. State Rifle & Pistol Ass’n v. City of New York, 140 S. Ct. 1525, 1527 (2020) (Kavanaugh, J., concurring).
Other justices have similarly questioned the continued use of tiers of scrutiny by lower courts. Justice Thomas, for instance, observed that many courts of appeals “have resisted [the Court’s] decisions in Heller and McDonald” and sought to “minimize [Heller’s] framework.” Rogers v. Grewal, 140 S. Ct. 1865, 1866 (2020) (Thomas, J., dissenting from the denial of certiorari) (simplified). He emphasized that Heller “explicitly rejected the invitation to evaluate Second Amendment challenges under an ‘interest-balancing inquiry, with the interests protected by the Second Amendment on one side and the governmental public-safety concerns on the other.’” Id. at 1867 (simplified).
Rogers wasn’t the first time that Justice Thomas sounded the alarm on this issue. In Friedman v. City of Highland Park, Justice Thomas reiterated that the Court “stressed that the very enumeration of the right takes out of the hands of government — even the Third Branch of Government — the power to decide on a case-by-case basis whether the right is really worth insisting upon.” 136 S. Ct. 447, 448 (2015) (Thomas, J., dissenting from denial of certiorari) (simplified); see also Silvester v. Becerra, 138 S. Ct. 945, 948 (2018) (Thomas, J., dissenting from the denial of certiorari) (explaining that Heller rejected “weigh[ing] a law’s burdens on Second Amendment rights against the governmental interests it promotes”); Jackson v. City & Cnty. of San Francisco, 135 S. Ct. 2799, 2802 (2015) (Thomas, J., dissenting from the denial of certiorari). Moreover, Justice Thomas has criticized tiers-of-scrutiny jurisprudence in general as an atextual and ahistorical reading of the Constitution. See Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2327–28 (2016) (Thomas, J., dissenting) (characterizing the use of “made-up tests” to “displace longstanding national traditions as the primary determinant of what the Constitution means” as illegitimate (simplified).)
Footnote 11: For most of this country’s history, judges viewed their role not as “weighing or accommodating competing public and private interests,” but instead employing “boundary-defining techniques” which made their job a more “objective, quasi-scientific one.” Richard Fallon, Strict Judicial Scrutiny, 54 UCLA L. Rev. 1267, 1274, 1285–86 (2007) (simplified). As Judge Berzon’s concurrence demonstrates, the tiers-of-scrutiny approach is of recent vintage. Berzon Concurrence 90–91. Judge Berzon, thus, confirms Professor Fallon’s view that strict scrutiny (and its rational-basis and intermediate-scrutiny cousins) have no “foundation in the Constitution’s original understanding.” Fallon, supra, at 1268.
Justices Alito and Gorsuch have also taken issue with how lower courts are applying Heller. After determining that the lower court improperly upheld a New York City handgun ordinance under “heightened scrutiny,” Justice Alito, joined by Justice Gorsuch, commented, “[w]e are told that the mode of review in this case is representative of the way Heller has been treated in the lower courts. If that is true, there is cause for concern.” N.Y. State Rifle & Pistol Ass’n, 140 S. Ct. at 1544 (Alito, J., dissenting).
A chorus of circuit judges from across the country has also rejected the tiers-of-scrutiny approach adopted by this and other courts. See, e.g., Mai, 974 F.3d at 1083 (Collins, J., dissenting from the denial of reh’g en banc); id. at 1097 (VanDyke, J., dissenting from the denial of reh’g en banc); Ass’n of N.J. Rifle & Pistol Clubs v. Att’y Gen. N.J., 910 F.3d 106, 127 (3d Cir. 2018) (Bibas, J. dissenting); Mance v. Sessions, 896 F.3d 390, 394 (5th Cir. 2018) (Elrod, J., joined by Jones, Smith, Willett, Ho, Duncan, and Engelhardt, JJ., dissenting from the denial of reh’g en banc); Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, 702 (6th Cir. 2016) (Batchelder, J., concurring); id. at 710 (Sutton, J., concurring).
We join this chorus. We cannot “square the type of means-ends weighing of a government regulation inherent in the tiers-of-scrutiny analysis with Heller’s directive that a core constitutional protection should not be subjected to a freestanding interest-balancing approach.” Mai, 974 F.3d at 1086–87 (Bumatay, J., dissenting from the denial of reh’g en banc) (simplified)). That judges are not empowered to recalibrate the rights owed to the people has been stated again and again:
Our duty as unelected and unaccountable judges is to defer to the view of the people who ratified the Second Amendment, which is itself the “very product of an interest balancing by the people.” Heller, 554 U.S. at 635. By ignoring the balance already struck by the people, and instead subjecting enumerated rights, like the Second Amendment, to our own judicial balancing, “we do violence to the [constitutional] design.” Crawford v. Washington, 541 U.S. 36, 67–68 (2004).
Id. at 1087. After all, “[t]he People, through ratification, have already weighed the policy tradeoffs that constitutional rights entail.” Luis v. United States, 136 S. Ct. 1083, 1101 (2016) (Thomas, J., concurring).
Despite these warnings, our court charges ahead in applying the two-step-to-intermediate-scrutiny approach. Application of “intermediate scrutiny” to the large-capacity magazine ban, however, engages in exactly the sort of “costs and benefits” analysis the Court said we should not be doing. McDonald, 561 U.S. at 790–91. This approach, moreover, is nothing more than a judicial sleight-of-hand, allowing courts to feign respect to the right to keep and bear arms while “rarely ever actually using it to strike down a law.”
Footnote 12: Allen Rostron, Justice Breyer’s Triumph in the Third Battle over the Second Amendment, 80 Geo. Wash. L. Rev. 703, 757 (2012) (explaining that lower courts consistently apply intermediate scrutiny in line with Justice Breyer’s dissent despite Heller’s rejection of that approach). Even if we were to ignore Heller and continue to follow our own misguided precedent, the majority still gets it wrong. As Judge Lee ably pointed out, strict scrutiny should apply because § 32310’s categorical ban substantially burdens “the core right of law-abiding citizens to defend hearth and home.” Duncan v. Becerra, 970 F.3d 1133, 1152 (9th Cir. 2020), reh’g en banc granted, opinion vacated, 988 F.3d 1209 (9th Cir. 2021). As the Supreme Court noted, laws that impinge on a “fundamental right explicitly … protected by the constitution” require “strict judicial scrutiny.” San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 17 (1973); Clark v. Jeter, 486 U.S. 456, 461 (1988) (“[C]lassifications affecting fundamental rights are given the most exacting scrutiny.” (simplified)).
Intermediate scrutiny, we fear, is just window dressing for judicial policymaking. Favored policies may be easily supported by cherry-picked data under the tier’s black box regime. But whether we personally agree with California’s firearms regulations, that is no excuse to disregard the Court’s instructions and develop a balancing test for a fundamental right. Our job is not to give effect to our own will, but instead to “the will of the law” — in this case, the Constitution. Osborn v. Bank of U.S., 22 U.S. 738, 866 (1824) (Marshall, C.J.).
Of course, this would not be the first time that our court struggled mightily to understand the Supreme Court’s directions. See, e.g., Tandon v. Newsom, 141 S. Ct. 1294, 1297 (2021) (per curiam) (“This is the fifth time the Court has summarily rejected the Ninth Circuit’s analysis of California’s COVID restrictions on religious exercise.”). We have done so again here, and it is a shame.
Contrary to the majority’s reiteration of a tiers-of-scrutiny, sliding scale approach, Heller commands that we interpret the scope of the Second Amendment right in light of its text, history, and tradition. That’s because constitutional rights “are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.” Heller, 554 U.S. at 634–35.
Heller announced a straightforward analytical framework that we are not free to ignore: the Second Amendment encompasses the “right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Id. at 635. As a “prima facie” matter, that right extends to “all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” Id. at 582. Any regulation that infringes on the exercise of this right implicates conduct protected by the Second Amendment.
But because the Second Amendment right is “not unlimited,” id. at 595, regulations that are “historical[ly] justifi[ed]” do not violate the right, id. at 635. Primarily, the “Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes,” such as M-16s and short-barreled shotguns. Id. at 625. In making this inquiry, we look to the “historical tradition,” which has excluded “dangerous and unusual” weapons from the Amendment’s protection. Id. at 627. In the same way, the Amendment does protect weapons in “common us[age].” Id. Finally, the Second Amendment does not disturb “longstanding prohibitions” on the sale, possession, or use of guns with sufficient historical antecedents. Id. at 626–27.
Rather than rely on our own sense of what is the right balance of freedom and government restraint, then, the Court instructs lower courts to follow the meaning of the People’s law as understood at the time it was enacted. Such an approach is more determinate and “much less subjective” because “it depends upon a body of evidence susceptible of reasoned analysis rather than a variety of vague ethico-political First Principles whose combined conclusion can be found to point in any direction the judges favor.” McDonald, 561 U.S. at 804 (Scalia, J., concurring).
Far from obscuring the decision-making process, as Judge Berzon’s concurrence contends, applying the text, history, and tradition approach forces judges to put their cards on the table. It sets out the ground rules under which constitutional decision-making is made. It ensures that only proper sources, datapoints, and considerations are used to determine the scope of the Second Amendment right. Adopting this approach necessarily constrains judges to the text and the historical record rather than to their own policy preferences. To be sure, no mode of judicial decision-making is perfect or can eliminate discretionary calls, but relying on a historical methodology provides discernible rules that “hedge” discretion and expose the “misuse of these rules by a crafty or willful judge” as “an abuse of power.”
Footnote 13: Frank H. Easterbrook, Foreword to Antonin Scalia and Bryan A. Garner, Reading Law at xxiii (2012).
Even if the method requires complicated historical research or interpretative choices, the text, history, and tradition approach offers a common ground to criticize a judge who glosses over the text or misreads history or tradition.
Footnote 14: See generally William Baude, Originalism as a Constraint on Judges, 84 U. Chi. L. Rev. 2213 (2018).
Otherwise, we are left with the majority’s approach which all too often allows judges to simply pick the policies they like with no clear guardrails.
Moreover, contrary to Judge Berzon’s portrayal, the fact that “[w]ords do not have inherent meaning” is a feature — not a bug — of Heller’s text-based approach. See Berzon Concurrence 61. We agree that the meaning of words may evolve over time. But enumerated rights do not. The People ratified the Second Amendment in 1791 to protect an enduring right — not one subject to the whims of future judges or the evolution of the words used to articulate the right.
Footnote 15: See Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 862 (1989) (“The purpose of constitutional guarantees … is precisely to prevent the law from reflecting certain changes in original values that the society adopting the Constitution thinks fundamentally undesirable.”); see also William H. Rehnquist, The Notion of a Living Constitution, 54 Tex. L. Rev 693, 697 (1976) (“Once we have abandoned the idea that the authority of the courts to declare laws unconstitutional is somehow tied to the language of the Constitution that the people adopted, a judiciary exercising the power of judicial review appears in a quite different light. Judges then are no longer the keepers of the covenant; instead they are a small group of fortunately situated people with a roving commission to second-guess Congress [and] state legislatures … concerning what is best for the country.”).
This view is not radical. Chief Justice Marshall expressed a similar sentiment in 1827: The Constitution’s words, he said, “are to be understood in that sense in which they are generally used by those for whom the instrument was intended; that its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them.” Ogden v. Saunders, 25 U.S. 213, 332 (1827) (Marshall, C.J., dissenting).
Without hewing to the meaning of the right as understood at the time of enactment, we alter the rights chosen by the People and risk injecting our own policy judgments into the right’s meaning. As for Judge Berzon’s concern that the meaning of constitutional text may be “lost to the passage of time,” Berzon Concurrence 61, we have been interpreting language going back millennia. As Justice Gorsuch observed, “[j]ust ask any English professor who teaches Shakespeare or Beowulf.” Neil M. Gorsuch, A Republic, If You Can Keep It 112 (2020). Simply put, original meaning gives enduring meaning to the Constitution and preserves our rights as they were enshrined at the time of adoption.
The criticisms of history and tradition playing a role in constitutional interpretation fall equally flat. See Berzon Concurrence 62–75. As Heller shows, by looking to tradition and history, we see how constitutional text came to be and how the People closest to its ratification understood and practiced the right.
Footnote 16: See Lawrence B. Solum, The Fixation Thesis: The Role of Historical Fact in Original Meaning, 91 Notre Dame L. Rev. 1, 28 (2015) (“[T]he original public meaning was, in part, determined by the public context of constitutional communication. Thus, the public at large would have been aware of (or had access to) the basic history of the Constitution.).
And by examining a firearm’s history of common usage, we come to see the fundamental nature of the right and illuminate how a modern governmental regulation may infringe on a longstanding protection. Tradition and history may also allow us to take interpretive options off the table: they might say that two possible “answers” to a legal question are permissible, which “is worth something” because courts should not “impose a third possibility.”
Footnote 17: Ilan Wurman, Law Historians’ Fallacies, 91 N.D. L. Rev. 161, 171 (2015).
So, tradition and history inform the meaning of constitutional rights in ways that no tier-of-scrutiny can.
For sure, this approach can be difficult. Some of Judge Berzon’s process critiques are not all wrong. See Berzon Concurrence 57–58 (noting that the “volume of available historical evidence … will vary enormously and may often be either vast or quite sparse”). Looking to text, history, and tradition to uncover meaning takes time and careful analysis.
Footnote 18: See, e.g., Gary Lawson & Guy Seidman, Originalism as a Legal Enterprise, 23 Const. Comment. 47, 74–75 (2006); William Baude & Jud Campbell, Early American Constitutional History: A Source Guide (2021) (describing the wide variety of available originalist sources such as ratification debates, dictionaries, treatises, and linguistic corpora).
And interpreting the meaning of documents and events from long-ago is much harder than simply consulting our own policy views. But it is the high price our Constitution demands from judges who swear an oath to apply it faithfully. Indeed, the same criticisms leveled by Judge Berzon apply with greater force to the tiers-of-scrutiny approach because there is no historical backdrop to cabin a judge’s discretion. While judges may not be historians, neither are we economists, statisticians, criminologists, psychologists, doctors, or actuarialists.
Footnote 19: See William Baude & Stephen E. Sachs, Originalism and the Law of the Past, 37 Law and Hist. Rev. 809, 816 (2019) (“[L]egal uncertainty is hardly restricted to matters of history. Judges and juries frequently face questions that might stump expert economists or toxicologists.”).
But that is exactly the type of expertise judges use to render judgment under the majority’s approach. See, e.g., Mai, 952 F.3d at 1118–20 (using Swedish statistical studies to justify the deprivation of the Second Amendment right of a formerly mentally ill citizen). While the text, history and tradition methodology may have shortcomings, it is better than the majority’s approach.
Footnote 20: See Scalia, supra, at 862–63.
Their judicial black box leaves critics grasping to understand the court’s method for balancing policy interests. At the very least, text, history, and tradition has nothing to hide.
With a firm understanding of the approach directed by Heller, we turn to California’s large-capacity ban.
To begin, when assessing a ban on a category of weapons, we look to whether the regulation infringes on the use of instruments that constitute “bearable arms” under the Second Amendment. Heller, 554 U.S. at 582. The Court tells us that the term “bearable arms” includes any “[w]eapons of offence” or “thing that a man wears for his defence, or takes into his hands,” that is “carr[ied] … for the purpose of offensive or defensive action.” Id. at 581, 584 (simplified). It doesn’t matter if the “arm” was “not in existence at the time of the founding.” See id. at 582.
At issue here are magazines capable of carrying more than ten rounds. A “magazine” is a firearm compartment that stores ammunition and feeds it into the firearm’s chamber.
The magazines are integral to the operation of firearms. As a result, many popular firearms would be practically inoperable without magazines.
That the law bans magazines rather than the guns themselves does not alter the Second Amendment inquiry. Constitutional rights “implicitly protect those closely related acts necessary to their exercise.” Luis, 136 S. Ct. at 1097 (Thomas, J., concurring). “No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized[.]” The Federalist No. 44, at 282 (James Madison) (Charles R. Kesler ed., 2003). Without protection of the components that render a firearm operable, the Second Amendment would be meaningless. See Luis, 136 S. Ct. at 1098 (Thomas, J., concurring); see also Fyock v. Sunnyvale, 779 F.3d 991, 998 (9th Cir. 2015) (recognizing the “right to possess the magazines necessary to render … firearms operable”).
Because California’s law prohibits the possession of large-capacity magazines, it is within the scope of the Second Amendment’s protection.
Footnote 22: California asserts that the Second Amendment doesn’t extend to weapons “most useful in military service.” Heller did not establish such an exception. In fact, Heller said the opposite: the Amendment’s prefatory clause reference to the “conception of the militia” means that the right protects “the sorts of lawful weapons that [citizens] possessed at home [to bring] to militia duty.” 554 U.S. at 627. Justice Alito squarely dispensed with California’s argument in Caetano, stating that the Court has “recognized that militia members traditionally reported for duty carrying the sorts of lawful weapons that they possessed at home, and that the Second Amendment therefore protects such weapons as a class, regardless of any particular weapon’s suitability for military use.” 577 U.S. at 419 (Alito, J., concurring) (simplified).
The next step in the Court’s analysis requires that we determine whether large-capacity magazines are “typically possessed by law-abiding citizens for lawful purposes.” Heller, 554 U.S. at 625. As we stated, this inquiry examines the historical record to determine whether the weapons are “dangerous and unusual,” on the one hand, or whether they are in “common use,” on the other. Id. at 627 (simplified).
Footnote 23: We believe this inquiry is one and the same. Heller mentions both in the same breath. Referring to the Court’s prior precedent that “the sorts of weapons protected were those ‘in common use at the time,’” the Court noted that “that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’” 554 U.S. at 627 (citing United States v. Miller, 307 U.S. 174, 179–80 (1939)). As then-Judge Kavanaugh recognized, Heller “said that ‘dangerous and unusual weapons’ are equivalent to those weapons not ‘in common use.’” Heller II, 670 F.3d at 1272 (Kavanaugh, J., dissenting) (simplified); see also United States v. Fincher, 538 F.3d 868, 874 (8th Cir. 2008) (“Machine guns are not in common use by law-abiding citizens for lawful purposes and therefore fall within the category of dangerous and unusual weapons that the government can prohibit for individual use.”); Wilson v. Cnty. of Cook, 968 N.E.2d 641, 655 (Ill. 2012) (“Heller explicitly recognized a historical and long-standing tradition of firearms regulations prohibiting a category of ‘dangerous and unusual weapons’ that are ‘not typically possessed by law-abiding citizens for lawful purposes.’”).
First, a word about “common usage.” We start with the well-established premise that the Constitution protects enduring principles: “The meaning of the Constitution is fixed when it is adopted, and it is not different at any subsequent time when a court has occasion to pass upon it.” W. Coast Hotel Co. v. Parrish, 300 U.S. 379, 404 (1937). Thus, absent amendment, “the relevant [constitutional] principles must be faithfully applied not only to circumstances as they existed in 1787, 1791, and 1868, for example, but also to modern situations that were unknown to the Constitution’s Framers.” Heller II, 670 F.3d at 1275 (Kavanaugh, J., dissenting).
Here, we look to the Second Amendment’s text for its enduring meaning. Its prefatory clause reads: “A well regulated Militia, being necessary to the security of a free State[.]” U.S. Const. amend. II. The Court has told us that this prefatory clause “fits perfectly” with the Amendment’s operative clause’s individual right to keep and bear arms: “the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents.” Heller, 554 U.S. at 598. Thus, the prefatory clause “announces the purpose for which the right was codified: to prevent elimination of the militia.” Id. at 599.
Understanding this background informs the type of weapons protected by the Second Amendment. As the Court wrote:
In all the colonies, as in England, the militia system was based on the principle of the assize of arms. This implied the general obligation of all adult male inhabitants to possess arms, and, with certain exceptions, to cooperate in the work of defence. The possession of arms also implied the possession of ammunition, and the authorities paid quite as much attention to the latter as to the former.
Miller, 307 U.S. at 179–80 (simplified). The militia system then created a central duty: “ordinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” Id. at 179. Thus, the lifeblood of militia service was citizens armed with weapons typically possessed at home for lawful purposes. As a result, the Second Amendment protects such weapons as a class. See Heller, 554 U.S. at 627.
So, the Second Amendment protects the type of bearable weapons commonly used by citizens and at the ready for militia service — whether it be in 1791 or today.
Footnote 24: It is no matter that citizens don’t typically serve in militias today, or that the weapons protected by the Second Amendment would be comparatively ineffective in modern warfare. As Heller explained, “the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.” Heller, 554 U.S. at 627–28.
What remains is an inquiry that is simultaneously historical and contemporary. The historical inquiry is relevant because we “reason by analogy from history and tradition” when interpreting the Constitution. Ass’n of N.J. Rifle & Pistol Clubs v. Att’y Gen. N.J., 974 F.3d 237, 257 (3d Cir. 2020) (Matey, J., dissenting) (simplified). The Second Amendment right thus extends to “modern-day equivalents” of arms protected at the Founding. See Parker v. District of Columbia, 478 F.3d 370, 398 (D.C. Cir. 2007) (“[J]ust as the First Amendment free speech clause covers modern communication devices unknown to the founding generation, e.g., radio and television, and the Fourth Amendment protects telephonic conversation from a ‘search,’ the Second Amendment protects the possession of the modern-day equivalents of the colonial pistol.”), aff’d sub nom., Heller, 554 U.S. 570. For this reason, even new or relatively unpopular firearms today might enjoy the Second Amendment’s protection if they are “modern-day equivalents” of firearms that have been commonly owned for lawful purposes. Of course, the protection extends equally to weapons not in common use as a historical matter, so long as they are “commonly possessed by law-abiding citizens for lawful purposes today.” Caetano, 577 U.S. at 420 (Alito, J., concurring).
Some courts have reviewed that common usage requirement as being “an objective and largely statistical inquiry.” N.Y. State Rifle & Pistol Ass’n v. Cuomo, 804 F.3d 242, 256 (2d Cir. 2015). For example, Justice Alito noted the quantity of stun guns (200,000) in circulation as proof that they’re commonly owned for lawful purposes. Caetano, 577 U.S. at 420 (Alito, J., concurring). But a narrow focus on numbers may not capture all of what it means to be a weapon “typically possessed by law-abiding citizens for lawful purposes.” Heller, 554 U.S. at 625. As Judge Lee noted, “pure statistical inquiry may hide as much as it reveals.” Duncan, 970 F.3d at 1147. A straight quantitative inquiry could create line-drawing problems and lead to bizarre results — such as the exclusion of a protectable arm because it is not widely possessed “by virtue of an unchallenged, unconstitutional regulation.” Id.; see also Friedman v. City of Highland Park, 784 F.3d 406, 409 (7th Cir. 2015) (“Yet it would be absurd to say that the reason why a particular weapon can be banned is that there is a statute banning it, so that it isn’t commonly used. A law’s existence can’t be the source of its own constitutional validity.”). Indeed, notably absent from Heller is any analysis of the number of handguns in circulation or the proportion of owned firearms that were handguns. Heller instead focused on the purpose for which the firearms are owned and used. See 554 U.S. at 629 (“It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon.”). Thus, in addition to statistical analysis, some courts also look to “broad patterns of use and the subjective motives of gun owners.” N.Y. State Rifle & Pistol Ass’n, 804 F.3d at 256. We need not resolve all these questions today, since large-capacity magazines, as we show below, are “in common use” today under either rubric.
Looking at the historical record, large-capacity magazines are clear modern-day equivalents of arms in common use by the incorporation of the Second Amendment and are, thus, entitled to constitutional protection. As Judge Lee concluded: “Firearms or magazines holding more than ten rounds have been in existence — and owned by American citizens — for centuries. Firearms with greater than ten round capacities existed even before our nation’s founding, and the common use of [large-capacity magazines] for self-defense is apparent in our shared national history.” Duncan, 970 F.3d at 1147; see also David B. Kopel, The History of Firearm Magazines and Magazine Prohibitions, 78 Alb. L. Rev. 849, 851 (2015) (“[I]n terms of large-scale commercial success, rifle magazines of more than ten rounds had become popular by the time the Fourteenth Amendment was being ratified.”).
Rather than re-tell the long history of large-capacity magazines in this country, we offer some highlights:
From this history, the clear picture emerges that firearms with large-capacity capabilities were widely possessed by law-abiding citizens by the time of the Second Amendment’s incorporation. In that way, today’s large-capacity magazines are “modern-day equivalents” of these historical arms, and are entitled to the Second Amendment’s protection.
It is also uncontested that ammunition magazines that hold more than ten rounds enjoy widespread popularity today. This is evident from the fact that as many as 100,000,000 such magazines are currently lawfully owned by citizens of this country. It’s also apparent from the fact that those magazines are a standard component on many of the nation’s most popular firearms, such as the Glock pistol, which comes with a magazine that holds 15 to 17 rounds.
Footnote 25: We can go on and on with examples. Since 1964, Ruger has sold six million copies of its 10/22 rifles, which is manufactured with 10-round, 15-round, and 25-round magazines. More than five million AR-15 rifles have been sold, typically with 30-round magazines. The commonality of large-capacity magazines is well accepted by other courts. See, e.g., Heller II, 670 F.3d at 1261 (“We think it clear enough in the record that semi-automatic rifles and magazines holding more than ten rounds are indeed in ‘common use,’ as the plaintiffs contend” because “fully 18 percent of all firearms owned by civilians in 1994 were equipped with magazines holding more than ten rounds, and approximately 4.7 million more such magazines were imported into the United States between 1995 and 2000.”).
They are lawful in at least 41 states and under Federal law. Indeed, large-capacity magazines account for half of all magazines owned in the United States today. Thus, the record in this case shows that large-capacity magazines are in common use for lawful purposes today, entitling them to Second Amendment protection.
Not only are they ubiquitous, the large-capacity magazines are used for lawful purposes, like home defense. Millions of semiautomatic pistols, the “quintessential self-defense weapon” for the American people, Heller, 554 U.S. at 629, come standard with magazines carrying over ten rounds. Many citizens rely on a single, large-capacity magazine to respond to an unexpected attack. As one firearms expert put it: firearms equipped with a magazine capable of holding more than ten rounds are “more effective at incapacitating a deadly threat and, under some circumstances, may be necessary to do so.” This is why many Americans choose to advantage themselves by possessing a firearm equipped with a large-capacity magazine and why the ownership of those magazines is protected by the Second Amendment.
California does not refute any of this.
Footnote 26: Instead, California points to data suggesting that people using firearms in self-defense fire only “2.2 shots on average.” On this basis, California argues that the banned magazines are not useful for self-defense. This is a non-sequitur. That a citizen did not expend the full magazine does not mean that the magazine was not useful for self-defense purposes. It is also immaterial that plaintiffs have not shown when a large-capacity magazine was necessary to fend off attackers. That is not the test. Heller only looks to the purpose of the firearm’s ownership — not that it is effectively used or absolutely necessary for that purpose. In fact, we are hopeful that most law-abiding citizens never have to use their firearms in self-defense.
Indeed, courts throughout the country agree that large-capacity magazines are commonly used for lawful purposes. See Ass’n of N.J. Rifle & Pistol Clubs, 910 F.3d at 116–17 (“The record shows that millions of magazines are owned, often come factory standard with semi-automatic weapons, are typically possessed by law-abiding citizens for hunting, pest-control, and occasionally self-defense[.]” (simplified)); N.Y. State Rifle & Pistol Ass’n, 804 F.3d at 255 (“[S]tatistics suggest that about 25 million large-capacity magazines were available in 1995, … and nearly 50 million such magazines — or nearly two large-capacity magazines for each gun capable of accepting one — were approved for import by 2000.). Even our court has begrudgingly admitted as much. See Fyock, 779 F.3d at 998 (“[W]e cannot say that the district court abused its discretion by inferring from the evidence of record that, at a minimum, [large-capacity] magazines are in common use. And, to the extent that certain firearms capable of use with a magazine — e.g., certain semiautomatic handguns — are commonly possessed by law-abiding citizens for lawful purposes, our case law supports the conclusion that there must also be some corollary, albeit not unfettered, right to possess the magazines necessary to render those firearms operable.”).
In sum, firearms with magazines capable of firing more than ten rounds are commonplace in America today. And they are widely possessed for the purpose of self-defense, the very core of the Second Amendment. Accordingly, an overwhelming majority of citizens who own and use large-capacity magazines do so for lawful purposes. “Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.” Friedman, 136 S. Ct. at 449 (Thomas, J., joined by Scalia, J., dissenting from denial of certiorari) (emphasis added). So, unless subject to “longstanding prohibition,” they are protected by the Second Amendment.
After completing its analysis, Heller cautioned: “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Heller, 554 U.S. at 626–27. The Court also noted that its list of “presumptively lawful regulatory measures” was not “exhaustive.” See id. at 627 n.26. Thus, it would be wise to ask whether California’s law enjoys the endorsement of history. Our task, therefore, is to determine “whether the challenged law traces its lineage to founding-era or Reconstruction-era regulations,” Duncan, 970 F.3d at 1150, because “[c]onstitutional rights are enshrined with the scope they were understood to have when the people adopted them,” Heller, 554 U.S. at 634–35. As a preview, California cannot meet this showing: the magazine ban’s earliest analogues only show up in the early twentieth century, which doesn’t meet the definition of “longstanding” under Heller.
The Court’s first example of a longstanding and presumptively lawful regulatory measure is the “prohibition o[f] the possession of firearms by felons and the mentally ill.” Heller, 554 U.S. at 626. Prohibiting the possession of arms by those found by the state to be dangerous, like violent criminals, dates to the Founding.
Footnote 27: See Kanter v. Barr, 919 F.3d 437, 464 (7th Cir. 2019) (“History … support[s] the proposition that the state can take the right to bear arms away from a category of people that it deems dangerous.”) (Barrett, J., dissenting); C. Kevin Marshall, Why Can’t Martha Stewart Have A Gun?, 32 Harv. J.L. & Pub. Pol’y 695, 698 (2009) (“‘[L]ongstanding’ precedent in America and pre-Founding England suggests that a firearms disability can be consistent with the Second Amendment to the extent that … its basis credibly indicates a present danger that one will misuse arms against others and the disability redresses that danger.”); Stephen P. Halbrook, What the Framers Intended: A Linguistic Analysis of the Right to ‘Bear Arms’, 49 Law & Contemp. Probs. 151, 161 (1986) (“[V]iolent criminals, children, and those of unsound mind may be deprived of firearms[.]”); Binderup v. Att’y Gen. United States of Am., 836 F.3d 336, 369 (3d Cir. 2016) (Hardiman, J., concurring in part and concurring in the judgments) (“[T]he historical record leads us to conclude that the public understanding of the scope of the Second Amendment was tethered to the principle that the Constitution permitted the dispossession of persons who demonstrated that they would present a danger to the public if armed.”). Because such prohibitions — in their contemporary form — date only to the early twentieth century, Marshall, supra at 695, some (including the majority) have mistakenly concluded that any firearm regulation dating to that period must be presumptively lawful. See, e.g., Maj. Op. 28–29.
And prohibiting the mentally ill from exercising firearms rights also has roots dating to the Founding. See Mai, 974 F.3d at 1090 (Bumatay, J., dissenting from the denial of reh’g en banc).
Heller next points to laws that forbid “the carrying of firearms in sensitive places,” as an example of longstanding regulatory measures. 554 U.S. at 626. Again, this practice dates to the Founding: “colonial and early state governments routinely exercised their police powers to restrict the time, place, and manner in which Americans used their guns.” Robert H. Churchill, Gun Regulation, the Police Power, and the Right to Keep Arms in Early America: The Legal Context of the Second Amendment, 25 Law & Hist. Rev. 139, 162 (2007). For example, the Delaware Constitution of 1776 stated that “no person shall come armed to any” of the state elections, so as to “prevent any violence or force being used at the said elections.” Del. Const., art. 28 (1776). And the multitude of Founding-era laws regulating the times and places in which firearms could be used are well documented. See Churchill, supra at 161–66.
The final demonstrative category in Heller is the imposition of “conditions and qualifications on the commercial sale of arms.” 554 U.S. at 627. The historical lineage of such a broad set is necessarily difficult to trace; the more specific the “condition” or “qualification,” the more varied the history will be. Cf. Pena v. Lindley, 898 F.3d 969, 976 (9th Cir. 2018) (“Our circuit similarly has strained to interpret the phrase ‘conditions and qualifications on the commercial sale of arms.’”). Still, in analyzing this category, our circuit has traced its antecedents to the Founding. We’ve noted that “colonial government regulation included some restrictions on the commercial sale of firearms.” Teixeira v. Cnty. of Alameda, 873 F.3d 670, 685 (9th Cir. 2017) (en banc).
Footnote 28: For example, several colonies “passed laws in the first half of the seventeenth century making it a crime to sell, give, or otherwise deliver firearms or ammunition to Indians.” Teixeira, 873 F.3d at 685. And, for instance, “Connecticut banned the sale of firearms by its residents outside the colony.” Id. Connecticut law also required a license to sell gunpowder that had been manufactured in the colony outside the colony. See An Act for encouraging the Manufactures of Salt Petre and Gun Powder, December 1775, reprinted in The Public Records of the Colony of Connecticut From May, 1775, to June, 1776 191 (Charles J. Hoadly ed., 1890); (“Be it … enacted, That no salt petre, nitre or gun-powder made and manufactured, or that shall be made and manufactured in this Colony, shall be exported out of the same by land or water without the licence of the General Assembly or his Honor the Governor and Committee of Safety[.]”). Similarly, New Jersey law required that any gunpowder be inspected and marked before its sale. An Act for the Inspection of Gun-Powder, ch. 6, §1. 1776 N. J. Laws 6. (making it an “Offence” for “any Person” to “offer any Gun-Powder for Sale, without being previously inspected and marked as in herein after directed”).
As mentioned above, a pattern emerges. Heller’s examples of longstanding, presumptively lawful regulations have historical analogues at least dating to the Founding. This makes sense: determining the core of the Second Amendment’s protection is, after all, a “historical inquiry [that] seeks to determine whether the conduct at issue was understood to be within the scope of the right at the time of ratification.” United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010).
That pattern is problematic for California. The first law limiting magazine capacity was enacted by Michigan in 1927, setting an upper limit of 16 rounds. See Act of June 2, 1927, No. 373, § 3, 1927 Mich. Public Acts 887, 888 (repealed 1959). Rhode Island passed a similar ban that year, prohibiting any firearm that could shoot more than 12 times without reloading. See Act of Apr. 22, 1927, ch. 1052, §§ 1, 4, 1927 R.I. Acts & Resolves 256, 256–57 (amended 1959). In 1932, the District of Columbia prohibited the possession of a firearm that could shoot more than 12 rounds without reloading. See Act of July 8, 1932, Pub. L. No. 72-275, §§ 1, 8, 47 Stat. 650, 650, 652. The next year, Ohio passed a law requiring a permit to possess any firearm with an ammunition capacity over 18 rounds. See Act of Apr. 8, 1933, No. 166, sec. 1, §§ 12819-3, -4, 1933 Ohio Laws 189, 189 (amended 1972). California’s law, meanwhile, dates only to 1999.
California does not dispute the historical record — it points to the above Prohibition-era laws of Michigan, Rhode Island, and Ohio to defend its own ban’s historical pedigree. But such laws aren’t nearly old enough to be longstanding. Even if, for the sake of argument, we granted that a regulation need only date to the Reconstruction era to be sufficiently longstanding, California’s large-capacity magazine ban still fails. Thus, California’s magazine ban is not longstanding or presumptively lawful.
Footnote 29: Sufficient historical pedigree is only capable of establishing a presumption in favor of constitutionality. But that presumption is not dispositive. Thus, even if California’s magazine ban dated to a period that would plausibly render it longstanding (i.e., the Founding or Reconstruction), we would still need to answer whether that presumption could be overcome. California’s law effectively outlaws massive swaths of firearms chosen by law-abiding citizens for lawful purposes like self-defense. If a court were forced to answer the question, it’s possible that the ban’s history couldn’t save it.
See Ass’n of N.J. Rifle & Pistol Clubs, 910 F.3d at 116–17 (“[T]here is no longstanding history of LCM regulation.”); id. at 117 n.18 (“LCMs were not regulated until the 1920s, but most of those laws were invalidated by the 1970s. The federal LCM ban was enacted in 1994, but it expired in 2004.”) (simplified).
Not only is California’s ban not historically longstanding, but it also differs in kind from the regulatory measures mentioned in Heller. Regulations on possession by people dangerous to society, where a firearm may be carried, and how firearms may be exchanged, see Heller, 554 U.S. at 626–27, are about the manner or place of use and sale or the condition of the user. California’s ban, on the other hand, is much more like a “prohibition on an entire class of ‘arms’ that is overwhelmingly chosen by American society” for home defense. Id. at 628. Also, like the ban in Heller, California’s ban extends “to the home, where the need for defense of self, family, and property is most acute.” Id.
In the end, California fails to point to a single Founding-era statute that is even remotely analogous to its magazine ban. Ironically, the closest Founding-era analogues to ammunition regulations appear to be laws requiring that citizens arm themselves with particular arms and a specific minimum amount of ammunition. See 1784 Mass. Acts 142; 1786 N. Y. Laws 228; 1785 Va. Statutes at Large 12 (12 Hening c. 1); 1 Stat. 271 (1792) (Militia Act); Herbert L. Osgood, The American Colonies in the Seventeenth Century 499–500 (1904) (showing that states required citizens to equip themselves with adequate firearms and sufficient ammunition — varying between twenty and twenty-four cartridges at minimum). That does not offer historical support for California’s ban; in fact, it runs directly counter to California’s position.
California’s experiment bans magazines that are commonly owned by millions of law-abiding citizens for lawful purposes. These magazines are neither dangerous and unusual, nor are they subject to longstanding regulatory measures. In ratifying the Second Amendment, the People determined that such restrictions are beyond the purview of government. Our court reaches the opposite conclusion in contravention of the Constitution and Supreme Court precedent. In so doing, it once again employs analytical tools foreign to the Constitution — grafting terms like “intermediate scrutiny,” “alternative channels,” and “reasonable fit” that appear nowhere in its text. So yet again, we undermine the judicial role and promote ourselves to the position of a super-legislature — voting on which fundamental rights protected by the Constitution will be honored and which will be dispensed with.
We respectfully dissent.
Joined in this dissent by Circuit Judges Sandra S. Ikuta and Ryan D. Nelson.