Based on Ninth Circuit ‘Logic,’ No Semi-Auto Gun Needs a Magazine That Holds More Than Two Rounds

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.

– Stephen Halbrook in Second Amendment Roundup: 9th Circuit Upholds California Magazine Ban (Again)