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Trump Judge Writes Ruling Striking Down State Ban on High-Capacity Ammunition Magazines: Confirmed Judges, Confirmed Fears

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Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Ninth Circuit judge Kenneth Lee wrote a 2-1 ruling that affirmed a lower court and ruled that a California ban on high-capacity ammunition magazines violates the Second Amendment, despite contrary decisons by other appeals courts.  The August 2020 decision is in Duncan v. Becerra.

Like a number of other states, California law bans possession of large-capacity magazines (LCMs) that hold and allow rapid firing of more than ten rounds of ammunition. The law was enacted “[i]n the wake of heart-wrenching and highly publicized mass shootings” in order to prevent and mitigate gun violence and protect the public as well as law enforcement personnel.

With the support of the National Rifle Association, gun owners filed suit to overturn the law as unconstitutional under the Second Amendment. Citing a dissent by Justice Brett Kavanaugh, a lower court judge struck down the law and California filed an appeal. In the Ninth Circuit, Trump judge Lee affirmed the lower court and ruled that the California LCM law violates the Second Amendment.

Lee noted at the outset of a long opinion that the LCM ban “strikes at the core of the Second Amendment – the right to self-defense”, which he claimed was “fundamental” and “paramount.” He went on to state that LCMs are  both “prevalent in America” and “not unusual”, and to elaborate on the “fundamental nature of the right to bear arms” under the Second Amendment, including ammunition magazines. He further maintained that the LCM law substantially burdens and  “strikes at core Second Amendment rights” and can be justified only if it survives “strict scrutiny” and is “narrowly tailored” to achieve a “compelling interest.” Although Lee conceded that California’s interests are compelling, he claimed that the law was not narrowly tailored because it applies to “nearly everyone” and is not “limited to firearms that are not commonly used for self-defense.” The law is so broad, Lee claimed, that it would fail even under “intermediate” scrutiny because the broad ban is not “substantially related” to achieving its objectives. In short, he concluded that the state’s “near-categorical ban of LCMs” violates the Second Amendment and “cannot stand.”

Judge Barbara Lynn strongly dissented. Despite the majority’s attempt to distinguish them, she pointed out, the decision contradicts appeals court rulings in “every other Circuit” – six in total – “to address the Second Amendment issue presented here.”  She also explained that Lee’s decision contradicts the Ninth Circuit’s previous decision in the Fyock case that “affirmed a district court’s refusal to preliminarily enjoin the city of Sunnyvale’s ban on LCMs.”  Based on these decisions, she went on, the LCM ban does not “substantially burden” Second Amendment rights because it restricts possession of “only a subset of magazines” and “does not prevent” weapons for self-defense purposes.  Evidence in the record, she went on, shows that the use of LCMs results in “more gunshots fired” and “more gunshot wounds per victim”, thereby increasing “the lethality of gunshot injuries” and the number of “fatalities per incident” in illegal shootings. Based on the record and prior case law, Lynn concluded, the LCM ban is a “reasonable fit for achieving the state’s objective” because it “targets only the types of magazines most likely to present increased risk” of lethal mass shootings and related gun violence.

As a result of Lee’s majority opinion, however, the LCM restrictions in California are now unconstitutional. The full Ninth Circuit may reconsider the case, but for now the case presents perhaps the most troubling example yet of pro-gun views of Trump judges endangering Americans’ health and safety.