Virginia Duncan v. Rob Bonta ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VIRGINIA DUNCAN; RICHARD LEWIS; No. 19-55376
PATRICK LOVETTE; DAVID
MARGUGLIO; CHRISTOPHER D.C. No.
WADDELL; CALIFORNIA RIFLE & 3:17-cv-01017-
PISTOL ASSOCIATION, INC., a BEN-JLB
California corporation,
Plaintiffs-Appellees,
OPINION
v.
ROB BONTA, in his official capacity
as Attorney General of the State of
California,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted En Banc June 22, 2021
Pasadena, California
Filed November 30, 2021
Before: Sidney R. Thomas, Chief Judge, and Susan P.
Graber, Richard A. Paez, Marsha S. Berzon, Sandra S.
Ikuta, Mary H. Murguia, Paul J. Watford, Andrew D.
Hurwitz, Ryan D. Nelson, Patrick J. Bumatay and
Lawrence VanDyke, Circuit Judges.
2 DUNCAN V. BONTA
Opinion by Judge Graber;
Concurrence by Judge Graber;
Concurrence by Judge Berzon;
Concurrence by Judge Hurwitz;
Dissent by Judge Bumatay;
Dissent by Judge VanDyke
SUMMARY *
Second Amendment
The en banc court reversed the district court’s summary
judgment and remanded for entry of judgment in favor of
Defendant Rob Bonta, Attorney General for the State of
California, in an action raising a facial challenge to
California Penal Code section 32310, which prohibits, with
certain exceptions, possession of large-capacity magazines,
defined as those that can hold more than ten rounds of
ammunition.
California law allows owners of large-capacity
magazines to modify them to accept ten rounds or fewer.
Owners also may sell their magazines to firearm dealers or
remove them from the state. And the law provides several
exceptions to the ban on large-capacity magazines, including
possession by active or retired law enforcement officers,
security guards for armored vehicles, and holders of special
weapons permits.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
DUNCAN V. BONTA 3
Plaintiffs, who include persons who previously acquired
large-capacity magazines lawfully, bring a facial challenge
to California Penal Code section 32310. They argue that the
statute violates the Second Amendment, the Takings Clause,
and the Due Process Clause.
The court applied a two-step framework to review the
Second Amendment challenge, asking first whether the
challenged law affects conduct protected by the Second
Amendment, and if so, what level of scrutiny to apply. The
court noted that ten sister circuits have adopted a
substantially similar two-step test. The court assumed,
without deciding, that California’s law implicates the
Second Amendment, and joining its sister circuits that have
unanimously applied intermediate scrutiny to other laws
banning or restricting large-capacity magazines, determined
that intermediate scrutiny applied because the ban imposed
only a minimal burden on the core Second Amendment right
to keep and bear arms. Applying intermediate scrutiny, the
court held that section 32310 was a reasonable fit for the
important government interest of reducing gun violence.
The statute outlaws no weapon, but only limits the size of
the magazine that may be used with firearms, and the record
demonstrates (a) that the limitation interferes only minimally
with the core right of self-defense, as there is no evidence
that anyone ever has been unable to defend his or her home
and family due to the lack of a large-capacity magazine; and
(b) that the limitation saves lives. The court noted that in the
past half-century, large-capacity magazines have been used
in about three-quarters of gun massacres with 10 or more
deaths and in 100 percent of gun massacres with 20 or more
deaths, and more than twice as many people have been killed
or injured in mass shootings that involved a large-capacity
magazine as compared with mass shootings that involved a
smaller-capacity magazine. Accordingly, the ban on legal
4 DUNCAN V. BONTA
possession of large-capacity magazines reasonably
supported California’s effort to reduce the devastating
damage wrought by mass shootings.
The court held that section 32310 does not, on its face,
effect a taking. The government acquires nothing by virtue
of the limitation on the capacity of magazines, and because
owners may modify or sell their nonconforming magazines,
the law does not deprive owners of all economic use.
Plaintiffs’ due process claim essentially restated the takings
claim, and it failed for the same reasons.
Concurring, Judge Graber stated that as the majority
opinion explains, District of Columbia v. Heller, 554 U.S.
570 (2008), does not provide a clear framework for deciding
whether a statute does or does not violate the Second
Amendment. But by repeatedly drawing an analogy to the
First Amendment’s Free Speech Clause, Heller strongly
suggests that intermediate scrutiny can apply to the Second
Amendment, too. Accordingly, reasonable restrictions on
the time, place, or manner of exercising the Second
Amendment right to keep and bear arms are permissible if
they leave open ample alternative means of exercising that
right, the central component of which is individual self-
defense. Applying those principles here, intermediate
scrutiny was the appropriate standard for assessing
California’s ban on large-capacity magazines. Other circuits
have recognized, and Judge Graber agreed, that a ban on
large-capacity magazines leaves open ample alternative
means of self-defense.
Concurring, Judge Berzon, joined by Judges Thomas,
Paez, Murguia, Watford and Hurwitz, wrote separately to
respond to Judge Bumatay’s dissent, which advocated a
“text, history, and tradition” approach to Second
Amendment legal claims. In connection with her response,
DUNCAN V. BONTA 5
Judge Berzon offered a brief theoretical and historical
defense of the two-step, tiered scrutiny approach used by
eleven of the federal courts of appeals in
Second Amendment cases. Judge Berzon hoped to
demonstrate that the notion that judges can avoid so-called
subjectivity more successfully under the “text, history, and
tradition” approach than under the two-step, tiered scrutiny
analysis was a simplistic illusion. Rather than representing
a “much less subjective” framework for decisionmaking in
Second Amendment cases involving discrete arms
regulations, the “text, history, and tradition” test obscures
the myriad indeterminate choices that will arise in most such
cases. The tiered scrutiny approach, in contrast, serves to
guide and constrain a court’s analysis in Second Amendment
disputes regarding discrete arms regulations, as it has done
for numerous other constitutional provisions. Additionally,
the notion that text, history, and, especially, “tradition” are
objectively ascertainable disregards what linguists,
historians, and anthropologists have long recognized:
language can be indeterminate, especially as time passes;
ascertaining what happened in the past is contingent and
variable, because both the data available and the means of
structuring and analyzing that data vary over time; and
“tradition” is a term with little stable meaning, both as to the
time period it takes for a “tradition” to become established
and as to the individuals or communities whose habits and
behaviors are said to establish a “tradition.”
Concurring, Judge Hurwitz wrote that he was reluctantly
compelled to respond to the dissent of Judge VanDyke.
Judge Hurwitz stated that judges can respectfully disagree
on whether the measures California has adopted violate the
Second Amendment. But an attack on the personal motives
of the members of this court who reach the same result in
this case as every other Circuit to address this issue neither
6 DUNCAN V. BONTA
advances the court’s discourse nor gives intellectual support
to the legal positions argued by Judge VanDyke.
Dissenting, Judge Bumatay, joined by Judges Ikuta and
R. Nelson, stated that the tiers-of-scrutiny approach utilized
by the majority functions as nothing more than a black box
used by judges to uphold favored laws and strike down
disfavored ones. While the court can acknowledge that
California asserts a public safety interest, it 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. Judge Bumatay believes that this
court should have dispensed with the interest-balancing
approach and hewed to what the Supreme Court told the
courts to do in the watershed case, District of Columbia v.
Heller, 554 U.S. 570, 595 (2008), which 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, rather than
the tiers-of-scrutiny approach used by the majority. 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.
Dissenting, Judge VanDyke largely agreed with Judge
Bumatay’s dissent. Judge VanDyke stated that the majority
of this court distrusts gun owners and thinks the Second
Amendment is a vestigial organ of their living constitution.
Those views drive this Circuit’s caselaw ignoring the
DUNCAN V. BONTA 7
original meaning of the Second Amendment and fully
exploiting the discretion inherent in the Supreme Court’s
cases to make certain that no government regulation ever
fails the court’s laughably “heightened” Second Amendment
scrutiny. This case is the latest demonstration that the
Circuit’s current test is too elastic to impose any discipline
on judges who fundamentally disagree with the need to keep
and bear arms. Responding to Judge Hurwitz’s claim that
judges’ personal views about the Second Amendment and
guns have not affected the Ninth Circuit’s jurisprudence,
Judge VanDyke argued this is simply not plausible when
viewed against the backdrop of our circuit’s Second
Amendment decisions, including Judge Hurwitz’s own
concurrence in this case. Judge VanDyke consequently
suggested two less manipulable tests the Supreme Court
should impose on lower courts for analyzing government
regulations burdening Second Amendment rights. First, the
Supreme Court should elevate and clarify Heller’s “common
use” language and explain that when a firearm product or
usage that a state seeks to ban is currently prevalent
throughout our nation (like the magazines California has
banned here), then strict scrutiny applies. Second, the Court
should direct lower courts like this one to compare one
state’s firearm regulation to what other states do (here a
majority of states allow what California bans), and when
most other states don’t similarly regulate, again, apply strict
scrutiny.
8 DUNCAN V. BONTA
COUNSEL
Samuel P. Siegel (argued) and Helen H. Hong, Deputy
Solicitors General; John D. Echeverria, Deputy Attorney
General; Mark R. Beckington and Heather Hoesterey,
Supervising Deputy Attorneys General; Thomas S.
Patterson, Senior Assistant Attorney General; Michael J.
Mongan, Solicitor General; Rob Bonta, Attorney General;
Office of the Attorney General, Sacramento, California; for
Defendant-Appellant.
Erin E. Murphy (argued), Paul D. Clement, Kasdin M.
Mitchell, and William K. Lane III, Kirkland & Ellis LLP,
Washington, D.C.; C.D. Michel, Anna M. Barvir, and Sean
A. Brady, Michel & Associates P.C., Long Beach,
California; for Plaintiffs-Appellees.
Jonathan E. Lowy and T. Tanya Schardt, Brady,
Washington, D.C.; Rafael Reyneri, Scott D. Danzis, Thomas
C. Villalon, and Nora Conneely, Covington & Burling LLP,
Washington, D.C.; for Amicus Curiae Brady.
Scott A. Edelman, Gibson Dunn & Crutcher LLP, Los
Angeles, California; Vivek R. Gopalan, Matthew C. Reagan,
and Zhen He Tan, Gibson Dunn & Crutcher LLP, San
Francisco, California; Kathryn M. Cherry, Gibson Dunn &
Crutcher LLP, Dallas, Texas; Hannah Shearer and Hannah
Friedman, Giffords Law Center to Prevent Gun Violence,
San Francisco, California; J. Adam Skaggs, Giffords Law
Center to Prevent Gun Violence, New York, New York; for
Amici Curiae Giffords Law Center to Prevent Gun Violence
and March for Our Lives Action Fund.
Antonio J. Perez-Marques and Antonio M. Haynes, David
Polk & Wardwell LLP, New York, New York; Eric
DUNCAN V. BONTA 9
Tirschwell, Mark Anthony Frassetto, Janet Carter, and
William J. Taylor Jr., Everytown Law, New York, New
York; for Amicus Curiae Everytown for Gun Safety.
Christa Y. Nicols, Brady, Washington, D.C., for Amicus
Curiae Team ENOUGH.
Jonathan K. Baum, Katten Muchin Rosenman LLP,
Chicago, Illinois; Mark T. Ciani, Katten Muchin Rosenman
LLP, New York, New York; for Amici Curiae California
Chapter of the American College of Emergency Physicians,
American Academy of Pediatrics California, and California
Academy of Family Physicians.
Karl A. Racine, Attorney General; Loren L. Alikhan,
Solicitor General; Caroline S. Van Zile, Principal Deputy
Solicitor General; Carl J. Schifferle, Deputy Solicitor
General; Sonya L. Lebsack, Assistant Attorney General;
Office of the Solicitor General, Washington, D.C.; William
Tong, Attorney General, Hartford, Connecticut; Kathleen
Jennings, Attorney General, Wilmington, Delaware; Clare
E. Connors, Attorney General, Honolulu, Hawaii; Kwame
Raoul, Attorney General, Chicago, Illinois; Brian E. Frosh,
Attorney General, Baltimore, Maryland; Maura Healey,
Attorney General, Boston, Massachusetts; Dana Nessel,
Attorney General, Lansing, Michigan; Keith Ellison,
Attorney General, St. Paul, Minnesota; Gurbir S. Grewal,
Attorney General, Trenton, New Jersey; Hector Balderas,
Attorney General, Santa Fe, New Mexico; Letitia James,
Attorney General, New York, New York; Ellen F.
Rosenblum, Attorney General, Salem, Oregon; Josh
Shapiro, Attorney General, Harrisburg, Pennsylvania; Peter
F. Neronha, Attorney General, Providence, Rhode Island;
Thomas J. Donovan Jr., Attorney General, Montpelier,
Vermont; Mark R. Herring, Attorney General, Richmond,
10 DUNCAN V. BONTA
Virginia; Robert W. Ferguson, Attorney General, Olympia,
Washington; for Amici Curiae District of Columbia,
Connecticut, Delaware, Hawaii, Illinois, Maryland,
Massachusetts, Michigan, Minnesota, New Jersey, New
Mexico, New York, Oregon, Pennsylvania, Rhode Island,
Vermont, Virginia, and Washington.
Michael N. Feuer, City Attorney; Kathleen Kenealy, Chief
Assistant City Attorney; Scott Marcus, Senior Assistant City
Attorney; Danielle L. Goldstein, James P. Clark, and Blithe
Smith Bock, Deputy City Attorneys; Office of the City
Attorney, Los Angeles, California; Dennis J. Herrera, City
Attorney; Aileen McGrath, Co-Chief of Appellate
Litigation; Office of the City Attorney, San Francisco,
California; Barbara J. Parker, City Attorney, Office of the
City Attorney, Oakland, California; Mara W. Elliott, City
Attorney; Jonathan I. Lapin, Chief Deputy City Attorney;
Office of the City Attorney, San Diego, California; Yibin
Shen, City Attorney; Michael Roush, Chief Assistant City
Attorney; Montague Hung, Deputy City Attorney; Office of
the City Attorney, Alameda, California; Scott H. Howard,
City Attorney, Pasadena, California; George S. Cardona,
Interim City Attorney, Santa Monica, California; John A.
Nagel, City Attorney; Rebecca L. Moon, Senior Assistant
City Attorney; Office of the City Attorney, Sunnyvale,
California; Michael Jenkins, City Attorney, Best Best &
Krieger LLP, Manhattan Beach, California; for Amici
Curiae City of Los Angeles, City and County of San
Francisco, City of San Diego, City of Oakland, City of West
Hollywood and Mayor Lindsey P. Horvath, City of
Alameda, City of Calabasas, City of Santa Monica, and City
of Sunnyvale.
James E. Hough, Jamie A. Levitt, and Cesar A. Francia,
Morrison & Foerster LLP, New York, New York; Daniel A.
DUNCAN V. BONTA 11
Goldschmidt, Morrison & Foerster LLP, Chiyoda-ku,
Tokyo, Japan; James R. Sigel, Morrison & Foerster LLP,
San Francisco, California; Samuel B. Goldstein, Morrison &
Foerster LLP, Washington, D.C.; for Amici Curiae Pride
Fund to End Gun Violence, Equality California, and Gays
Against Guns.
Stephen P. Halbrook, Fairfax, Virginia; Nezida S. Davis,
Bakari Law LLC, Decatur, Georgia; for Amici Curiae
National African American Gun Association Inc. and Pink
Pistols.
Jeremiah L. Morgan, Robert J. Olson, William J. Olson, and
Herbert W. Titus, William J. Olson P.C., Vienna, Virginia;
Joseph W. Miller, Joseph Miller Law Offices LLC,
Fairbanks, Alaska; Steven C. Bailey and Gary G. Kreep,
Ramona, California; for Amici Curiae Gun Owners of
America, Inc.; Gun Owners Foundation; Gun Owners of
California; California Constitutional Rights Foundation;
Virginia Citizens Defense League; Montana Shooting Sports
Association; Oregon Firearms Federation; Tennessee
Firearms Association; Conservation Legal Defense and
Education Fund; Policy Analysis Center; Heller Foundation;
and Restoring Liberty Action Committee.
John Parker Sweeney, James W. Porter III, Marc A.
Nardone, and Candice L. Rucker, Bradley Arant Boult
Cummings, Washington, D.C., for Amicus Curiae National
Rifle Association of America Inc.
Dan M. Peterson, Dan M. Peterson PLLC, Fairfax, Virginia,
for Amici Curiae National Association of Chiefs of Police,
Western States Sheriffs’ Association, California Reserve
Peace Officers Association, San Francisco Veteran Police
Officers Association, International Law Enforcement
12 DUNCAN V. BONTA
Educators and Trainers Association, Law Enforcement
Legal Defense Fund, California State Sheriffs’ Association,
New Mexico Sheriffs’ Association, Association of New
Jersey Rifle & Pistol Clubs Inc., Bridgeville Rifle & Pistol
Club, Connecticut Citizens Defense League, Delaware State
Sportsmen’s Association, Gun Owners’ Action League
Massachusetts, Gun Owners of California, Maryland State
Rifle & Pistol Association, New York State Rifle & Pistol
Association, Vermont Federation of Sportsmen’s Clubs,
Vermont State Rifle & Pistol Association, and Virginia
Shooting Sports Association.
Joseph G.S. Greenlee, Firearms Policy Coalition,
Sacramento, California; George M. Lee, Seiler Epstein LLP,
San Francisco, California; for Amici Curiae William Wiese,
Jeremiah Morris, Lance Cowley, Sherman Macaston,
Clifford Flores, L.Q. Dang, Frank Federau, Alan Normandy,
Todd Nielsen, California Gun Rights Foundation, Firearms
Policy Coalition, Firearms Policy Foundation, Armed
Equality, San Diego County Gun Owners, Orange County
Gun Owners, Riverside County Gun Owners, California
County Gun Owners, and Second Amendment Foundation.
Donald E. J. Kilmer Jr., Law Offices of Donald Kilmer APC,
San Jose, California, for Amicus Curiae Madison Society
Foundation Inc.
John Cutonilli, Garrett Park, Maryland, pro se Amicus
Curiae.
Patrick S. Loi and Anthony P. Schoenberg, Farella Braun &
Martel LLP, San Francisco, California, for Amicus Curaie
Americans Against Gun Violence.
DUNCAN V. BONTA 13
Marek Suchenek Ph.D., Long Beach, California, pro se
Amicus Curiae.
Mark Brnovich, Attorney General; Joseph A. Kanefield,
Chief Deputy & Chief of Staff; Brunn W. Roysden III,
Solicitor General; Michael S. Catlett, Deputy Solicitor
General; Office of the Attorney General, Phoenix, Arizona;
Jeff Landry, Attorney General; Elizabeth B. Murrill,
Solicitor General; Josiah Kollmeyer, Assistant Solicitor
General; Department of Justice, Baton Rouge, Louisiana;
Steve Marshall, Attorney General, State of Alabama; Treg
Taylor, Attorney General, State of Alaska; Leslie Rutledge,
Attorney General, State of Arkansas; Christopher M. Carr,
Attorney General, State of Georgia; Lawrence G. Wasden,
Attorney General, State of Idaho; Theodore E. Rokita,
Attorney General, State of Indiana; Derek Schmidt, Attorney
General, State of Kansas; Daniel Cameron, Attorney
General, Commonwealth of Kentucky; Lynn Fitch, Attorney
General, State of Mississippi; Eric S. Schmitt, Attorney
General, State of Missouri; Austin Knudsen, Attorney
General, State of Montana; Douglas J. Peterson, Attorney
General, State of Nebraska; Dave Yost, Attorney General,
State of Ohio; Mike Hunter, Attorney General, State of
Oklahoma; Alan Wilson, Attorney General, State of South
Carolina; Jason R. Ravnsborg, Attorney General, State of
South Dakota; Ken Paxton, Attorney General, State of
Texas; Sean D. Reyes, Attorney General, State of Utah;
Patrick Morrissey, Attorney General, State of West Virginia;
Bridget Hill, Attorney General, State of Wyoming; for
Amici Curiae States of Arizona, Louisiana, Alabama,
Alaska, Arkansas, Georgia, Idaho, Indiana, Kansas,
Mississippi, Missouri, Montana, Nebraska, Ohio,
Oklahoma, South Carolina, South Dakota, Texas, Utah,
West Virginia, Wyoming, and Commonwealth of Kentucky.
14 DUNCAN V. BONTA
Craig A. Livingston and Crystal L. Van Der Putten,
Livingston Law Firm P.C., Walnut Creek, California;
Lawrence G. Keane and Benjamin F. Erwin, National
Shooting Sports Foundation Inc., Newtown, Connecticut;
for Amicus Curiae National Shooting Sports Foundation Inc.
DUNCAN V. BONTA 15
OPINION
GRABER, Circuit Judge:
In response to mass shootings throughout the nation and
in California, the California legislature enacted Senate
Bill 1446, and California voters adopted Proposition 63.
Those laws amended California Penal Code section 32310
to prohibit possession of large-capacity magazines, defined
as those that can hold more than ten rounds of ammunition.
California law allows owners of large-capacity magazines to
modify them to accept ten rounds or fewer. Owners also
may sell their magazines to firearm dealers or remove them
from the state. And the law provides several exceptions to
the ban on large-capacity magazines, including possession
by active or retired law enforcement officers, security guards
for armored vehicles, and holders of special weapons
permits.
Plaintiffs, who include persons who previously acquired
large-capacity magazines lawfully, bring a facial challenge
to California Penal Code section 32310. They argue that the
statute violates the Second Amendment, the Takings Clause,
and the Due Process Clause. We disagree.
Reviewing de novo the district court’s grant of summary
judgment to Plaintiffs, Salisbury v. City of Santa Monica,
998 F.3d 852, 857 (9th Cir. 2021), we hold: (1) Under the
Second Amendment, intermediate scrutiny applies, and
section 32310 is a reasonable fit for the important
government interest of reducing gun violence. The statute
outlaws no weapon, but only limits the size of the magazine
that may be used with firearms, and the record demonstrates
(a) that the limitation interferes only minimally with the core
right of self-defense, as there is no evidence that anyone ever
has been unable to defend his or her home and family due to
16 DUNCAN V. BONTA
the lack of a large-capacity magazine; and (b) that the
limitation saves lives. About three-quarters of mass shooters
possess their weapons and large-capacity magazines
lawfully. In the past half-century, large-capacity magazines
have been used in about three-quarters of gun massacres
with 10 or more deaths and in 100 percent of gun massacres
with 20 or more deaths, and more than twice as many people
have been killed or injured in mass shootings that involved
a large-capacity magazine as compared with mass shootings
that involved a smaller-capacity magazine. Accordingly, the
ban on legal possession of large-capacity magazines
reasonably supports California’s effort to reduce the
devastating damage wrought by mass shootings. (2) Section
32310 does not, on its face, effect a taking. The government
acquires nothing by virtue of the limitation on the capacity
of magazines, and because owners may modify or sell their
nonconforming magazines, the law does not deprive owners
of all economic use. (3) Plaintiffs’ due process claim
essentially restates the takings claim, and it fails for the same
reasons. Accordingly, we reverse the judgment of the
district court and remand for entry of judgment in favor of
Defendant Rob Bonta, Attorney General for the State of
California.
FACTUAL AND PROCEDURAL HISTORY
A. Large-Capacity Magazines
A magazine is an “ammunition feeding device” for a
firearm. Cal. Penal Code § 16890. On its own, a magazine
is practically harmless and poses no threat to life or limb.
But when filled with bullets and attached to a firearm, its
deadliness is equally obvious. A magazine enables a shooter
to fire repeatedly—a number of times up to the ammunition
capacity of the magazine—without reloading. Once a
magazine is empty, the shooter may continue to fire only
DUNCAN V. BONTA 17
after pausing to change magazines or to reload the original
magazine. The time it takes to change magazines ranges
from about two to ten seconds, depending on the skill of the
shooter and the surrounding circumstances. Ass’n of N.J.
Rifle & Pistol Clubs, Inc. v. Att’y Gen. N.J. (“ANJRPC”),
910 F.3d 106, 113 (3d Cir. 2018).
California and many other jurisdictions define a “large-
capacity magazine” as a magazine capable of holding more
than ten rounds of ammunition. E.g., Cal. Penal Code
§ 16740; 18 U.S.C. § 921(a)(31)(A) (1994); Conn. Gen.
Stat. § 53-202w(a)(1); D.C. Code § 7-2506.01(b); N.J. Stat.
Ann. § 2C:39-1(y). Large-capacity magazines thus allow a
shooter to fire more than ten rounds without any pause in
shooting.
Most, but not all, firearms use magazines. For those
firearms that accept magazines, manufacturers often include
large-capacity magazines as a standard part of a purchase of
a firearm. “Most pistols are manufactured with magazines
holding ten to seventeen rounds, and many popular rifles are
manufactured with magazines holding twenty or thirty
rounds.” Kolbe v. Hogan, 849 F.3d 114, 129 (4th Cir. 2017)
(en banc). Although data on magazine ownership are
imprecise, some experts estimate that approximately half of
all privately owned magazines in the United States have a
capacity greater than ten rounds. Id.As we will discuss in detail below, Defendant introduced
evidence that mass shootings often involve large-capacity
magazines, to devastating effect. Shooters who use large-
capacity magazines cause significantly more deaths and
injuries than those shooters who are equipped with
magazines of smaller capacity. Intended victims and law
enforcement officers use brief pauses in shooting to flee or
to fight back. Because shooters who are equipped with
18 DUNCAN V. BONTA
large-capacity magazines may fire many bullets without
pause, shooters are able to—and do—inflict far more
damage using those magazines than they otherwise could.
B. California’s Ban
In 1994, Congress banned the possession or transfer of
large-capacity magazines. Pub. L. 103-322, § 110103,
Sept. 13, 1994, 108 Stat. 1796, 1998–2000 (formerly
codified at 18 U.S.C. § 922(w)). The federal ban exempted
those magazines that were legally possessed before the date
of enactment. Id. The law expired ten years later, in 2004.
Id. § 110105(2).
California began regulating large-capacity magazines in
2000, prohibiting their manufacture, importation, or sale in
the state. Cal. Penal Code § 12020(a)(2) (2000). After the
expiration of the federal ban, California strengthened its law
in 2010 and again in 2013 by, among other things,
prohibiting the purchase or receipt of large-capacity
magazines. Cal. Penal Code § 32310(a) (2013). But
possession of large-capacity magazines remained legal, and
law enforcement officers reported to the California
legislature that, as a result, enforcement of the existing laws
was “very difficult.”
In 2016, the California legislature enacted Senate
Bill 1446, which barred possession of large-capacity
magazines as of July 1, 2017, and imposed a fine for failing
to comply. 2016 Cal. Stat. ch. 58, § 1. Later in 2016, voters
in California approved Proposition 63, also known as the
Safety for All Act of 2016, which subsumed Senate
Bill 1446 and added provisions that imposed a possible
criminal penalty of imprisonment for up to a year for
unlawful possession of large-capacity magazines after
July 1, 2017. Cal. Penal Code § 32310(c). Proposition 63
DUNCAN V. BONTA 19
declared that large-capacity magazines “significantly
increase a shooter’s ability to kill a lot of people in a short
amount of time.” Prop. 63 § 2(11). “No one except trained
law enforcement should be able to possess these dangerous
ammunition magazines,” and the present law’s lack of a ban
on possession constituted a “loophole.” Id. § 2(12). The
law’s stated purpose is “[t]o make it illegal in California to
possess the kinds of military-style ammunition magazines
that enable mass killings like those at Sandy Hook
Elementary School; a movie theater in Aurora, Colorado;
Columbine High School; and an office building at
101 California Street in San Francisco, California.” Id.
§ 3(8).
California law defines a “large-capacity magazine” as
any ammunition feeding device with the
capacity to accept more than 10 rounds, but
shall not be construed to include any of the
following:
(a) A feeding device that has been
permanently altered so that it cannot
accommodate more than 10 rounds.
(b) A .22 caliber tube ammunition feeding
device.
(c) A tubular magazine that is contained in a
lever-action firearm.
Cal. Penal Code § 16740. The ban on possession of large-
capacity magazines exempts persons who are active or
retired law enforcement officers, security guards for armored
vehicles, and holders of special weapons permits for limited
20 DUNCAN V. BONTA
purposes; the law also allows the manufacture of magazines
for government use and the use of magazines as props in film
production. Id. §§ 32400–55. Finally:
Any person who may not lawfully possess a
large-capacity magazine commencing July 1,
2017 shall, prior to July 1, 2017:
(1) Remove the large-capacity magazine
from the state;
(2) Sell the large-capacity magazine to a
licensed firearms dealer; or
(3) Surrender the large-capacity magazine to
a law enforcement agency for destruction.
Id. § 32310(d).
California is not alone in banning the possession of
large-capacity magazines after the federal prohibition
expired in 2004. The District of Columbia and eight other
states have imposed significant restrictions on large-capacity
magazines. Colo. Rev. Stat. §§ 18-12-301, 302; Conn. Gen.
Stat. § 53-202w; D.C. Code § 7-2506.01(b); Haw. Rev. Stat.
§ 134-8(c); Mass. Gen. Laws Ann. ch. 140, §§ 121, 131(a),
131M; Md. Code Ann., Crim. Law § 4-305(b); N.J. Stat.
Ann. §§ 2C:39-1(y), 39-3(j), 39-9(h); N.Y. Penal Law
§§ 265.00, 265.36; 13 Vt. Stat. Ann. § 4021. Municipalities,
too, have banned the possession of large-capacity
magazines. E.g., Highland Park, Ill. City Code § 136.005;
Sunnyvale, Cal. Mun. Code § 9.44.050 (enacted before the
statewide ban).
DUNCAN V. BONTA 21
C. Procedural History
Plaintiffs brought this action in 2017, arguing that
California’s prohibition on the possession of large-capacity
magazines violates the Second Amendment, the Fifth
Amendment’s Takings Clause, and the Fourteenth
Amendment’s Due Process Clause. Plaintiffs own, or
represent those who own, large-capacity magazines, and
they do not want to comply with California’s requirement
that they modify the magazines to accept ten or fewer
rounds, remove the magazines from the state, sell them to a
licensed firearms dealer, or allow state authorities to destroy
them.
Shortly before July 1, 2017, the district court
preliminarily enjoined the state from enforcing the law,
holding that Plaintiffs were likely to succeed on their claims
under the Second Amendment and the Takings Clause.
Duncan v. Becerra, 265 F. Supp. 3d 1106 (S.D. Cal. 2017).
On appeal to this court, a two-judge majority affirmed the
preliminary injunction, concluding that the district court did
not abuse its discretion in holding that Plaintiffs had shown
a likelihood of success on their claims. Duncan v. Becerra,
742 F. App’x 218, 221–22 (9th Cir. 2018) (unpublished); see
also id. at 220 (“We do not determine the ultimate merits,
but rather determine only whether the district court correctly
distilled the applicable rules of law and exercised
permissible discretion in applying those rules to the facts at
hand.” (internal quotation marks omitted)). Judge Wallace
dissented. Id. at 223–26. He acknowledged the deferential
standard of review on appeal from a preliminary injunction
but he “d[id] not consider it a close call to conclude the
district court abused its discretion in finding Plaintiffs were
likely to succeed on the merits of their constitutional
challenges.” Id. at 226 (Wallace, J., dissenting). Judge
22 DUNCAN V. BONTA
Wallace reasoned that “California’s evidence—which
included statistical studies, expert testimony, and surveys of
mass shootings showing that the use of [large-capacity
magazines] increases the lethality of gun violence—was
more than sufficient to satisfy intermediate scrutiny.” Id.
at 223. And he further concluded that the California law did
not violate the Takings Clause, because there is no physical
taking and no evidence that alteration or sale of large-
capacity magazines would be economically infeasible. Id.
at 225.
In 2019, the district court granted summary judgment to
Plaintiffs on the Second Amendment and takings claims and
permanently enjoined Defendant from enforcing the law.
Duncan v. Becerra, 366 F. Supp. 3d 1131 (S.D. Cal. 2019).
On appeal, a divided panel affirmed the district court’s grant
of summary judgment as to the Second Amendment claim.
Duncan v. Becerra, 970 F.3d 1133 (9th Cir. 2020). Chief
District Judge Lynn dissented; she would have rejected
Plaintiffs’ Second Amendment claim. Id. at 1169–76.
The panel majority’s opinion conflicted with decisions
by all six circuit courts to have considered—and rejected—
Second Amendment challenges to similar laws. Worman v.
Healey, 922 F.3d 26 (1st Cir. 2019), cert. denied, 141 S. Ct.
109 (2020); ANJRPC, 910 F.3d 106; Kolbe, 849 F.3d 114;
N.Y. State Rifle & Pistol Ass’n, Inc. v. Cuomo (“NYSRPA”),
804 F.3d 242 (2d Cir. 2015); Friedman v. City of Highland
Park, 784 F.3d 406 (7th Cir. 2015); Heller v. District of
Columbia, 670 F.3d 1244 (D.C. Cir. 2011) (“Heller II”). We
granted rehearing en banc and, pursuant to our ordinary
practice, vacated the panel’s opinion. Duncan v. Becerra,
988 F.3d 1209 (9th Cir. 2021) (order); Ninth Cir. Rules 35-1
to 35-3, Adv. Comm. Note 3.
DUNCAN V. BONTA 23
DISCUSSION
We address (A) the Second Amendment claim and
(B) the takings claim. 1
A. Second Amendment Claim
The Second Amendment states: “A well regulated
Militia, being necessary to the security of a free State, the
right of the people to keep and bear Arms, shall not be
infringed.” U.S. Const. amend. II. The Second Amendment
“protects a personal right to keep and bear arms for lawful
purposes, most notably for self-defense within the home.”
McDonald v. City of Chicago, 561 U.S. 742, 780 (2010).
The Second Amendment “is fully applicable to the States.”
Id. at 750.
In District of Columbia v. Heller, 554 U.S. 570, 574, 628
(2008), the Supreme Court struck down, as inconsistent with
the Second Amendment right to keep and bear arms, the
District of Columbia’s laws that “generally prohibit[ed] the
possession of handguns” and “totally ban[ned] handgun
possession in the home.” The Court declined to define the
applicable framework for addressing Second Amendment
claims, holding that the handgun ban failed “[u]nder any of
the standards of scrutiny that we have applied to enumerated
constitutional rights.” Id. at 628.
“Following Heller and McDonald, we have created a
two-step framework to review Second Amendment
challenges.” Young v. Hawaii, 992 F.3d 765, 783 (9th Cir.
1
In a footnote, Plaintiffs state that summary judgment was proper
in their favor on the due process claim “[f]or all the same reasons” that
apply to the takings claim. Because we reject the takings claim, we reject
the due process claim.
24 DUNCAN V. BONTA
2021) (en banc), petition for cert. filed, (U.S. May 11, 2021)
(No. 20-1639). We first ask “if the challenged law affects
conduct that is protected by the Second Amendment.” Id. If
not, then the law is constitutional, and our analysis ends. Id.If, on the other hand, the law implicates the Second
Amendment, we next choose and apply an appropriate level
of scrutiny. Id. at 784. Ten of our sister circuits have
adopted a substantially similar two-step test. Gould v.
Morgan, 907 F.3d 659, 668–69 (1st Cir. 2018), cert. denied,
141 S. Ct. 108 (2020); NYSRPA, 804 F.3d at 254;
GeorgiaCarry.Org, Inc. v. U.S. Army Corps of Eng’rs,
788 F.3d 1318, 1322 (11th Cir. 2015); see Young, 992 F.3d
at 783 (listing cases from the Third, Fourth, Fifth, Sixth,
Seventh, Tenth and D.C. Circuits that apply a similar two-
step framework).
Judge Bumatay’s dissent would jettison the two-step
framework adopted by us and our sister circuits, in favor of
a “text, history, and tradition” test. Dissent by J. Bumatay
at 108. Plaintiffs have not sought this test, despite having
filed supplemental briefs after we granted rehearing en banc,
and Defendant has not had a chance to respond. The dissent
nevertheless asks us to disrupt a decade of caselaw and to
create a circuit split with ten of our sister circuits, not
because of any recent development in the law, but because
of the dissent’s preferred reading of the same Supreme Court
cases that we have applied many times. We reject the
dissent’s invitation. Our test is fully consistent with every
other circuit court’s approach and, for the reasons that
follow, we agree with those decisions that have thoroughly
and persuasively rejected the dissent’s alternative approach
to Second Amendment claims. E.g., NYSRPA, 804 F.3d
at 257 n.74; Heller II, 670 F.3d at 1264–67.
DUNCAN V. BONTA 25
Our two-step inquiry faithfully adheres to the Supreme
Court’s guidance in Heller and McDonald. The Court
looked extensively to history, text, and tradition in
discussing the scope of the Second Amendment right.
Accordingly, history, text, and tradition greatly inform step
one of the analysis, where we ask whether the challenged
law implicates the Second Amendment. See, e.g., Young,
992 F.3d at 784–826 (undertaking a detailed historical
review); Teixeira v. County of Alameda, 873 F.3d 670, 682–
87 (9th Cir. 2017) (en banc) (reviewing historical materials
at length). Those sources also inform step two, where we
choose strict scrutiny, intermediate scrutiny, or no scrutiny
at all (as in Heller) by examining the effect of the law on the
core of the Second Amendment right as traditionally
understood. E.g., United States v. Chovan, 735 F.3d 1127,
1138 (9th Cir. 2013).
But we do not read the Supreme Court’s cases as
foreclosing the application of heightened scrutiny as the final
step of the analysis. The Court expressly held that rational
basis review is never appropriate. Heller, 554 U.S. at 628
n.27. Had the Court intended to foreclose the other forms of
traditional review, it could have so held. Instead, and to the
contrary, the Court referred specifically to “the standards of
scrutiny that we have applied to enumerated constitutional
rights” and held that application of heightened scrutiny is
unnecessary when the law at issue “would fail constitutional
muster” under any standard of scrutiny. Id. at 628–29.
The Court clearly rejected Justice Breyer’s “judge-
empowering ‘interest balancing inquiry’” that, rather than
corresponding to any of “the traditionally expressed levels
(strict scrutiny, intermediate scrutiny, rational basis),” asked
instead “‘whether the statute burdens a protected interest in
a way or to an extent that is out of proportion to the statute’s
26 DUNCAN V. BONTA
salutary effects upon other important governmental
interests.’” Id. at 634 (citing id. at 689–90 (Breyer, J.,
dissenting)). But the standards that we apply—strict and
intermediate scrutiny—plainly are the traditional tests and
are not the interest-balancing test proposed by Justice
Breyer. In Heller, the Court emphasized that the Second
Amendment, “[l]ike the First, . . . is the very product of an
interest balancing by the people.” Id. at 635. The Court
regularly assesses First Amendment challenges using
intermediate and strict scrutiny, depending on the nature of
the law and the context of the challenge. E.g., Packingham
v. North Carolina, 137 S. Ct. 1730, 1736 (2017); Reed v.
Town of Gilbert, 576 U.S. 155, 163–65 (2015). We see no
reason why those same standards do not apply to Second
Amendment challenges as well. Unless and until the
Supreme Court tells us and the First, Second, Third, Fourth,
Fifth, Sixth, Seventh, Tenth, Eleventh, and D.C. Circuits
that, for a decade or more, we all have fundamentally
misunderstood the basic framework for assessing Second
Amendment challenges, we reaffirm our two-step approach.
Here, Plaintiffs bring a facial Second Amendment
challenge to California’s ban on large-capacity magazines.
Accordingly, Plaintiffs “must show that no set of
circumstances exists under which the [statute] would be
valid.” Young, 992 F.3d at 779 (alteration in original)
(internal quotation marks omitted). Our review is “limited
to the text of the statute itself,” and Plaintiffs’ (and amici’s)
individual circumstances do not factor into our analysis. Id.
We are guided by the decisions of six of our sister
circuits, all of which upheld laws banning or restricting
large-capacity magazines as consistent with the Second
Amendment. Worman, 922 F.3d 26; ANJRPC, 910 F.3d
106; Kolbe, 849 F.3d 114; NYSRPA, 804 F.3d 242;
DUNCAN V. BONTA 27
Friedman, 784 F.3d 406; Heller II, 670 F.3d 1244; see Fyock
v. City of Sunnyvale, 779 F.3d 991 (9th Cir. 2015) (affirming
the denial of a preliminary injunction in a case in which the
plaintiffs challenged a municipal ban on large-capacity
magazines). Most of those decisions applied the same
general two-step approach that guides us and reached the
same conclusions that we reach. In particular, they assumed
without deciding, at step one, that the law implicated the
Second Amendment; and held, at step two, that intermediate
scrutiny applied and that the ban or restrictions survived that
form of review. Worman, 922 F.3d at 33–40; ANJRPC,
910 F.3d at 116–24; NYSRPA, 804 F.3d at 254–64; Heller II,
670 F.3d at 1260–64; see Fyock, 779 F.3d at 996–1001
(following that same general approach in the context of an
appeal from a preliminary injunction). 2
1. Step One: Whether the Challenged Law Implicates
the Second Amendment
At step one, we ask whether the challenged law affects
conduct that the Second Amendment protects. Young,
2
Sitting en banc, the Fourth Circuit reached two alternative holdings
in upholding Maryland’s ban on large-capacity magazines. It first held,
at step one, that bans on large-capacity magazines do not implicate the
Second Amendment. Kolbe, 849 F.3d at 135–37. The court next held,
in the alternative and in accord with the four decisions cited in the text
that, assuming any scrutiny was warranted, intermediate scrutiny applied
and that the ban withstood such scrutiny. Id. at 138–41.
For its part, the Seventh Circuit declined to apply that court’s
ordinary two-step inquiry, holding instead that a municipal ban on large-
capacity magazines was constitutional because those magazines were not
common at the time of ratification, and the ordinance leaves residents
“ample means to exercise the inherent right of self-defense that the
Second Amendment protects.” Friedman, 784 F.3d at 411 (internal
quotation marks omitted).
28 DUNCAN V. BONTA
992 F.3d at 783. Defendant argues that California’s ban
withstands scrutiny at this step for two reasons. First,
Defendant asks us to follow the lead of the Fourth Circuit
and hold that large-capacity magazines lack Second
Amendment protection because they are similar to “‘M-16
rifles and the like,’ i.e., ‘weapons that are most useful in
military service.’” Kolbe, 849 F.3d at 142 (quoting Heller,
554 U.S. at 627). Second, Defendant argues that
longstanding regulations have governed magazine capacity
such that California’s ban on large-capacity magazines
survives scrutiny at this initial step of the analysis. See
Young, 992 F.3d at 783 (holding that, if longstanding,
accepted regulations have governed the subject of the
challenged law, then the Second Amendment is not
implicated).
Both arguments appear to have significant merit. As we
describe below, large-capacity magazines have limited
lawful, civilian benefits, whereas they provide significant
benefits in a military setting. Accordingly, the magazines
likely are “most useful in military service,” at least in an
ordinary understanding of that phrase. Kolbe, 849 F.3d
at 135–37.
Moreover, Congress and some states have imposed
firing-capacity restrictions for nearly a century. In 1932,
Congress banned, in the District of Columbia, “any firearm
which shoots automatically or semiautomatically more than
twelve shots without reloading.” Around the same time,
several states, including California, enacted bans on firearms
that could fire automatically or semi-automatically more
than 10, 12, 16, or 18 bullets. 1933 Cal. Stat. 1170, § 3. The
state bans were later repealed, but the District of Columbia’s
ban appears to have remained in place in some form
continuously since 1932. We also take note of the more
DUNCAN V. BONTA 29
recent bans, first imposed by Congress in 1994 and later
imposed by nine states and some municipalities after the
federal ban expired in 2004. Cf. United States v. Henry,
688 F.3d 637, 640 (9th Cir. 2012) (holding, nine years ago,
that machine guns are “unusual” because they had been
banned since 1986, a total of 26 years). In addition,
governments long have imposed magazine capacity limits on
hunters. See, e.g., 50 C.F.R. § 20.21(b) (prohibiting the
hunting of most migratory game birds “[w]ith a shotgun of
any description capable of holding more than three shells,
unless it is plugged with a one-piece filler, incapable of
removal without disassembling the gun, so its total capacity
does not exceed three shells”); Cal. Fish & Game Code
§ 2010 (“It is unlawful . . . to use or possess a shotgun
capable of holding more than six cartridges at one time, to
take a mammal or bird.”).
Ultimately, though, we decline to decide those two sub-
issues definitively. Neither we nor the Supreme Court has
decided whether the passage in Heller pertaining to weapons
“most useful in military service” should be read as
establishing a legal standard and, if so, how to interpret that
phrase for purposes of step one of the constitutional analysis.
See Heller, 554 U.S. at 627 (“It may be objected that if
weapons that are most useful in military service—M-16
rifles and the like—may be banned, then the Second
Amendment right is completely detached from the prefatory
clause.”). Similarly, determining whether sufficiently
longstanding regulations have governed large-capacity
magazines likely would require an extensive historical
inquiry. See, e.g., Young, 992 F.3d at 784–826 (undertaking
a detailed historical review of regulations concerning the
open carrying of arms); Teixeira, 873 F.3d at 682–87
(reviewing historical materials in determining whether the
Second Amendment encompasses a right to sell firearms).
30 DUNCAN V. BONTA
In many cases raising Second Amendment challenges,
particularly where resolution of step one is uncertain and
where the case raises “large and complicated” questions,
United States v. Torres, 911 F.3d 1253, 1261 (9th Cir. 2019),
we have assumed, without deciding, that the challenged law
implicates the Second Amendment. E.g., United States v.
Singh, 979 F.3d 697, 725 (9th Cir. 2020), cert. denied,
Matsura v. United States, 2021 WL 2044557, No. 20-1167
(U.S. May 24, 2021); Mai v. United States, 952 F.3d 1106,
1114–15 (9th Cir. 2020), cert. denied, 2021 WL 1602649,
No. 20-819 (U.S. Apr. 26, 2021); Pena v. Lindley, 898 F.3d
969, 976 (9th Cir. 2018), cert. denied, 141 S. Ct. 108 (2020).
Our sister circuits have followed this approach specifically
with respect to laws restricting large-capacity magazines.
See Worman, 922 F.3d at 36 (assuming, without deciding, at
step one due to “reluctan[ce] to plunge into this factbound
morass”); ANJRPC, 910 F.3d at 117 (assuming, without
deciding, at step one); NYSRPA, 804 F.3d at 257 (assuming,
without deciding, at step one “[i]n the absence of clearer
guidance from the Supreme Court or stronger evidence in the
record”); Heller II, 670 F.3d at 1261 (assuming, without
deciding, at step one because “we cannot be certain whether”
the requirements at this step are met). Accordingly, we
follow the “well-trodden and ‘judicious course’” of
assuming, without deciding, that California’s law implicates
the Second Amendment. Pena, 898 F.3d at 976 (quoting
Woollard v. Gallagher, 712 F.3d 865, 876 (4th Cir. 2013)).
2. Step Two: Application of an Appropriate Level of
Scrutiny
a. Determination of the Appropriate Level of
Scrutiny
At step two, we first determine the appropriate level of
scrutiny. Torres, 911 F.3d at 1262. “[L]aws burdening
DUNCAN V. BONTA 31
Second Amendment rights must withstand more searching
scrutiny than rational basis review.” Id. We apply either
strict scrutiny, which requires both narrow tailoring to a
compelling governmental interest and the use of the least-
restrictive means, Victory Processing, LLC v. Fox, 937 F.3d
1218, 1226–28 (9th Cir. 2019), or intermediate scrutiny,
which requires a reasonable fit with an important
governmental interest, Torres, 911 F.3d at 1263.
“The precise level of heightened scrutiny depends ‘on
(1) how close the law comes to the core of the Second
Amendment right and (2) the severity of the law’s burden on
the right.’” Mai, 952 F.3d at 1115 (quoting Chovan,
735 F.3d at 1138). “Strict scrutiny applies only to laws that
both implicate a core Second Amendment right and place a
substantial burden on that right.” Id. Intermediate scrutiny
applies to laws that either do not implicate a core Second
Amendment right or do not place a substantial burden on that
right. Id.
Defendant does not dispute that California’s ban on
large-capacity magazines implicates, at least in some
measure, the core Second Amendment right of self-defense
in the home. See, e.g., Pena, 898 F.3d at 977 (assuming
without deciding that firearm regulations implicate the core
right); see also Worman, 922 F.3d at 30, 36 (assuming
without deciding that Massachusetts’ ban on large-capacity
magazines implicates the core right); Heller II, 670 F.3d
at 332 (declining to decide whether the District of
Columbia’s prohibition on large-capacity magazines
“impinge[s] at all upon the core right protected by the
Second Amendment”). Instead, Defendant argues that the
ban imposes only a small burden on the Second Amendment
right and that, accordingly, intermediate scrutiny is the
appropriate lens through which to view California’s law. We
32 DUNCAN V. BONTA
agree. Just as our sister circuits unanimously have applied
intermediate scrutiny to other laws banning or restricting
large-capacity magazines, 3 we hold that intermediate
scrutiny applies to California’s ban.
California’s ban on large-capacity magazines imposes
only a minimal burden on the exercise of the Second
Amendment right. The law has no effect whatsoever on
which firearms may be owned; as far as the challenged
statute is concerned, anyone may own any firearm at all.
Owners of firearms also may possess as many firearms,
bullets, and magazines as they choose. See ANJRPC,
910 F.3d at 118 (holding that intermediate scrutiny applied,
in part because the challenged law “has no impact on the
many other firearm options that individuals have to defend
themselves in their home”); Kolbe, 849 F.3d at 138 (same:
“citizens [remain] free to protect themselves with a plethora
of other firearms and ammunition”); NYSRPA, 804 F.3d
at 260 (same: “while citizens may not acquire high-capacity
3
Worman, 922 F.3d at 36–38; ANJRPC, 910 F.3d at 117–18; Kolbe,
849 F.3d at 138–39; NYSRPA, 804 F.3d at 257–61; Heller II, 670 F.3d
at 1261–62; see Fyock, 779 F.3d at 998–999 (holding that the district
court did not abuse its discretion in applying intermediate scrutiny to a
municipal ban on large-capacity magazines).
As we described in note 2, the Seventh Circuit did not apply, at least
by name, any of the traditional levels of scrutiny. Friedman, 784 F.3d
at 410–12. But in upholding the municipal ban on large-capacity
magazines, the court plainly applied a standard far less demanding than
strict scrutiny, and its analysis is fully consistent with our selection of
intermediate scrutiny. See, e.g., id. at 411 (holding that the ordinance
leaves residents “ample means to exercise the inherent right of self-
defense that the Second Amendment protects” (internal quotations
omitted)).
DUNCAN V. BONTA 33
magazines, they can purchase any number of magazines with
a capacity of ten or fewer rounds”).
Owners of firearms also may use those items at will.
They may fire as many bullets as they would like for
whatever lawful purpose they choose. The ban on large-
capacity magazines has the sole practical effect of requiring
shooters to pause for a few seconds after firing ten bullets,
to reload or to replace the spent magazine.
Nothing in the record suggests that the restriction
imposes any more than a minimal burden on the Second
Amendment right to keep and bear arms. Plaintiffs do not
point to any evidence that a short pause after firing ten
bullets during target practice or while hunting imposes any
practical burden on those activities, both of which fall
outside the core Second Amendment right in any event.
Similarly, the record suggests at most a minimal burden,
if any burden at all, on the right of self-defense in the home.
Experts in this case and other cases report that “most
homeowners only use two to three rounds of ammunition in
self-defense.” ANJRPC, 910 F.3d at 121 n.25. The use of
more than ten bullets in defense of the home is “rare,” Kolbe,
849 F.3d at 127, or non-existent, see Worman, 922 F.3d at 37
(noting that neither the plaintiffs nor their experts “could . . .
identify even a single example of a self-defense episode in
which ten or more shots were fired”). An expert in this case
found that, using varying methodologies and data sets, more
than ten bullets were used in either 0% or fewer than 0.5%
of reported incidents of self-defense of the home. Even in
those situations, the record does not disclose whether the
shooter fired all shots from the same weapon, whether the
shooter fired in short succession such that reloading or
replacing a spent cartridge was impractical, or whether the
additional bullets had any practical effect after the first ten
34 DUNCAN V. BONTA
shots. In other words, the record here, as in other cases, does
not disclose whether the added benefit of a large-capacity
magazine—being able to fire more than ten bullets in rapid
succession—has ever been realized in self-defense in the
home. See ANJRPC, 910 F.3d at 118 (“The record here
demonstrates that [large-capacity magazines] are not well-
suited for self-defense.”); Kolbe, 849 F.3d at 138 (noting the
“scant evidence . . . [that] large-capacity magazines are
possessed, or even suitable, for self-protection”); Heller II,
670 F.3d at 1262 (pointing to the lack of evidence that
“magazines holding more than ten rounds are well-suited to
or preferred for the purpose of self-defense or sport”).
Indeed, Plaintiffs have not pointed to a single instance in this
record (or elsewhere) of a homeowner who was unable to
defend himself or herself because of a lack of a large-
capacity magazine. 4
4
Judge VanDyke’s dissent faults us for relying on the rarity of
instances of self-defense that use more than ten bullets while not giving
enough weight to the infrequency of mass shootings, which the dissent
describes as “statistically very rare.” Dissent by J. VanDyke at 160. To
the extent that the dissent concludes that reducing the harm caused by
mass shootings is not an “important” governmental objective at step two
of the analysis, we disagree. Focusing solely on the frequency of mass
shootings omits the second, critical part of the analysis set out below
at pages 42 to 46[C]: the incredible harm caused by mass shootings. We
do not ignore the relative infrequency of mass shootings. We instead
conclude—and Plaintiffs do not dispute—that, considering the
frequency of mass shootings in combination with the harm that those
events cause, reducing the number of deaths and injuries caused by mass
shootings is an important goal. The dissent’s analogy to commercial
flights, [Dissent by J. VanDyke at 161 n.11, is illustrative: Although
accidents involving commercial flights are rare, legislatures recognize
that the serious harm caused by even a single crash justifies extensive
regulation of the industry.
DUNCAN V. BONTA 35
Evidence supports the common-sense conclusion that
the benefits of a large-capacity magazine are most helpful to
a soldier: “the use of large-capacity magazines results in
more gunshots fired, results in more gunshot wounds per
victim, and increases the lethality of gunshot injuries.”
Fyock, 779 F.3d at 1000; see Kolbe, 849 F.3d at 137 (“Large-
capacity magazines enable a shooter to hit ‘multiple human
targets very rapidly.’”); NYSRPA, 804 F.3d at 263–64 (“Like
assault weapons, large-capacity magazines result in ‘more
shots fired, persons wounded, and wounds per victim than
do other gun attacks.’” (quoting Heller II, 670 F.3d
at 1263)). A 1989 report by the Bureau of Alcohol, Tobacco,
and Firearms concluded that “large capacity magazines are
indicative of military firearms,” in part because they
“provide[] the soldier with a fairly large ammunition
supply.” A 1998 report by that agency found that
“detachable large capacity magazine[s] [were] originally
designed and produced for . . . military assault rifles.” The
Fourth Circuit concluded that, “[w]hatever their other
potential uses . . . large-capacity magazines . . . are
unquestionably most useful in military service.” Kolbe,
849 F.3d at 137.
To the extent that the dissent asks us to balance the interests of the
lawful use of large-capacity magazines against the interests of the State
in reducing the deaths and injuries caused by mass shootings, we
disagree for two independent reasons. First, the Supreme Court
expressly rejected that type of interest balancing. Heller, 554 U.S.
at 634. Second, to the extent that an interest-balancing inquiry is
relevant, we reiterate that Plaintiffs have not pointed to a single
instance—in California or elsewhere, recently or ever—in which
someone was unable to defend himself or herself due to a lack of a large-
capacity magazine, whereas the record describes the many deaths and
injuries caused by criminals’ use of large-capacity magazines during
mass shootings.
36 DUNCAN V. BONTA
Recent experience has shown repeatedly that the same
deadly effectiveness of a soldier’s use of large-capacity
magazines can be exploited by criminals, to tragic result. In
Thousand Oaks, California, a shooter equipped with large-
capacity magazines murdered twelve people at a bar in 2018.
Firearms equipped with large-capacity magazines “have
been the weapons of choice in many of the deadliest mass
shootings in recent history, including horrific events in
Pittsburgh (2018), Parkland (2018), Las Vegas (2017),
Sutherland Springs (2017), Orlando (2016), Newtown
(2012), and Aurora (2012).” Worman, 922 F.3d at 39. As
the Fourth Circuit explained:
Other massacres have been carried out with
handguns equipped with magazines holding
more than ten rounds, including those at
Virginia Tech (thirty-two killed and at least
seventeen wounded in April 2007) and Fort
Hood, Texas (thirteen killed and more than
thirty wounded in November 2009), as well
as in Binghamton, New York (thirteen killed
and four wounded in April 2009 at an
immigration center), and Tucson, Arizona
(six killed and thirteen wounded in January
2011 at a congresswoman’s constituent
meeting in a grocery store parking lot).
Kolbe, 849 F.3d at 120.
In sum, large-capacity magazines provide significant
benefit to soldiers and criminals who wish to kill many
people rapidly. But the magazines provide at most a
minimal benefit for civilian, lawful purposes. Because
California’s ban on large-capacity magazines imposes only
DUNCAN V. BONTA 37
a minimal burden on the Second Amendment right to keep
and bear arms, we apply intermediate scrutiny.
Before applying intermediate scrutiny, we address
Plaintiffs’ argument that we need not apply any scrutiny at
all. Plaintiffs assert that California’s law falls within the
category of regulations, like the handgun ban at issue in
Heller, 554 U.S. at 628, that fail “[u]nder any of the
standards of scrutiny.” We have held that the only laws that
are necessarily unconstitutional in this way are those laws
that “amount[] to a destruction of the Second Amendment
right.” Young, 992 F.3d at 784 (quoting Silvester v. Harris,
843 F.3d 816, 821 (9th Cir. 2016)). Because California’s
law imposes, as explained above, only a slight burden on the
Second Amendment right, the law plainly does not destroy
the right.
The handgun ban at issue in Heller failed under any level
of scrutiny because it “amount[ed] to a prohibition of an
entire class of ‘arms’ that is overwhelmingly chosen by
American society” for the lawful purpose of self-defense,
including in the home. 554 U.S. at 628. The Supreme Court
explained:
There are many reasons that a citizen may
prefer a handgun for home defense: It is
easier to store in a location that is readily
accessible in an emergency; it cannot easily
be redirected or wrestled away by an attacker;
it is easier to use for those without the upper-
body strength to lift and aim a long gun; it can
be pointed at a burglar with one hand while
the other hand dials the police. Whatever the
reason, handguns are the most popular
weapon chosen by Americans for self-
38 DUNCAN V. BONTA
defense in the home, and a complete
prohibition of their use is invalid.
Id. at 629.
California’s prohibition on large-capacity magazines is
entirely different from the handgun ban at issue in Heller.
The law at issue here does not ban any firearm at all. It bans
merely a subset (large-capacity) of a part (a magazine) that
some (but not all) firearms use. 5 Heller clearly did not
prohibit governments from banning some subset of
weapons. See, e.g., Pena, 898 F.3d at 978 (applying
intermediate scrutiny to a ban on the commercial sale of
handguns lacking certain safety features and upholding the
5
Judge VanDyke’s dissent suggests that California’s ban on large-
capacity magazines is akin to a ban on all cars or on large vehicles.
Dissent by J. VanDyke at 151–152. But those analogies are inapt. A
ban on large-capacity magazines cannot reasonably be considered a ban
on firearms any more than a ban on leaded gasoline, a ban on
dangerously designed gas tanks, or speed limits could be considered a
ban on cars. E.g., 42 U.S.C. § 7545(n); 49 C.F.R. § 393.67; Cal. Veh.
Code § 22348. Like a ban on large-capacity magazines with respect to
firearms, those laws retain the basic functionality of cars—driving within
reasonable limits—while preventing specific societal harms from known
dangers.
The same reasoning applies to the dissent’s analogy to a ban on all
commercial flights. Dissent by J. VanDyke at 161 n.11. A ban on large-
capacity magazines cannot reasonably be considered a ban on firearms
any more than the existing, extensive regulations of commercial airlines,
aircraft, pilots, and so on could be considered a ban on commercial
flights. All of the dissent’s analogies start from the false premise that a
ban on large-capacity magazines somehow amounts to a ban on the basic
functionality of all firearms, despite the fact that, as we have explained,
many firearms do not use magazines; all firearms may be used with
magazines of ten or fewer rounds; and no limit applies to the number of
firearms or magazines that a person may possess and use.
DUNCAN V. BONTA 39
ban); Kolbe, 849 F.3d at 138–39 (holding that Heller’s
“special consideration” for handguns “does not mean that a
categorical ban on any particular type of bearable arm is
unconstitutional”); Friedman, 784 F.3d at 410 (“[A]t least
some categorical limits on the kinds of weapons that can be
possessed are proper.”).
Nor does the fact that, among the magazines in
circulation, approximately half are of large capacity alter our
conclusion. As an initial matter, we question whether
circulation percentages of a part that comes standard with
many firearm purchases meaningfully reflect an affirmative
choice by consumers. More to the point, Heller’s ruling that
handguns, “the quintessential self-defense weapon,” cannot
be prohibited rested on the premise that consumers
overwhelmingly chose to purchase handguns for the purpose
of self-defense in the home. Heller, 554 U.S. at 628–29; see
Kolbe, 849 F.3d at 138 (emphasizing this point). By
contrast, and as described in detail above, Plaintiffs have
offered little evidence that large-capacity magazines are
commonly used, or even suitable, for that purpose. See
Worman, 922 F.3d at 36–37 (holding that, unlike “the unique
popularity of the handgun as a means of self-defense,” “the
record . . . offers no indication that [large-capacity
magazines] have commonly been used for home self-
defensive purposes”); Kolbe, 849 F.3d at 138–39 (“The
handgun, of course, is ‘the quintessential self-defense
weapon.’ In contrast, there is scant evidence . . . that . . .
large-capacity magazines are possessed, or even suitable, for
self-protection.” (citation omitted)); NYSRPA, 804 F.3d
at 260 n.98 (“Heller . . . explain[ed] that handguns are
protected as ‘the most popular weapon chosen by Americans
for self-defense in the home.’ Of course, the same cannot be
said of [large-capacity magazines].” (citation omitted)).
40 DUNCAN V. BONTA
In sum, we decline to read Heller’s rejection of an
outright ban on the most popular self-defense weapon as
meaning that governments may not impose a much narrower
ban on an accessory that is a feature of some weapons and
that has little to no usefulness in self-defense. We therefore
reject Plaintiffs’ entreaty that we strike down California’s
law without applying any scrutiny at all. Because
California’s law imposes only a minimal burden on the
Second Amendment right, we apply intermediate scrutiny.
b. Application of Intermediate Scrutiny
“To satisfy intermediate scrutiny, the government’s
statutory objective must be ‘significant, substantial, or
important,’ and there must be a ‘reasonable fit’ between the
challenged law and that objective.” Mai, 952 F.3d at 1115
(quoting Silvester, 843 F.3d at 821–22). The legislature
must have drawn “reasonable” conclusions, and the evidence
must “fairly support” the legislative judgment. Pena,
898 F.3d at 979–80.
“The test is not a strict one,” and the government need
not use the “least restrictive means.” Silvester, 843 F.3d
at 827 (internal quotation marks omitted). “[W]e are
weighing a legislative judgment, not evidence in a criminal
trial,” Pena, 898 F.3d at 979, so “we do not impose an
‘unnecessarily rigid burden of proof,’” id. (quoting Mahoney
v. Sessions, 871 F.3d 873, 881 (9th Cir. 2017)), and “we do
not require scientific precision,” Mai, 952 F.3d at 1118
(internal quotation marks omitted). We may consider “the
legislative history of the enactment as well as studies in the
record or cited in pertinent case law.” Fyock, 779 F.3d
at 1000 (quoting Jackson, 746 F.3d at 966).
We defer to reasonable legislative judgments. Pena,
898 F.3d at 979. “[I]n the face of policy disagreements, or
DUNCAN V. BONTA 41
even conflicting legislative evidence, ‘we must allow the
government to select among reasonable alternatives in its
policy decisions.’” Id. at 980 (quoting Peruta v. County of
San Diego, 824 F.3d 919, 944 (9th Cir. 2016) (en banc)
(Graber, J., concurring)). “Sound policymaking often
requires legislators to forecast future events and to anticipate
the likely impact of these events based on deductions and
inferences for which complete empirical support may be
unavailable.” Mai, 952 F.3d at 1118 (quoting Turner Broad.
Sys., Inc. v. FCC, 512 U.S. 622, 665 (1994)); see also
Jackson, 746 F.3d at 969 (holding that, even if the relevant
science were “an open question,” that conclusion “is
insufficient to discredit [a legislative body’s] reasonable
conclusions”).
Both dissents suggest that, because we have not struck
down any state or federal law under the Second Amendment,
we have “give[n] a blank check to lawmakers to infringe on
the Second Amendment right.” Dissent by J. Bumatay
at 111–112; accord Dissent by J. VanDyke at 169. To the
contrary, we have carefully examined each challenge on its
own merit. The Constitution binds legislators just as it binds
us. That Congress and state legislatures located in our circuit
have legislated within constitutional bounds is, properly
viewed, a credit to those legislatures, not evidence of an
abdication of our duty. Notably, California’s law is more
restrained than similar laws considered by our sister circuits.
See, e.g., Worman, 922 F.3d 26 (considering a
Massachusetts law that bans large-capacity magazines and
assault weapons); Kolbe, 849 F.3d 114 (same: Maryland
law); NYSRPA, 804 F.3d 242 (same: New York law &
Connecticut law); Friedman, 784 F.3d 406 (same: City of
Highland Park, Illinois law); Heller II, 670 F.3d 1244 (same:
District of Columbia law). And our sister circuits, applying
the same two-step inquiry that we apply today, have not
42 DUNCAN V. BONTA
hesitated to strike down provisions that go too far. See, e.g.,
NYSRPA, 804 F.3d at 264 (striking down, under intermediate
scrutiny, a provision of New York law that prohibited the
loading of a magazine with more than seven rounds of
ammunition).
The California legislature, and the people of California,
enacted the ban on large-capacity magazines to prevent and
mitigate gun violence. As Plaintiffs properly concede and,
as we have recognized before, that interest is undoubtedly
important. E.g., Wilson v. Lynch, 835 F.3d 1083, 1093 (9th
Cir. 2016). California’s law aims to reduce gun violence
primarily by reducing the harm caused by mass shootings.
Although mass shootings may be an irregular occurrence,
the harm that flows from them is extensive. We readily
conclude that reducing the harm caused by mass shootings
is an important governmental objective. The only question,
then, is whether California’s ban is a “reasonable fit” for
reducing the harm caused by mass shootings. Silvester,
843 F.3d at 821.
Many mass shootings involve large-capacity magazines,
and large-capacity magazines tragically exacerbate the harm
caused by mass shootings. 6 One expert reported that “it is
common for offenders to fire more than ten rounds when
using a gun with a large-capacity magazine in mass
shootings. In particular, in mass shootings that involved use
of large-capacity magazine guns, the average number of
6
Plaintiffs dispute the reliability of Defendant’s experts and the
underlying data, all of which are identical or similar to the reports and
data that our sister circuits have cited. E.g., ANJRPC, 910 F.3d at 121;
Kolbe, 849 F.3d at 124 n.3. We conclude that the evidence is sufficiently
reliable for purposes of weighing California’s legislative judgment.
Pena, 898 F.3d at 979–80.
DUNCAN V. BONTA 43
shots fired was 99.” More than twice as many people were
killed or injured in mass shootings that involved a large-
capacity magazine compared to mass shootings where the
shooter had magazines with a smaller capacity. One expert
looked solely at fatalities and the deadliest mass shootings
(those with at least six deaths), and he discovered that the
number of fatalities from mass shootings that involved a
large-capacity magazine was at least 50% greater than the
number of fatalities from those shootings that involved
smaller magazines. “Moreover, since 1968, [large-capacity
magazines] have been used in 74 percent of all gun
massacres with 10 or more deaths, as well as in 100 percent
of all gun massacres with 20 or more deaths.”
The reasons are simple and verified by events: large-
capacity magazines allow a shooter to fire more bullets from
a single firearm uninterrupted, and a murderer’s pause to
reload or switch weapons allows potential victims and law
enforcement officers to flee or to confront the attacker. One
expert described the period after a shooter has exhausted the
current magazine as “precious down-time” that “affords
those in the line of fire with a chance to flee, hide, or fight
back.” Accord ANJRPC, 910 F.3d at 119 (“Weapon changes
and reloading result in a pause in shooting and provide an
opportunity for bystanders or police to intervene and victims
to flee.”); Kolbe, 849 F.3d at 128 (“[R]educing the number
of rounds that can be fired without reloading increases the
odds that lives will be spared in a mass shooting . . . [because
there are] more chances for bystanders or law enforcement
to intervene during a pause in firing, . . . more chances for
the shooter to have problems quickly changing a magazine
under intense pressure, and . . . more chances for potential
victims to find safety.” (internal quotation marks omitted)).
44 DUNCAN V. BONTA
As other courts have pointed out, and as the record here
establishes, examples abound of the harm caused by shooters
using large-capacity magazines and of people fleeing,
hiding, or fighting back during a shooter’s pause. The
Fourth Circuit noted high-profile examples in “Newtown
(where nine children were able to run from a targeted
classroom while the gunman paused to change out a large-
capacity thirty-round magazine), Tucson (where the shooter
was finally tackled and restrained by bystanders while
reloading his firearm), and Aurora (where a 100-round drum
magazine was emptied without any significant break in
firing).” Kolbe, 849 F.3d at 128. The Third Circuit updated
that list a year later by noting that “[v]ideos from the Las
Vegas shooting in 2017 show that concert attendees would
use the pauses in firing when the shooter’s high capacity
magazines were spent to flee.” ANJRPC, 910 F.3d at 120
(internal quotation marks omitted). We provide yet another
intervening example: after the 2018 shooting in Thousand
Oaks, California, news outlets reported survivors’ accounts
of escaping when the shooter paused firing. See Thousand
Oaks Mass Shooting Survivor: “I Heard Somebody Yell,
‘He’s Reloading,’” (ABC News, Nov. 8, 2018),
https://abc7.com/thousand-oaks-ca-shooting-california/464
9166/ (“I heard somebody yell, ‘He’s reloading!’ and that
was when a good chunk of us had jumped up and went and
followed the rest of the people out the window.”); People
Threw Barstools Through Window to Escape Thousand
Oaks, California, Bar During Shooting, (USA Today,
Nov. 8, 2018), https://www.usatoday.com/story/news/natio
n-now/2018/11/08/thousand-oaks-bar-shooting-people-brok
e-windows-stools-escape/1928031002/ (“At that point I
grabbed as many people around me as I could and grabbed
them down under the pool table we were closest to until he
ran out of bullets for that magazine and had to reload.”). The
record contains additional examples of persons confronting
DUNCAN V. BONTA 45
a shooter or escaping during a pause in firing. See also
ANJRPC, 910 F.3d at 120 & n.24 (listing other examples).
Approximately three-quarters of mass shooters
possessed their weapons, as well as their large-capacity
magazines, lawfully. Removing the ability of potential mass
shooters to possess those magazines legally thus reasonably
supports California’s effort to reduce the devastating harm
caused by mass shootings. “[L]imiting a shooter to a ten-
round magazine could mean the difference between life and
death for many people.” Kolbe, 849 F.3d at 128 (internal
quotation marks omitted). Moreover, removing all large-
capacity magazines from circulation reduces the
opportunities for criminals to steal them. See, e.g., id. at 140
(noting the “evidence that, by reducing the availability of . . .
[large-capacity] magazines overall, the [challenged law] will
curtail their availability to criminals and lessen their use in
mass shootings, other crimes, and firearms accidents”). For
example, the shooter who targeted Sandy Hook’s elementary
school stole his mother’s lawfully-possessed weapons and
large-capacity magazines, which he then used to kill more
than two dozen people, including twenty children.
Just as our sister circuits have concluded in assessing the
fit between restrictions on large-capacity magazines and the
goal of reducing gun violence, we conclude that California’s
ban is a reasonable fit, even if an imperfect one, for its
compelling goal of reducing the number of deaths and
injuries caused by mass shootings. Worman, 922 F.3d at 39–
40; ANJRPC, 910 F.3d at 119–22; Kolbe, 849 F.3d at 139–
41; NYSRPA, 804 F.3d at 263–64; Heller II, 670 F.3d
at 1263–64. Because we apply intermediate scrutiny, the
law need not be the least restrictive means, and some
measure of over-inclusiveness is permissible. E.g., Torres,
911 F.3d at 1264 n.6. Plaintiffs and their experts speculate
46 DUNCAN V. BONTA
about hypothetical situations in which a person might want
to use a large-capacity magazine for self-defense. But
Plaintiffs’ speculation, not backed by any real-world
examples, comes nowhere near overcoming the deference
that we must give to the reasonable legislative judgment,
supported by both data and common sense, that large-
capacity magazines significantly increase the devastating
harm caused by mass shootings and that removing those
magazines from circulation will likely reduce deaths and
serious injuries. See, e.g., Worman, 922 F.3d at 40
(rejecting, as “too facile by half,” the argument that a ban on
large-capacity magazines sweeps too broadly because it bars
law-abiding citizens from possessing them); Pena, 898 F.3d
at 980 (upholding a firearm-safety restriction because of the
deference we owe to “[t]he legislative judgment that
preventing cases of accidental discharge outweighs the need
for discharging a gun” in the “rare instance” where the safety
restriction “disables a gun capable of providing self-
defense”).
Because California’s ban on large-capacity magazines is
a reasonable fit for the compelling goal of reducing gun
violence, we reverse the district court’s grant of summary
judgment to Plaintiffs on their Second Amendment claim.
B. Takings Claim
The Fifth Amendment provides, “nor shall private
property be taken for public use, without just compensation.”
U.S. Const. amend. V. “There are two types of ‘per se’
takings: (1) permanent physical invasion of the property,
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.
419, 426 (1982); and (2) a deprivation of all economically
beneficial use of the property, Lucas v. S.C. Coastal Council,
505 U.S. 1003, 1015–16 (1992).” Laurel Park Cmty., LLC
v. City of Tumwater, 698 F.3d 1180, 1188 (9th Cir. 2012).
DUNCAN V. BONTA 47
Alternatively, a regulatory taking may occur if the regulation
goes “too far.” Pa. Coal Co. v. Mahon, 260 U.S. 393, 415
(1922). “[R]egulatory takings challenges are governed by
the standards set forth in Penn Central Transp. Co. v. New
York City, 438 U.S. 104 (1978).” Lingle v. Chevron U.S.A.,
Inc., 544 U.S. 528, 538 (2005); see generally Cedar Point
Nursery v. Hassid, 141 S. Ct. 2063, 2071–72 (2021)
(describing these concepts).
Because Plaintiffs bring a facial takings claim, they must
show that “the mere enactment of [California’s law]
constituted a taking.” Tahoe-Sierra Pres. Council, Inc. v.
Tahoe Reg’l Plan. Agency, 535 U.S. 302, 318 (2002).
Plaintiffs must demonstrate that “no set of circumstances
exists under which the [law] would be valid.” United States
v. Salerno, 481 U.S. 739, 745 (1987).
California’s law requires an owner of a large-capacity
magazine to choose one of four options: (1) modify the
magazine so that it accommodates ten rounds or fewer;
(2) sell the magazine to a firearms dealer; (3) remove the
magazine to another state (where, depending on that state’s
laws, the owner may lawfully possess it or sell it to any third
party); or (4) turn it over to a law enforcement agency for
destruction. 7 Cal. Penal Code §§ 16740(a), 32310(d)(1)–
7
Judge Bumatay’s dissent begins by asserting that, “[i]f California’s
law applied nationwide, it would require confiscating half of all existing
firearms magazines in this country.” Dissent by J. Bumatay at 103. That
dramatic assertion is inaccurate. The government seizes nothing; many
owners are unaffected entirely; and all owners have several choices other
than voluntary relinquishment of large-capacity magazines for
destruction. More specifically, if every state adopted California’s law,
many owners of large-capacity magazines, such as current and retired
law enforcement officers, would be able to keep them. Other owners
would retain many options. For instance, they could modify the
48 DUNCAN V. BONTA
(3). California’s law plainly does not deprive an owner of
“all economically beneficial use of the property.” Laurel
Park, 698 F.3d at 1188. For example, Plaintiffs have neither
asserted nor introduced evidence that no firearms dealer will
pay for a magazine or that modification of a magazine is
economically impractical.
Plaintiffs’ facial regulatory takings claim fails for similar
reasons. Assuming, without deciding, that a facial
regulatory takings claim is ever cognizable, id. at 1189,
Plaintiffs’ claim fails because they have not introduced
evidence of the “economic impact of the regulation on,” or
the “investment-backed expectations” of, any owner of a
large-capacity magazine. Penn Cent., 438 U.S. at 124.
Whatever merit there may be to an individual’s as-applied
regulatory takings claim, an issue that we do not reach in
connection with this facial challenge, we cannot say on this
record that a regulatory taking has necessarily occurred with
respect to every owner of a large-capacity magazine.
Nor does the law on its face effect a physical taking.
California reasonably chose to prohibit the possession of
large-capacity magazines due to the danger that they pose to
society. Nothing in the case law suggests that any time a
state adds to its list of contraband—for example, by adding
a drug to its schedule of controlled substances—it must pay
all owners for the newly proscribed item. To the contrary,
the Supreme Court has made clear that “the property owner
necessarily expects the uses of his property to be restricted,
magazines to accommodate ten or fewer rounds; or they could sell the
magazines to a firearms dealer (who could sell the magazines to buyers
abroad or to those who remain authorized to possess them, such as the
thousands of current and retired law enforcement officers in this
country).
DUNCAN V. BONTA 49
from time to time, by various measures newly enacted by the
State in legitimate exercise of its police powers.” Lucas,
505 U.S. at 1027. Here, an owner of a large-capacity
magazine may continue to use the magazine, either by
modifying it to accept a smaller number of bullets or by
moving it out of state, or the owner may sell it. On review
of a facial challenge, we fail to see how those options are
necessarily inadequate in all circumstances.
We do not read the Supreme Court’s decisions in
Loretto, 458 U.S. 419, and Horne v. Department of
Agriculture, 576 U.S. 350 (2015), as expansively as
Plaintiffs do. In Loretto, 458 U.S. at 426, the Court held that
a mandated physical invasion of a landlord’s real property
for the installation of cable-television devices constituted a
taking. The Court rejected, as “prov[ing] too much,” the
argument that a landlord could avoid the regulation by
ceasing to rent the property. Id. at 439 n.17. Similarly, in
Horne, 576 U.S. at 361, the Court held that a requirement
that raisin growers and handlers grant the government
possession and title to a certain percentage of raisins
constituted a physical taking. The Court rejected the
argument, “at least in this case,” that no taking had occurred
because grape farmers could avoid the raisin market
altogether by, for example, making wine instead of raisins.
Id. at 365.
Those cases differ from this one in at least two material
ways. First, unlike in Loretto and Horne, the government
here in no meaningful sense takes title to, or possession of,
the item, even if the owner of a magazine chooses not to
modify the magazine, remove it from the state, or sell it.
That California opted to assist owners in the safe disposal of
large-capacity magazines by empowering law enforcement
agencies to accept magazines voluntarily tendered “for
50 DUNCAN V. BONTA
destruction,” Cal. Penal Code § 32310(d)(3), does not
convert the law into a categorical physical taking.
Second, Loretto and Horne concerned regulations of
non-dangerous, ordinary items—rental buildings and raisins,
“a healthy snack.” Id. at 366. Like the Third Circuit,
ANJRPC, 910 F.3d at 124 & n.32, we do not read Loretto
and Horne as requiring a government to pay whenever it
concludes that certain items are too dangerous to society for
persons to possess without a modest modification that leaves
intact the basic functionality of the item. See Loretto,
458 U.S. at 436 (holding that a taking had occurred because
the owner “can make no nonpossessory use of the
property”). Mandating the sale, transfer, modification, or
destruction of a dangerous item cannot reasonably be
considered a taking akin to a physical invasion of a rental
building or the physical confiscation of raisins. See
ANJRPC, 910 F.3d at 124 (rejecting a similar takings
challenge to a ban on large-capacity magazines because the
owners can, among other things, sell or transfer the
magazines or modify them to accept fewer rounds).
Because Plaintiffs’ facial takings claim fails, we reverse
the district court’s grant of summary judgment to Plaintiffs
on their takings claim.
REVERSED and REMANDED for entry of
judgment in favor of Defendant.
GRABER, Circuit Judge, concurring:
As the majority opinion explains, District of Columbia v.
Heller, 554 U.S. 570 (2008), does not provide a clear
framework for deciding whether a statute does or does not
DUNCAN V. BONTA 51
violate the Second Amendment. Indeed, the Court
recognized as much when it wrote:
Justice BREYER chides us for leaving so
many applications of the right to keep and
bear arms in doubt . . . . But since this case
represents this Court’s first in-depth
examination of the Second Amendment, one
should not expect it to clarify the entire field,
any more than Reynolds v. United States,
98 U.S. 145 (1879), our first in-depth Free
Exercise Clause case, left that area in a state
of utter certainty.
Id. at 635. But Heller does strongly suggest an analogy to
the free speech guarantee of the First Amendment. For
example:
–”Just as the First Amendment protects modern forms of
communications, e.g., Reno v. American Civil Liberties
Union, 521 U.S. 844, 849 (1997), . . . the Second
Amendment extends, prima facie, to all instruments that
constitute bearable arms, even those that were not in
existence at the time of the founding.” Id. at 582.
–In regard to the extent of the Second Amendment right,
the Court observed: “Of course the right [to keep and bear
arms] was not unlimited, just as the First Amendment’s right
of free speech was not, see, e.g., United States v. Williams,
553 U.S. 285 (2008).” Id. at 595 (emphasis added).
–”Other provisions of the Bill of Rights have similarly
remained unilluminated for lengthy periods. This Court first
held a law to violate the First Amendment’s guarantee of
freedom of speech in 1931, almost 150 years after the
Amendment was ratified . . . . Even a question as basic as
52 DUNCAN V. BONTA
the scope of proscribable libel was not addressed by this
Court until 1964, nearly two centuries after the founding.”
Id. at 625–26 (citations omitted).
–Rational-basis scrutiny cannot “be used to evaluate the
extent to which a legislature may regulate a specific,
enumerated right, be it the freedom of speech . . . or the right
to keep and bear arms.” Id. at 628 n. 27.
–And, finally:
The First Amendment contains the freedom-
of-speech guarantee that the people ratified,
which included exceptions for obscenity,
libel, and disclosure of state secrets, but not
for the expression of extremely unpopular
and wrong[-]headed views. The Second
Amendment is no different. Like the First, it
is the very product of an interest balancing by
the people.
Id. at 635 (first and second emphases added).
Under the First Amendment, we review laws that
regulate speech under the standard of intermediate scrutiny;
laws that “leave open ample alternative channels for
communication of the information” and that place
“reasonable restrictions on the time, place, or manner of
protected speech” are permissible. Ward v. Rock Against
Racism, 491 U.S. 781, 791 (1989). By repeatedly drawing
an analogy to the First Amendment’s Free Speech Clause,
Heller strongly suggests that intermediate scrutiny can apply
to the Second Amendment, too. Accordingly, reasonable
restrictions on the time, place, or manner of exercising the
Second Amendment right to keep and bear arms are
permissible if they leave open ample alternative means of
DUNCAN V. BONTA 53
exercising that right, the central component of which is
individual self-defense. Heller, 554 U.S. at 599.
Other courts, including ours, have applied the First
Amendment analogy to analyze a Second Amendment
challenge. We held in Jackson v. City & County of San
Francisco, 746 F.3d 953, 961 (9th Cir. 2014), that “First
Amendment principles” inform our analysis. In particular,
“firearm regulations which leave open alternative channels
for self-defense are less likely to place a severe burden on
the Second Amendment right than those which do not,” and
“laws which regulate only the ‘manner in which persons
may exercise their Second Amendment rights’ are less
burdensome than those which bar firearm possession
completely.” Id. (quoting United States v. Chovan, 735 F.3d
1127, 1138 (9th Cir. 2013)); accord Hirschfield v. Bureau of
Alcohol, Firearms, Tobacco & Explosives, 5 F.4th 407, 415
(4th Cir. 2021) (“Just as the First Amendment employs strict
scrutiny for content-based restrictions but intermediate
scrutiny for time, place, and manner regulations, the scrutiny
in [the Second Amendment] context depends on the nature
of the conduct being regulated and the degree to which the
challenged law burdens the right.” (internal quotation marks
omitted)); Nat’l Rifle Ass’n v. Bureau of Alcohol, Tobacco,
Firearms, & Explosives, 700 F.3d 185, 198 (5th Cir. 2012)
(“In harmony with well-developed principles that have
guided our interpretation of the First Amendment, we
believe that a law impinging upon the Second Amendment
right must be reviewed under a properly tuned level of
scrutiny—i.e., a level that is proportionate to the severity of
the burden that the law imposes on the right.”); United States
v. Decastro, 682 F.3d 160, 167 (2d Cir. 2012) (“In deciding
whether a law substantially burdens Second Amendment
rights, it is therefore appropriate to consult principles from
other areas of constitutional law, including the First
54 DUNCAN V. BONTA
Amendment (to which Heller adverted repeatedly).”); Heller
v. District of Columbia, 670 F.3d 1244, 1257 (D.C. Cir.
2011) (“Heller II”) (“As with the First Amendment, the level
of scrutiny applicable under the Second Amendment surely
depends on the nature of the conduct being regulated and the
degree to which the challenged law burdens the right.”
(internal quotation marks omitted)); Ezell v. City of Chicago,
651 F.3d 684, 703 (7th Cir. 2011) (“Borrowing from the
Court’s First Amendment doctrine” in formulating an
appropriate test for Second Amendment challenges); United
States v. Marzzarella, 614 F.3d 85, 97 (3d Cir. 2010)
(looking to “the First Amendment speech context” in
applying intermediate scrutiny to a law that “is more
accurately characterized as a regulation of the manner in
which persons may lawfully exercise their Second
Amendment rights”).
Applying those principles here, intermediate scrutiny is
the appropriate standard for assessing California’s ban on
large-capacity magazines. Other circuits have recognized,
and I agree, that a ban on large-capacity magazines leaves
open ample alternative means of self-defense. Ass’n of N.J.
Rifle & Pistol Clubs, Inc. v. Att’y Gen. N.J., 910 F.3d 106,
118 (3d Cir. 2018) N.Y. State Rifle & Pistol Ass’n, Inc. v.
Cuomo, 804 F.3d 242, 260 (2d Cir. 2015); Friedman v. City
of Highland Park, 784 F.3d 406, 411 (7th Cir. 2015). As the
majority opinion describes more fully, citizens have a nearly
unlimited array of weapons that they may use, and very close
to 100% of instances of self-defense use fewer—typically far
fewer—bullets than ten. But even considering a rare
situation in which someone defending a home wishes to fire
more than ten bullets in a short period of time, alternatives
nevertheless remain: the shooter may carry more than one
firearm, more than one magazine, or extra bullets for
reloading the magazine. Because of the inconvenience of
DUNCAN V. BONTA 55
carrying more than one firearm or the delay of a few seconds
while a magazine is changed, those options are not a perfect
substitute for a single magazine loaded with scores of
bullets. But alternative-means analysis does not require an
exact match. See, e.g., Jackson, 746 F.3d at 964 (applying
intermediate scrutiny to San Francisco’s requirement that a
gun be kept in a safe at home when not carried on the person
because “a modern gun safe may be opened quickly” and
because “San Franciscans are not required to secure their
handguns while carrying them on their person”);
Mastrovincenzo v. City of New York, 435 F.3d 78, 101 (2d
Cir. 2006) (“The requirement that ample alternative channels
exist does not imply that alternative channels must be perfect
substitutes for those channels denied to plaintiffs by the
regulation at hand.” (internal quotation marks omitted)).
Individuals plainly have ample alternative means for self-
defense.
And, because the only practical effect of California’s law
is the inability of a shooter to fire more than ten bullets
without pause, the regulation is akin to a reasonable manner
restriction. As far as the challenged statute is concerned, a
shooter may fire any firearm at all and as many times as the
shooter chooses, but only in a manner that requires briefly
pausing after ten shots. See Heller II, 670 F.3d at 1262(holding that D.C.’s ban on large-capacity magazines was
akin to a regulation of the manner in which speech takes
place). In conclusion, because California’s ban on large-
capacity magazines imposes only a minimal burden on the
Second Amendment right to keep and bear arms,
intermediate scrutiny applies. The majority opinion explains
why California’s law meets that constitutional standard.
To be sure, the First Amendment and the Second
Amendment differ in many important respects (including
56 DUNCAN V. BONTA
text and purpose), and the analogy is imperfect at best. See
Young v. Hawaii, 992 F.3d 765, 827–28 (9th Cir. 2021) (en
banc), petition for cert filed, (U.S. May 11, 2021) (No. 20-
1639) (rejecting analogy to the First Amendment’s “prior
restraint” doctrine when analyzing firearms-licensing laws).
Among other things, firearms present an inherent risk of
violence toward others that is absent in most First
Amendment cases. See Bonidy v. U.S. Postal Serv., 790 F.3d
1121, 1126 (10th Cir. 2015) (distinguishing the Second
Amendment right from other fundamental rights on this
ground, as one justification for refusing to apply strict
scrutiny). Nonetheless, in my view Heller suggests that we
should apply that analogy when appropriate. And I think
that it is appropriate here to conclude that the challenged law
is similar to a permissible “manner” restriction on protected
speech.
BERZON, Circuit Judge, with whom THOMAS, Chief
Judge, and PAEZ, MURGUIA, WATFORD, and
HURWITZ, Circuit Judges, join, concurring:
I concur in Judge Graber’s principal opinion for the
Court. I write separately to respond to the substance of the
“text, history, and tradition” approach to Second
Amendment legal claims, laid out in detail and advocated by
Judge Bumatay’s Dissent. Bumatay Dissent at 103–143. In
connection with that response, I shall offer a brief theoretical
and historical defense of the two-step, tiered scrutiny
approach used by eleven of the federal courts of appeal in
Second Amendment cases. See Principal Opinion at 23–24
(referencing cases from the First, Second, Third, Fourth,
Fifth, Sixth, Seventh, Ninth, Tenth, Eleventh, and
D.C. Circuits).
DUNCAN V. BONTA 57
As I hope to demonstrate, the notion that judges can
avoid so-called subjectivity—meaning, I gather, adjudging
the validity of an arms-control regulation on the basis of their
own biases rather than on the basis of ascertainable, self-
limiting standards and procedures—more successfully under
the “text, history, and tradition” approach than under the
two-step, tiered scrutiny analysis is a simplistic illusion.
Unlike the “text, history, and tradition” approach, the two-
step, tiered scrutiny approach requires courts to show their
work, so to speak, both to themselves and to readers and
other courts. It incorporates historical analysis at the initial
stage—that is, in considering whether a given kind of arms-
related behavior falls within the scope of Second
Amendment’s protection at all. See, e.g., Young v. Hawaii,
992 F.3d 765, 783–84 (9th Cir. 2021) (en banc), petition for
cert. filed (U.S. May 11, 2021) (No. 20-1639); Teixeira v.
Cnty. of Alameda, 873 F.3d 670, 682 (9th Cir. 2017) (en
banc); Jackson v. City & Cnty. of San Francisco, 746 F.3d
953, 960 (9th Cir. 2014). But where the available historical
materials are either indeterminate, as here, Principal Opinion
at 30, or indicate that the particular behavior does fall within
the scope of the “right of law-abiding, responsible citizens
to use arms in defense of hearth and home” that the Second
Amendment was intended to protect, District of Columbia v.
Heller, 554 U.S. 570, 616, 628, 635 (2008), a court applying
the two-step approach moves on to the second stage of the
inquiry. That stage requires the court expressly to consider
and carefully to calibrate the nature of the challenged
regulation and the government interests at hand, exposing
the court’s analysis and interpretive choices to plain view.
In contrast, resort to text, history, and tradition alone
when assessing the constitutionality of particular, discrete
arms regulations (as opposed to when assessing broader
questions regarding the general reach of the Second
58 DUNCAN V. BONTA
Amendment, as was undertaken in Heller, 554 U.S. at 576–
628) obscures the myriad decisions that underlie coming to
a resolution regarding the validity of a specific arms
regulation using such an analysis. And so, far from limiting
judicial discretion, the “text, history, and tradition” approach
draws a veil over a series of decisions that are not
preordained and that materially impact the outcome in any
given case.
Additionally, the notion that text, history, and,
especially, “tradition” are objectively ascertainable
disregards what linguists, historians, and anthropologists
have long recognized: language can be indeterminate,
especially as time passes; ascertaining what happened in the
past is contingent and variable, because both the data
available and the means of structuring and analyzing that
data vary over time; and “tradition” is a term with little stable
meaning, both as to the time period it takes for a “tradition”
to become established and as to the individuals or
communities whose habits and behaviors are said to
establish a “tradition.”
In short, the appeal to objectivity in the Bumatay
Dissent, while alluring, is spurious, as the “text, history, and
tradition” approach is ultimately an exercise in wishful
thinking. There is good reason that jurists have come to
favor application of the tiered scrutiny approach to many
forms of constitutional adjudication, including in Second
Amendment cases. The tiered scrutiny approach requires
judges carefully to attend to their own thought processes,
keeping their eyes open, rather than closed, to the aspiration
of bias-free and objective decisionmaking.
DUNCAN V. BONTA 59
I.
An evaluation of the text of the Second Amendment and
the history and traditions of our nation are assuredly
important considerations in any case involving the Second
Amendment. “[T]he Supreme Court’s guidance in Heller
and McDonald . . . looked extensively to history, text, and
tradition in discussing the scope of the Second Amendment
right.” Principal Opinion at 25; see also Young, 992 F.3d
at 783–84; Teixeira, 873 F.3d at 682; Jackson, 746 F.3d
at 960. The principal opinion recognizes the important role
that text, history, and tradition play in a Second Amendment
case, noting that those considerations factor into both parts
of the Court’s two-step analysis. Principal Opinion at 25.
Specifically, text, history, and tradition “greatly inform step
one of the analysis, where we ask whether the challenged
law implicates the Second Amendment,” and they “also
inform step two, where we choose strict scrutiny,
intermediate scrutiny, or no scrutiny at all (as in Heller) by
examining the effect of “ a disputed law “on the core of the
Second Amendment right as traditionally understood.” Id.
Judge Bumatay agrees that the text, history, and tradition
of the Second Amendment should guide our inquiry with
respect to the overall scope of the Second Amendment.
Bumatay Dissent at 104, 109–110. But his proposition is
that those three factors must also be dispositive with respect
to the question whether any given gun regulation, no matter
how discrete, is constitutional. Id. In other words, under his
view, every Second Amendment case should begin and end
with an examination of text, history, and tradition. Id.
According to the Bumatay Dissent, precedent directs us
to “dispense[]” with the principal opinion’s two-step, tiered
scrutiny approach and replace it with the “text, history, and
tradition” test. See, e.g., Bumatay Dissent at 104–105, 108,
60 DUNCAN V. BONTA
111–112. Judge Graber’s opinion for the Court explains
why that precedent-based argument is mistaken, Principal
Opinion at 25–26, as does Judge Ginsburg’s majority
opinion for the D.C. Circuit in Heller v. District of Columbia
(Heller II), 670 F.3d 1244, 1264–67 (D.C. Cir. 2011). I do
not repeat that discussion.
Aside from the incorrect precedent argument, the
Bumatay Dissent maintains, principally, that the “text,
history, and tradition” test should govern Second
Amendment legal disputes because it is inherently more
objective and less subject to manipulation than the two-step
approach. See, e.g., Bumatay Dissent at 109–112, 121–125.
Contrary to that assertion, there are several reasons why text
and history and, especially, tradition fall short of the judge-
constraining attributes with which they are endowed by
Judge Bumatay and the (uniformly non-controlling)
appellate opinions on which he relies. See Bumatay Dissent
at 115–118. This concurrence will explain why a framework
that relies exclusively on text, history, and tradition to
adjudicate Second Amendment claims provides only the
aura, but not the reality, of objectivity and resistance to
manipulation based on a judge’s supposed biases when
applied to discrete regulations governing activity that falls
within the scope of the Second Amendment, as that scope
was determined by Heller. 1
1
There is no reason to think that “personal motives” such as a
distaste for firearms or a lack of familiarity with firearms influenced the
outcome of this case. Hurwitz Concurrence at 100–103. A judge’s
obligation is to be aware of their biases and vigorously avoid using them
to decide cases, not to bleach their minds, an impossibility. See, e.g.,
Miles v. Ryan, 697 F.3d 1090, 1090–91 (9th Cir. 2012).
DUNCAN V. BONTA 61
A.
Beginning with the “text” prong of the “text, history, and
tradition” framework, the evolution of language over time
poses a significant problem. Words do not have inherent
meaning. To the contrary, the meaning of a text depends in
large part on “how the interpretive community alive at the
time of the text’s adoption understood” the words as they
were used in the text, and that understanding is unlikely to
match the understanding of a future interpretive community.
Frank H. Easterbrook, Foreword to Antonin Scalia & Bryan
A. Garner, Reading Law: The Interpretation of Legal Texts
xxv (2012).
This problem arises frequently in textual interpretation
cases involving “statutes of long-standing vintage.” United
States v. Kimsey, 668 F.3d 691, 699–701 (9th Cir. 2012). To
be sure, it is not impossible to navigate this difficulty and
avoid erring in some such cases, see, e.g., id. But the older
a text is, the more distant we become from the interpretive
community alive at the time of the text’s adoption, and the
less able we are to approach a text through the perspective
of such people. Easterbrook, supra, at xxv. There comes a
point where the original meaning of the text “is no longer
recoverable reliably,” as it has simply been lost to the
passage of time. Id. When problems of this kind surface in
Second Amendment cases involving the constitutionality of
discrete firearm regulations, the text of the Second
Amendment is unlikely to offer a dependable solution.
More importantly for present purposes, although the
word “text” appears in the title of the Bumatay Dissent’s
“text, history, and tradition” test, the language of the Second
Amendment does not play much of an operative role in the
Dissent’s application of that test to the large-capacity
magazine regulation here challenged, and for good reason.
62 DUNCAN V. BONTA
As the reasoning of the Dissent illustrates, the primary focus
of the “text, history, and tradition” framework, as applied to
specific regulations, is, unsurprisingly, on evidence of our
nation’s history and traditions. Bumatay Dissent at 125–
142. The language of the Constitution was necessarily
drafted at a high level of abstraction. Its broad language
becomes less informative the more specific the inquiry at
issue, and textual analysis therefore often plays only a
minimal role in analyzing how a constitutional provision
applies to a specific regulation. Put differently, although the
language of the Second Amendment played a vital role in
determining the overall scope of the Amendment in Heller,
554 U.S. at 576–603, the Amendment’s text is unlikely to
provide much guidance in cases involving the validity of
discrete regulations. The “text” prong of the “text, history,
and tradition” approach is therefore unlikely to yield
ascertainable answers in cases where the Second
Amendment’s general language is applied to narrow,
particular regulations targeting modern arms devices. I
therefore concentrate my critique on the “history” and
“tradition” prongs of the Bumatay Dissent’s “text, history,
and tradition” approach.
B.
The “history” prong, when relied upon as a mandatory,
independently dispositive element of the “text, history, and
tradition” approach, as applied to discrete regulations, has
considerable shortcomings. To begin, without expressing
any opinion regarding the actual accuracy of the historical
analysis embedded in the Heller decision—which would be
inappropriate, given that Heller is controlling precedent—I
note that many “historians, scholars, and judges have . . .
express[ed] the view that the [Supreme Court’s] historical
account was flawed.” McDonald v. City of Chicago,
DUNCAN V. BONTA 63
561 U.S. 742, 914 (2010) (Breyer, J., dissenting) (citing
David Thomas Konig, Why the Second Amendment Has a
Preamble: Original Public Meaning and the Political
Culture of Written Constitutions in Revolutionary America,
56 UCLA L. Rev. 1295 (2009); Paul Finkelman, It Really
Was About a Well Regulated Militia, 59 Syracuse L. Rev.
267 (2008); Patrick J. Charles, The Second Amendment: The
Intent and Its Interpretation by the States and the Supreme
Court (2009); William G. Merkel, The District of Columbia
v. Heller and Antonin Scalia’s Perverse Sense of
Originalism, 13 Lewis & Clark L. Rev. 349 (2009); Nathan
Kozuskanich, Originalism in a Digital Age: An Inquiry Into
the Right to Bear Arms, 29 J. Early Republic 585 (2009);
Saul Cornell, St. George Tucker’s Lecture Notes, the Second
Amendment, and Originalist Methodology: A Critical
Comment, 103 Nw. U. L. Rev. 1541 (2009); Richard A.
Posner, In Defense of Looseness: The Supreme Court and
Gun Control, New Republic, Aug. 26, 2008 (“In Defense of
Looseness”); Richard A. Epstein, A Structural Interpretation
of the Second Amendment: Why Heller Is (Probably) Wrong
on Originalist Grounds, 59 Syracuse L. Rev. 171 (2008));
see also Robert J. Spitzer, Saving the Constitution from
Lawyers: How Legal Training and Law Reviews Distort
Constitutional Meaning 146–48 (2008); Dennis Baron,
Corpus Evidence Illuminates the Meaning of Bear Arms,
46 Hastings Const. L.Q. 509, 510–11, 513 (2009); Noah
Shusterman, Armed Citizens 223–24 (2020).
We are, of course, bound by the conclusion Heller drew
from historical materials regarding the protection accorded
by the Second Amendment to the individual right to keep
and bear arms for self-defense, and I do not mean to suggest
that that conclusion should be revisited. Rather, the salient
fact for present purposes is that many jurists and scholars
well-educated on the subject fundamentally disagree with
64 DUNCAN V. BONTA
the Supreme Court’s historical analysis in Heller,
demonstrating that Second Amendment history is very much
open to dispute.
The Bumatay Dissent nonetheless characterizes history
as both certain and static, as if we can obtain an enduring
understanding of what happened in the past after engaging
in a single, meticulous review of cut-and-dried evidence.
See, e.g., Bumatay Dissent at 120–121. But our
understanding of history is, in fact, ever-changing. For one
thing, we unearth new historical documents over time, and
those documents sometimes lead us to revise our earlier
understandings of history. Cf. Josh Blackman & James C.
Phillips, Corpus Linguistics and the Second Amendment,
Harv. L. Rev. Blog, Aug. 7, 2018. The advent of the internet
and other tools has also dramatically changed our ability to
access and systematically review historical documents.
When Heller was decided, for example, the Supreme Court
had access to “only a fairly narrow range of sources”
regarding the common usage of the Second Amendment’s
terms at the time the Second Amendment was drafted. Id.Now, there are enormous databases of historical documents,
including one overseen by Brigham Young University that
comprises about one hundred thousand works produced
between 1760 and 1799, such as letters, newspapers,
sermons, books, and journals. Id. The ability to perform
electronic searches using such databases has led to
substantial new discoveries regarding our nation’s history,
including hypotheses related to the meaning of the term
“keep and bear arms” in the Second Amendment. Id.Society also progresses over time, resulting in changed
attitudes that may in turn affect our view of history. Take
the Reconstruction Era as an example. A “traditional
portrait” of the era, showcased in films like Birth of a Nation
DUNCAN V. BONTA 65
and embraced for much of the twentieth century, framed
President Andrew Johnson as a hero who restored home rule
and honest government to the South in a triumph over radical
Northerners, who sought to plunder the spoils of the region,
and childlike freedmen, who were not prepared to exercise
the political power that had been foisted upon them. Eric
Foner, Reconstruction Revisited, 10 Revs. Am. Hist. 82, 82–
83 (1982). But in the 1960s, following the Second
Reconstruction and a change in attitude toward people of
color, the narrative flipped. Freedmen were recast as heroes,
white Southerners as villains, and the Reconstruction
governments as far more competent than had previously
been let on. Id. at 83–84. A decade later, wary of
exaggerating the faults and virtues of the people of the time,
historians rejected both accounts and began questioning
whether “much of importance happened at all” during the
Reconstruction Era. Id. at 84–85. The dominant account of
the Reconstruction Era has continued to evolve over time,
both because new scholars, many of them scholars of color,
have contributed to the conversation, and because the events
of the period appear quite different from the vantage point of
passing time. Id. at 86–95. In other words, interpreting
history is not as simple as compiling and processing stacks
of paper. See also, e.g., David W. Blight, Historians and
“Memory,” Common Place, Apr. 2002; Jonathan Gienapp,
Constitutional Originalism and History, Process: A Blog for
American History (Mar. 20, 2017), http://www.processhist
ory.org/originalism-history/.
Additionally, judges are not trained historians, and the
study of history is rife with potential methodological
stumbling blocks. The volume of available historical
evidence related to the legal question in any discrete Second
Amendment controversy, for example, will vary enormously
and may often be either vast or quite sparse.
66 DUNCAN V. BONTA
On the one hand, for legal questions as to which there is
a wealth of historical evidence, an imprecise research
methodology can lead to what has been “derisively referred
to . . . as ‘law office history.’” In Defense of Looseness,
supra. As then-Judge Posner explained it, “law office
history” refers to a process by which a judge or advocate
“sends his law clerks” or associates “scurrying to the library
and to the Web for bits and pieces of historical
documentation” that will support a given position on a legal
issue. Id. When the clerks or associates are “numerous and
able,” when they “enjoy[] the assistance of . . . capable
staffs” such as the staff at the Supreme Court library, or
when they can rely on similar labor distilled into “dozens and
sometimes hundreds of amicus curiae briefs,” it becomes “a
simple matter . . . to write a plausible historical defense” of
the desired position. Id. Accordingly, even if an opinion
appears to rely on a “breathtaking” number of historical
references, the underlying analysis may not constitute
“disinterested historical inquiry,” but may instead represent
“the ability of well-staffed courts” or firms to pick from
among the available historical sources those most conducive
to a given proposition. Id.
To so recognize is not to suggest that judicial inquiries
under the “text, history, and tradition” test—as opposed to
the inquiries of advocates, which are necessarily result-
driven—would be directed in advance at reaching a
foreordained result. Rather, the inquiries would be directed
at reaching a result, which necessitates marshaling the
available historical materials such that they support a single
legal conclusion. See, e.g., Avani Mehta Sood, Motivated
Cognition in Legal Judgments—An Analytic Review, 9 Ann.
Rev. L. & Soc. Scis. 307, 308–10 (2013). But history,
assessed in a genuinely neutral fashion, may not support one
DUNCAN V. BONTA 67
conclusion. Instead, it may support conflicting conclusions
or no conclusion at all.
Although a historical account with a thesis or viewpoint
may read better than one that acknowledges ambiguity or
irresolution, historians are trained to sift through materials
with an underlying acceptance that the materials may or may
not support one conclusion or another, or that the
conclusions that can be drawn from the evidence may evolve
over time. Put differently, historians need not resolve
apparent contradictions and may follow the evidence where
it leads. See Gienapp, supra. Courts do not have that luxury.
Judges must definitively answer specific, detailed legal
questions—here, whether the Second Amendment permits
states to ban high-capacity magazines that allow a weapon
to fire more than ten rounds without reloading. That need to
provide an answer—referred to in the literature as
“motivated thinking” or “motivated reasoning,” see, e.g.,
Sood, supra—can skew a court’s historical analysis, much
as scientific research can be undermined by the desire to
make some discovery rather than none, see, e.g., Danielle
Fanelli & John P. A. Ioannidis, U.S. Studies May
Overestimate Effect Sizes in Softer Research, Proc. Nat’l
Acad. Scis. U.S., Sept. 10, 2013, at 1–6.
On the other hand, an inquiry into some legal
questions—such as the question whether a specific
contemporary arms regulation is lawful under the “text,
history, and tradition” test—may turn on a very narrow array
of available historical resources. As the Supreme Court
recognized in the context of a Title VII dispute, “small
sample size may, of course, detract from the value” of
evidence. Int’l Bhd. of Teamsters v. United States, 431 U.S.
324, 339 n.20 (1977). This Court has so recognized as well,
noting that if an inquiry relies on an unduly small number of
68 DUNCAN V. BONTA
data points, it will have “little predictive value and must be
disregarded.” Morita v. S. Cal. Permanente Med. Grp.,
541 F.2d 217, 220 (9th Cir. 1976). This “small sample size”
problem has been discussed in numerous scholarly contexts,
including with respect to historical analyses involving
firearms. See, e.g., James Lindgren & Justin L. Heather,
Counting Guns in Early America, 43 Wm. & Mary L. Rev.
1777, 1826 (2002) (maintaining that a scholar published a
book that made unsubstantiated claims about gun ownership
in America based on faulty science, including a failure to
account for and report sample sizes). So there may be
occasions in which the universe of available historical
evidence is too small for courts to draw reliable conclusions,
rendering the “history” prong of the “text, history, and
tradition” framework inoperable.
Sample size issues and the drive to draw a single legal
conclusion are not the only potential methodological pitfalls
for the “text, history, and tradition” test. Cognitive biases
ranging from confirmation bias to anchoring bias, see, e.g.,
Daniel Kahneman, Thinking Fast and Slow 80–81, 119–28,
324, 333 (2011), can cloud a judge’s analysis. 2 And very
few judges have received formal training on technical
elements of historiographical research design, such as the
importance of drawing from varied sources and assessing
sources to ferret out potential bias imparted by the author.
The risk that error will result from these imperfections in the
“history” prong of the “text, history, and tradition”
framework counsels against adopting the framework as the
controlling test for all Second Amendment disputes, as
2
Confirmation bias refers to the tendency to interpret new
information as confirmation of one’s pre-existing assumptions or
theories. Anchoring bias refers to the tendency to over-rely on the initial
evidence we discover as we learn about a given topic. See id.DUNCAN V. BONTA 69
opposed to relying on history as a useful tool embedded in a
structured, sequential inquiry such as the two-step, tiered
scrutiny approach.
C.
As flawed as the suppositions of objectivity and certainty
are for the “text” and “history” prongs of the Bumatay
Dissent’s proposed framework, as applied to discrete
regulations, the focus on “tradition” is even more
problematic with regard to those supposed virtues. Courts
have “vast discretion in deciding which traditions to take
into account” and “substantial discretion in determining how
to define the tradition at issue.” John C. Toro, The Charade
of Tradition-Based Substantive Due Process, 4 N.Y.U. J. L.
& Liberty 172, 181 (2009). Additionally, even if a court
finds that tradition does support a given legal outcome, the
court “must take the further step of determining whether”
that tradition “should receive modern-day protection—an
inquiry which depends heavily” on the court making a
contextual judgment that accounts for the contemporary
legal milieu. Id.In particular, a foundational question plaguing any
tradition-based framework is “[w]hose traditions count.” Id.
at 181. For example, in several substantive due process
cases such as Lawrence v. Texas, 539 U.S. 558, 567–68
(2003), the Supreme Court appealed to historical attitudes
going back to ancient times to support its interpretation.
Toro, supra, at 181–83. But when determining in
Washington v. Glucksberg, 521 U.S. 702 (1997), whether
individuals have a right to physician-assisted suicide, the
Supreme Court disregarded a trove of ancient history
supporting the practice even though that history had been
extensively referenced in the opinion on review, and instead
began its analysis by citing commentators from the thirteenth
70 DUNCAN V. BONTA
century. Id. at 710; see also Toro, supra, at 183–85.
Whereas ancient authorities were, by and large, tolerant of
suicide, St. Augustine’s interpretation of the demands of the
Fifth Commandment drastically reshaped the way Western
societies viewed the subject by the time of the thirteenth
century. Toro, supra, at 184–85. The Supreme Court chose
to begin its analysis at that point and, accordingly, held that
the right to physician-assisted suicide is not deeply rooted in
tradition. Glucksberg, 521 U.S. at 735.
As this example illuminates, a framework that relies
heavily on tradition is inherently indeterminate, because it
often depends upon the choice of traditions on which to rely.
My point is not that such choices are illegitimate—courts
have to make decisions between competing legal positions,
and such decisions necessarily require choices—but instead
that there are choices that must be made in appealing to
tradition. Without transparency as to those choices and a
structured procedure for making those choices, the pretense
of objectivity collapses.
Moreover, there are frequently traditions that support
each side of a constitutional controversy. Id. at 186. A
framework focused predominantly on tradition leaves
litigants free to cherry-pick from those traditions to justify
their preferred results. Id.
In Michael H. v. Gerald D., 491 U.S. 110 (1989), for
example, the Supreme Court addressed the constitutionality
under the Fourteenth Amendment’s Due Process Clause of a
California statute providing that “a child born to a married
woman living with her husband is presumed to be a child of
the marriage.” Id. at 113 (plurality opinion). The natural
father of an adulterously conceived child brought suit,
arguing that the law infringed upon his and the child’s due
process right to maintain a relationship with one another. Id.DUNCAN V. BONTA 71
Justice Scalia, writing for the plurality, disagreed,
concluding that “our traditions have protected the marital
family” and have generally declined to afford rights to the
natural father of an adulterously conceived child. Id. at 124–
27 & n.6.
Justice Brennan, in dissent, maintained that rather than
focusing on historical traditions related to the rights of an
adulterous natural father, the Court should instead focus on
the historical tradition of affording great respect to the
parent-child relationship. Id. at 139. In defending that
position, Justice Brennan noted that the concept of tradition
“can be as malleable and as elusive as ‘liberty’ itself,” and
admonished the plurality for “pretend[ing] that tradition
places a discernible border around the Constitution.” Id.
at 137. Although that “pretense is seductive” because “it
would be comforting to believe that a search for ‘tradition’
involves nothing more idiosyncratic or complicated than
poring through dusty volumes on American history,”
“reasonable people can disagree about the content of
particular traditions” and about “which traditions are
relevant.” Id.With respect to the Second Amendment, historical
sources from the Founding Era through the late nineteenth
century indicate that members of the public held vastly
different views on gun ownership and gun regulation
depending on where they lived, both in terms of
geographical region and in terms of whether the individual
lived in an urban or rural environment. See, e.g., Joseph
Blocher & Darrell A. H. Miller, The Positive Second
Amendment: Rights, Regulation, and the Future of Heller 20,
29–35 (2018); Joseph Blocher, Firearm Localism, 123 Yale
L.J. 82, 112–21 (2013). Because a litigant who advocates a
certain outcome may cite predominantly to authorities from
72 DUNCAN V. BONTA
a region or locality that tends to support the litigant’s view,
the “tradition” prong of the “text, history, and tradition” test
is highly manipulable. Indeed, this aspect of the approach
renders it akin, in many ways, to an analysis of legislative
intent—a practice rejected by textualists because the
“legislature is a hydra-headed body whose members may
not” share a common view. Richard A. Posner, Reflections
on Judging 189 (2013); see also Gienapp, supra. Similarly,
the annals of history and lore rarely divulge a common view
on what practices qualify as traditional.
Relatedly, there are often permissive and restrictive
traditions that “cut in opposite directions.” Toro, supra, 189.
In the context of a case involving a patient’s right to refuse
life-prolonging medical treatment, for example, the Supreme
Court had to choose between two traditions—one permissive
tradition of allowing the state to regulate suicide, and one
restrictive tradition of forbidding states from interfering in
private medical decisions involving refusal of treatment.
Cruzan ex rel. Cruzan v. Dir., Mo. Dept. Health, 497 U.S.
261, 269–82 (1990). The Supreme Court ultimately ruled in
favor of the restrictive tradition, but, from the perspective of
adhering to our nation’s traditions, the opposite conclusion
would have also been justified.
So far, no jurist or academic has come forward with a
workable method of choosing between conflicting restrictive
and permissive traditions. See Toro, supra, at 190–91.
Crucially, for our purposes, the “text, history, and tradition”
test provides no guideposts on how a court should navigate
indistinct traditions or weigh between conflicting traditions,
and it therefore cannot provide a workably objective or bias-
filtering framework for adjudicating Second Amendment
controversies regarding discrete, specific regulations.
DUNCAN V. BONTA 73
Even if there is only one relevant tradition at issue within
a given case, there is still the problem of deciding how
narrowly or broadly to define the tradition. That choice can
be outcome determinative regarding the court’s assessment
of the impact of the given tradition on, for example, the
validity of a specific arms regulation. Id. at 186. A historical
prohibition on carrying firearms in “fairs, markets, and in the
presence of the King’s ministers,” for example, “could
support regulations of wildly different scope: wherever
people congregate, wherever the state is in control, wherever
people buy things, or wherever government agents are
stationed.” Blocher & Miller, supra, at 130; see also Peter
J. Smith, Originalism and Level of Generality, 51 Ga. L.
Rev. 485, 487 (2017); Frank H. Easterbrook, Abstraction
and Authority, 59 U. Chi. L. Rev. 349, 358 (1992).
According to an analysis of fifty recent Second
Amendment opinions, a court’s decision to use a higher level
of generality when describing the core legal question in a
given dispute usually supported striking down a challenged
arms regulation, whereas a court’s decision to use a lower
degree of generality typically led to the law being upheld.
Mark Anthony Frassetto, Judging History: How Judicial
Discretion in Applying Originalist Methodology Affects the
Outcome of Post-Heller Second Amendment Cases, 29 Wm.
& Mary Bill Rights J. 413, 415, 438–39 (2020). In the
context of public carry disputes, for example, the study
found that “[j]udges favoring a broad right to carry in public
have generally framed the question as whether the Second
Amendment protects a right to carry arms in public at all,”
whereas “judges who have favored upholding public carry
restrictions have” phrased the question more narrowly,
characterizing the question as “whether carrying a concealed
weapon in public was understood to be within the scope of
the right protected by the Second Amendment at the time of
74 DUNCAN V. BONTA
ratification.” Id. at 439–41 (citation omitted). As this
discussion highlights, several factors inherent in the
“tradition” inquiry can have a dispositive impact on the
outcome of a legal dispute. A mandatory, rigid “text,
history, and tradition” framework, contrary to the assertions
of its proponents, provides no objective method for
navigating such factors that would ensure objectivity and
consistency in the law.
Next, even if an asserted right does find support in a
relevant tradition and even if courts can agree on the proper
way to characterize that tradition, courts would still be left
with the problem of determining whether a particular
tradition should be carried forward as constitutionally
sanctioned. That determination necessarily involves, albeit
behind a veil, policy and value-balancing judgments of the
kind that the Bumatay Dissent claims the “text, history, and
tradition” test would avoid.
Our nation’s history includes many traditions that would
not now be accorded constitutional protection. See Toro,
supra, at 193. One example that has been given is the now-
rejected assumption that a woman is subject to her husband’s
control and governance, a concept that gave rise to the
widespread doctrinal rule at common law that a husband
could not be convicted of sexually assaulting his wife. Id.
If a man sought constitutional protection for “the right to
have forcible intercourse” with his wife, his claim would,
unfortunately, find ample support in our nation’s history and
traditions. Id.; see also, e.g., Heart of Atlanta Motel, Inc. v.
United States, 379 U.S. 241, 257–62 (1964) (holding that
private race discrimination in places of public
accommodation, although traditional at the time, could be
constitutionally forbidden). A test that places great weight
on historical traditions can undermine the very bedrock of
DUNCAN V. BONTA 75
constitutional governance, by overriding later, well-accepted
legislative policies and by precluding the judiciary from
deriving and applying principles of constitutional
interpretation capable of adjudging when our practices,
however traditional, have deviated from our nation’s
precepts.
Considering in this regard the Second Amendment in
particular, racially discriminatory gun regulations have been
commonplace throughout our nation’s history, ranging from
statutes that expressly singled out people of color in their
text, to statutes that disproportionately impacted people of
color, such as prohibitions on the sale of certain less costly
guns. Br. of Amicus Curiae Rutherford Institute in Supp. Of
Pet’rs at 13–18, N.Y. State Rifle & Pistol Ass’n v. Bruen,
No. 20-843 (July 20, 2021). Although a court would
invalidate such a law in the modern day under the Equal
Protection Clause, it is notable that the “text, history, and
tradition” test itself provides no mechanism to distinguish
unjust or unconstitutional traditions, such as the tradition of
having race-based arms restrictions, from other traditions.
In short, the tradition prong of the “text, history, and
tradition” test offers even less guidance on the validity of
discrete arms regulations under the Second Amendment than
the already inadequate “text” and “history” prongs. It
thereby invites inconsistency in the law and reliance of
judges on their own personal policy preferences, contrary to
the purported attributes of the approach touted by Judge
Bumatay and by others who have supported the adoption of
the “text, history, and tradition” test.
D.
The “text, history, and tradition” approach, as laid out in
the Bumatay Dissent, suffers from two major additional
76 DUNCAN V. BONTA
defects. First, a key aspect of the rubric—the one most
emphasized by the Dissent, see Bumatay Dissent at 127–
137—is whether a particular weapon, ammunition, or other
arms-related hardware is “in common use at the time.”
Heller, 554 U.S. at 627 (quoting United States v. Miller,
307 U.S. 174, 179 (1939)). If so, the Bumatay Dissent
posits, the device should receive Second Amendment
protection.
But when must a device be in “common use” to receive
protection? Apparently, at the time of a court’s decision.
Bumatay Dissent at 103, 105, 134––137 (reasoning that
large-capacity magazines “are owned by millions of people
nationwide” and “enjoy widespread popularity today”); see
also VanDyke Dissent at 165–167 (discussing the present-
day popularity of high-capacity weapons and relying on that
evidence when assessing which weapons are “in common
use”). Federal courts of appeal have indeed largely relied
upon present-day statistical data when discussing whether a
weapon qualifies as “in common use at the time.” Blocher
& Miller, supra, at 89 & n.126. 3 But, as our colleagues on
the Seventh Circuit explained, “relying on how common a
weapon is at the time of litigation would be circular.”
3
An unanswered question regarding this interpretation of the
“common use” inquiry is what metric a court should apply when
determining whether a weapon qualifies as in common use. “One can
come to quite a range of conclusions” regarding the prevalence of the
same weapon “depending on whether one calculates common use by
absolute numbers, by absolute dollars, or by the percentage of the
market,” whether that be the market for firearms in general, for the
specific type of firearm at issue, “or for all self-defense technology.”
Blocher & Miller, supra, at 89 (citing Eugene Volokh, Implementing the
Right to Keep and Bear Arms for Self-Defense: An Analytical
Framework and a Research Agenda, 56 UCLA L. Rev. 1443, 1480
(2009)).
DUNCAN V. BONTA 77
Friedman v. City of Highland Park, 784 F.3d 406, 409 (7th
Cir. 2015). “[I]t would be absurd to say that the reason why
a particular weapon can be banned is that there is a statute
banning it” which, in turn, prevented the weapon from
becoming commonly owned. Id. In other words, “[a] law’s
existence can’t be the source of its own constitutional
validity.” Id.; see also Blocher & Miller, supra, at 89 (“law-
abiding people [must] choose weapons from among the
weapons that are lawful to possess, leading to the seemingly
circular result that what is protected by the Constitution
depends on what has been regulated by the government”).
To regard an arms-related device’s popularity as “the
source of its own constitutional[ity]” is no less circular.
Devices may become popular before their danger is
recognized and regulated, or the danger of a particular device
may be exacerbated by external conditions that change over
time. And a device may become popular because of
marketing decisions made by manufacturers that limit the
available choices. Here, for example, large-capacity
magazines come as a standard part on many models of
firearms, so a consumer who wants to buy those models has
no choice regarding whether the weapon will include a
magazine that can fire more than ten rounds without
reloading. Principal Opinion at 17, 39–40. In any event, the
prevalence of a particular device now is not informative of
what the Second Amendment encompassed when adopted,
or when the Fourteenth Amendment was added to the
Constitution, or when the Second Amendment was declared
incorporated into the Fourteenth Amendment and so
applicable to state and local governments in McDonald, 561
U.S. at 791 (plurality opinion).
This is not to say that new weapons do not receive
Second Amendment protection. To the contrary, Heller
78 DUNCAN V. BONTA
makes clear that the Second Amendment protects “all
instruments that constitute bearable arms, even those that
were not in existence at the time of the founding.” Heller,
554 U.S. at 582; see also Caetano v. Massachusetts,
577 U.S. 411, 411–12 (2016). And an assessment of
prevalence must play some role in a court’s analysis; Heller
explained that the Second Amendment’s protection extends
only to those weapons commonly used “by law-abiding
citizens for lawful purposes.” Heller, 554 U.S. at 624–25,
627; see also Fyock v. Sunnyvale, 779 F.3d 991, 997–98 (9th
Cir. 2015).
Notably, however, Heller focused not just on the
prevalence of a weapon, but on the primary use or purpose
of that weapon. The Supreme Court explained that, at the
time of the Second Amendment’s adoption, “all citizens
capable of military service . . . would bring the sorts of
lawful weapons that they possessed at home to militia duty”
and although “[i]t may well be true today that a militia, to be
as effective as militias in the [eighteenth] century, would
require [more] sophisticated arms,” such “modern
developments” cannot change the scope of the Second
Amendment right, which remains rooted in that original
rationale. Id. at 627–28. The Bumatay Dissent’s excessive
focus on the current prevalence of high-capacity magazines
is therefore misplaced, as a proper analysis must account for
the purpose and use of a weapon in addition to its current
popularity.
This discussion also surfaces another defect in the “text,
history, and tradition” test—namely, the framework
provides courts with little to no guidance in cases involving
the regulation of new and emerging weapons technologies.
Presumably, history and tradition will either be silent on or
offer very little insight into the constitutionality of measures
DUNCAN V. BONTA 79
aimed at such weapons, since, by definition, the weapons
lack a historical pedigree.
Heller approves of the practice of adopting new
regulations in the face of new technologies, as it expressly
indicates that bans on the private possession of machine guns
are valid. 554 U.S. at 624. Such bans arose gradually in the
1920s and 1930s after machine guns became widespread,
more than 130 years after the states ratified the Second
Amendment. Friedman, 784 F.3d at 408. And “[n]othing in
Heller suggests that a constitutional challenge to bans on
private possession of machine guns brought during the
1930s, soon after their enactment, should have succeeded.”
Id.
It appears likely that in many Second Amendment cases,
courts will be called upon to assess whether a regulation
targeting new and emerging weapons technologies adheres
to the commands of the Second Amendment. Now-Justice
Kavanaugh, in Heller II, responded to this concern by stating
that courts must “reason by analogy from history and
tradition.” Heller II, 670 F.3d at 1275. But resort to analogy
can go only so far, as it does not provide room to account for
contemporary circumstances not foreseeable at the time of
the Second Amendment’s adoption or incorporation.
Additionally, reasoning by analogy in these circumstances
would have no guiderails and would be subject to the “level
of generality” concerns discussed above. See supra pp. 73–
74.
In sum, because the “text, history, and tradition” test
does not adequately account for the primary purpose of
currently popular weapons technologies and does not speak
to how courts should analyze regulations targeting new and
emerging technologies, the framework is, for those reasons
80 DUNCAN V. BONTA
as well, inadequate for addressing the constitutionality of
specific gun regulations.
* * *
We are, of course, bound by Heller, which directs us to
consider the text of the Second Amendment and our
country’s history and traditions when determining the
general scope of the Second Amendment right. But a
framework that relies exclusively on those considerations
simply does not provide an administrable framework for
adjudicating Second Amendment controversies once a
court’s analysis moves beyond the overall scope of the
Second Amendment and into the constitutionality of specific
gun measures. As the Supreme Court of Ohio helpfully
summarized, the “text, history, and tradition” test is not
workable because it leaves the following critical questions
unanswered:
What should a court do when [text, history,
and tradition] do not provide a clear answer?
If the [district court] reviewed this case again
and found the historical record unclear,
would we not be right back where we started?
More generally, how would the dissenting
opinion address the concern that historical
evidence can be viewed in different ways by
different people? How would it deal with an
argument that changed circumstances make
reliance on certain Framing Era practices
unjustified? Would it reject that notion
reflexively on the ground that modern
concerns are wholly irrelevant under the text-
history-and-tradition-based approach? Or
does it acknowledge that present-day
judgments have a role to play? . . . Does one
DUNCAN V. BONTA 81
simply look for an historical analogue to the
law at issue? And if analogues exist, how
widespread must they be? How does one deal
with modern technologies and circumstances
that did not exist at the time of the Founding?
State v. Weber, 163 Ohio St. 3d 125, 139–40 (2020), cert.
denied, --- S. Ct. --- (2021). Because the “text, history, and
tradition” approach does not fill these gaps, it cannot supply
both a necessary and sufficient condition for striking down a
law which seeks to regulate the Second Amendment right.
Nor, for the reasons I have surveyed, is the “text, history, and
tradition” test the objective, principled method for
adjudicating Second Amendment legal controversies that the
Bumatay Dissent repeatedly insists that it is.
In contrast, the two-step, tiered scrutiny framework—
which I discuss more fully in Part III—consistently applied
in Second Amendment cases in this Court and in ten other
Circuits, see Principal Opinion at 23–24, offers two cures for
the key defects in the propounded “test, history, and
tradition” approach. Specifically, under the two-step
approach, a court may forthrightly recognize that, as to a
specific form of contemporary regulation, the historical
record is thin or inconclusive. The court may then move
forward with its analysis by assuming without deciding that
the Second Amendment is nevertheless implicated by the
policy or regulation at issue, as the principal opinion does
here. Principal Opinion at 30 (citing several additional
examples). Moreover, the two-step approach provides
guidance regarding a court’s proper steps once ambiguity in
the available materials is acknowledged, thereby
constraining judicial discretion at that juncture. Once a
court moves on to step two, it must decide what level of
heightened scrutiny applies, and then engage in a relevant,
82 DUNCAN V. BONTA
above-board, tiered analysis. Id. at 23–24,30–46. Under the
“text, history, and tradition” approach, by contrast, the well
runs dry as soon as the court has exhausted the text of the
Second Amendment and evidence of our nation’s history and
traditions, even when those factors are, by any fair
evaluation, indeterminate. The “text, history, and tradition”
approach therefore obscures, rather than reveals and
channels, the pivotal decisionmaking process, leaving
judges with unfettered and unexamined discretion once a
court’s regulation-specific Second Amendment analysis
moves beyond incontestable history and tradition, as it is
often bound to do.
II.
The Bumatay Dissent provides a powerful illustration of
the shortcomings of the “text, history, and tradition”
approach. Beginning with the “common use” inquiry, the
Dissent repeatedly emphasizes that large-capacity
magazines are currently prevalent, but it spends close to no
time discussing the primary purpose or use of such weapons,
instead simply asserting that the weapons are “commonly
used by Americans for lawful purposes.” See, e.g., Bumatay
Dissent at 103, 108, 127–131, 134–137. Relatedly, in
response to the principal opinion’s observation that high-
capacity magazines are specifically suited for large-scale
military use rather than for self-defense, Principal Opinion
at 28, 35–37, Judge VanDyke avers that, “almost every
attribute of a weapon that makes it more effective for
military purposes also makes it more effective for self-
defense: more accurate, faster firing, the ability to engage
multiple targets quickly—these are all characteristics of a
weapon that make it better for both military and self-defense
purposes.” VanDyke Dissent at 162–163.
DUNCAN V. BONTA 83
But, as Judge Gould explained in his concurrence in
Nordyke v. King, 644 F.3d 776 (9th Cir. 2011) (Gould, J.,
concurring), on reh’g en banc, 681 F.3d 1041 (9th Cir.
2012), although “laws barring possession of military-grade
weapons might be argued to substantially burden the right to
have weapons,” such laws “are indisputably permissible
because they do not tread on the Second Amendment’s core
purposes.” Id. at 797 n.6. “I do not mean to be facetious,”
Judge Gould wrote, “but to me it is obvious that the Second
Amendment does not protect the right to keep a nuclear
weapon in one’s basement, or a chemical or biological
weapon in one’s attic.” Id. Although nuclear bombs and
chemical and biological weapons are, of course, in a
completely different class of weapon than large-capacity
magazines in terms of the level of danger they pose, and they
are thankfully nowhere near as widespread as large-capacity
magazines, neither of those observations gets to the heart of
what the primary purpose or use of a large-capacity
magazine is. Arguably, the primary use of a large-capacity
magazine, by design, is for effective combat engagement in
a theater of war. Principal Opinion at 28, 35–37. If true,
then regardless of their prevalence in society, large-capacity
magazines would not fall within the shelter of the Second
Amendment.
Turning to the subject of assessing the constitutionality
of regulations addressing new or emerging technologies,
Judge Bumatay’s analysis again misses the mark. As
California and amici supporting the government explain,
restrictions on semi-automatic weapons capable of firing a
large number of rounds without reloading were enacted
nationally and in several states shortly after such weapons
became widely commercially available. Opening Br. at 27–
31; Reply Br. at 10–12; Br. of Amicus Curiae Everytown for
Gun Safety in Supp. Of Def.-Appellant at 4–9; see also
84 DUNCAN V. BONTA
Blocher & Miller, supra, at 42–45; Robert J. Spitzer,
America Used to Be Good at Gun Control, N.Y. Times (Oct.
3, 2017). Historically, gun regulation has followed that
pattern, with regulations arising not when a new technology
is invented, but instead when the technology begins “to
circulate widely in society.” Robert J. Spitzer, Gun Law
History in the United States and Second Amendment Rights,
80 Law & Contemp. Probs. 55, 67–71 (2017). The ban on
high-capacity magazines at issue in this case therefore
represents a “continuation of nearly a century” of arms
regulations targeting weapons that can fire a large number of
rounds without reloading, Br. of Amicus Curiae Everytown
for Gun Safety in Supp. Of Def.-Appellant at 9. The statute
thereby arguably constitutes a longstanding prohibition that
should not be disturbed by application of the Second
Amendment, at least as long as the “longstanding
prohibition” inquiry accounts for the date when the target of
a restriction became commonplace. And based on Heller’s
commentary regarding machine guns, 554 U.S. at 624; see
also supra p. 79, the inquiry should account for that factor.
The Bumatay Dissent ignores this context. It asserts that
large-capacity magazines have not been “subject to
longstanding regulatory measures,” and that it is “not a close
question” whether the statute at issue must accordingly be
struck down. Bumatay Dissent at 108. In support, the
Dissent provides scattered examples of weapons with similar
firing capacities that date back as far as 1580, but it does not
contend that such weapons were widely commercially
available at the time, arguing only that such weapons had
become common “by the time of the Second Amendment’s
incorporation,” apparently referring to 1868. Bumatay
Dissent at 132–134 (citing David B. Kopel, The History of
Firearm Magazines and Magazine Prohibitions, 78 Alb. L.
Rev. 849, 851 (2015)). Judge Bumatay nevertheless
DUNCAN V. BONTA 85
declares that, because regulations targeting high-capacity
magazines did not exist during the Founding Era, they
cannot be considered longstanding regulations under the
“text, history, and tradition” test. Id. at 140–141; see also id.at 137–142.
But, as explained, even taking a generous (to the
Bumatay Dissent) view on what qualifies as “common,” and
even relying on the same source cited by the Dissent, high-
capacity magazines did not become common until the late
nineteenth century or early twentieth century. See Br. of
Amicus Curiae Everytown for Gun Safety in Supp. Of Def.-
Appellant at 4–9; Kopel, supra, at 851. The Bumatay
Dissent’s “text, history, and tradition” framework would
thereby require states to adopt regulations before
circumstances warrant, sometimes before a problem even
exists. Such a requirement would hamstring the ability of
states to regulate nearly any new or emerging weapons
technologies. The “text, history, and tradition” test, as a
result, would fail to comply with McDonald’s instruction
that the Second Amendment must be construed such that
states retain the ability to “devise solutions to social
problems that suit local needs and values” and to
“experiment[] with reasonable firearms regulations.”
561 U.S. at 785 (plurality opinion). 4
4
The dissents assert that the Second Amendment right has been
treated as if it were “disfavored.” See, e.g., Bumatay Dissent at 111–
112; VanDyke Dissent at 145–146. But in terms of what the Second
Amendment protects, the Supreme Court explained in Heller that the
Second Amendment right has long existed in harmony with reasonable
regulation, and the Court approved a non-exhaustive range of
presumptively lawful regulations, without announcing any criteria for
determining whether non-listed kinds of arms regulations are or are not
lawful. 554 U.S. at 626–27; see also, e.g., Blocher & Miller, supra, at
86 DUNCAN V. BONTA
In terms of methodology, Judge Bumatay does not
explain how he approached the historical research
underlying the observations made in his opinion. Although
such methodological disclosures are not common in judicial
opinions, they are standard in academic articles, and for
good reason. As explained above, see supra pp. 65–68, even
slightly defective methodology can undermine the
persuasive force of research, and historiographical research
is full of potential methodological pitfalls. How large is the
pool of available evidence that the Bumatay Dissent drew
upon? Is it large enough that we may glean reliable
conclusions from it? Did the Dissent draw from that pool in
a fashion that would reflect the range of differing opinions
throughout history on gun ownership and gun regulation,
such as by ensuring that its sources came from differing
geographical regions and from both urban and rural areas?
Is it possible the Bumatay Dissent relies upon inaccurate
sources, or sources that include bias imparted by the author?
Is it possible that Judge Bumatay approached the research
with a desire to find a clear answer—not any particular clear
answer—to the legal question in this case, such that the
research process itself became skewed? Were the
individuals who performed the key research tasks for the
Bumatay Dissent aware of cognitive biases like confirmation
bias and anchoring bias, and did those individuals actively
seek to counteract the impact of such biases on their
research?
185. And there are several prominent examples of state and federal
courts striking down gun regulations that press those indistinct
boundaries. Id. at 185–86; see also Principal Opinion at 41–42.
DUNCAN V. BONTA 87
The truth is, we simply do not know the answer to those
questions, and the “text, history, and tradition” test is not
designed to supply readers with those answers. As a result,
we cannot be confident in the validity of the observations
made in the Bumatay Dissent. In contrast, the two-step,
tiered scrutiny approach embraced by the principal opinion,
as I will explain in more detail in Part III, relies on a familiar,
well-established methodology that requires judges to
expressly disclose, on the public record, the reasoning that
guides their decision in any given case. And it is designed
to accommodate situations where evidence of history and
tradition is conflicting or inconclusive. In this respect, the
two-step, tiered scrutiny approach represents a superior
framework for adjudicating Second Amendment
controversies involving the constitutionality of discrete
regulations.
III.
Looking in detail at the attributes of the two-step, tiered
scrutiny approach more broadly, I begin from the established
proposition that the Second Amendment is “not unlimited.”
Heller, 554 U.S. at 595. Although its reach extends to
modern weapons just as the First Amendment protects
modern forms of speech and the Fourth Amendment applies
to searches of modern forms of technology, id. at 582, the
Second Amendment has multiple limitations. It does not
prevent regulation aimed at “dangerous or unusual”
weapons, including complete bans on such weapons. Id.
at 623, 627. It does not undermine the validity of
“longstanding prohibitions” such as laws that prevent
firearms from being carried into schools. Id. at 626–27. And
it “by no means eliminates” a state’s ability “to devise
solutions to social problems that suit local needs and values,”
and to “experiment[] with reasonable firearms regulations.”
88 DUNCAN V. BONTA
McDonald, 561 U.S. at 785 (plurality opinion). Because the
Second Amendment provides nuanced, not absolute,
protection to individuals’ right to keep and bear arms for
self-defense, and because, for the reasons I surveyed, the
“text, history, and tradition” test cannot meaningfully and
predictably resolve which discrete regulations accord with
the Amendment’s protections, see supra Parts I, II, some
other method of structuring judicial inquiry into that
question is needed.
As the principal opinion explains, the two-step
approach—which provides for both a historical inquiry and
a tiered scrutiny inquiry similar to that used to apply other
constitutional protections to discrete and variable
regulations—has been embraced by the federal courts of
appeal. Principal Opinion at 23–24. A consideration of the
theoretical and historical underpinnings of the tiers of
scrutiny indicates that the two-step approach represents a
well-established framework for guiding and openly
communicating, as opposed to hiding, a court’s dual
attention to historical background as well as to the real-world
burdens and the governmental concerns at stake. The
principal opinion’s two-step, tiered scrutiny approach, in
particular, is in no way the free-for-all vehicle for sanitizing
judges’ policy preferences that Judge Bumatay makes it out
to be. To the contrary, the set of prescribed steps embedded
in the tiers of scrutiny demand self-awareness on the part of
judges and lead to a public-facing decisionmaking process
grounded in an evidentiary record.
A.
Lochner v. New York, 198 U.S. 45 (1905), can be viewed
as the “starting point” for the development of each of the
three tiers of scrutiny. See Donald L. Beschle, No More
Tiers?: Proportionality as an Alternative to Multiple Levels
DUNCAN V. BONTA 89
of Scrutiny in Individual Rights Cases, 38 Pace L. Rev. 384,
387–88 (2018); see also Moshe Cohen-Eliya & Iddo Porat,
American Balancing and German Proportionality: The
Historical Origins, 8 Int’l J. Const. L. 263, 280 (2010).
There were three opinions in Lochner. Justice Peckham’s
opinion for the majority held that the “right” of employers
and employees to contract with one another regarding
working conditions was subsumed within the Fourteenth
Amendment’s Due Process Clause. Lochner, 198 U.S.
at 53–54. For New York’s statute limiting the working
hours of bakers to survive review, Justice Peckham wrote,
the government would need to satisfy an exacting test:
demonstrating that the statute had a “direct relation” and was
“necessary” to serve an “appropriate and legitimate” state
interest, such as the state’s interest in health and safety. Id.at 56–58. The opinion went on to invalidate the statute,
concluding that the government failed to carry its burden
under that test. Id. at 64–65. Over time, Justice Peckham’s
somewhat familiar test “evolve[d] into the modern strict
scrutiny test.” Beschle, supra, at 388.
Justice Holmes, in dissent, advocated on behalf of a
substantially more deferential approach, whereby the statute
would be invalidated only if it was clear that any “rational
and fair man necessarily would admit that the statute
proposed would infringe fundamental principles.” Lochner,
198 U.S. at 76 (Holmes, J., dissenting). The Holmes dissent
may therefore be viewed as an early predecessor of the
rational basis test. Justice Harlan, also in dissent, struck a
middle ground. He agreed with Justice Holmes that any
“liberty of contract” implicit in the Constitution may be
constitutionally subject to regulation that “the state may
reasonably prescribe for the common good and the well-
being of society.” Id. at 68 (Harlan, J., dissenting). But his
proposed approach was not nearly as deferential as Justice
90 DUNCAN V. BONTA
Holmes’s. Instead, he would have required the state to
produce a reasonable amount of evidence in support of the
regulation before it could be found valid. Id. at 69–74. This
middle-of-the-road alternative can be characterized as a
forebear to intermediate scrutiny.
Although Lochner did not survive the test of time, “a
significant question remained” regarding whether the
analytical frameworks employed by Justices Peckham,
Holmes, and Harlan were themselves inappropriate, as
opposed to being inappropriately applied in that case. Id. at
389. The Supreme Court began addressing this question in
the late 1930s, ultimately embracing the use of heightened
scrutiny in a variety of cases. Id.; Cohen-Eliya & Porat,
supra, at 282–83. In United States v. Carolene Products
Co., 304 U.S. 144 (1938), for instance, the Supreme Court
clarified that heightened scrutiny is appropriate when a court
evaluates any one of three types of legislation: a statute in
conflict with a fundamental right such as those enumerated
in the Bill of Rights, a statute that undermines the healthy
functioning of our democracy, or a statute that harms
“discrete and insular minorities.” Id. at 152 n.4.
From the 1960s through the 1980s, the strict scrutiny test
became entrenched in constitutional decisionmaking and
was gradually shaped into the familiar two-part standard that
requires government actors to demonstrate that a statute has
a compelling underlying purpose, and that the statute is
necessary—meaning there are not any less restrictive
alternatives—to achieve the relevant purpose. See, e.g.,
Palmore v. Sidoti, 466 U.S. 429, 432–33 (1984); Regents of
the Univ. of Cal. v. Bakke, 438 U.S. 265, 290–91 (1978);
Loving v. Virginia, 388 U.S. 1, 11 (1967); Harper v. Va.
State Bd. of Elections, 383 U.S. 663, 670 (1966);
McLaughlin v. Florida, 379 U.S. 184, 191–92 (1964);
DUNCAN V. BONTA 91
NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 307–08
(1964); see also Richard H. Fallon, Jr., Strict Judicial
Scrutiny, 54 UCLA L. Rev. 1267, 1273–85 (2007). The
earliest applications of the strict scrutiny test included,
among other subjects, racial discrimination cases involving
the Equal Protection Clause, e.g., Palmore, 466 U.S. at 432–
33, free speech cases, e.g., Flowers, 377 U.S. at 307–08, and
voting rights cases, e.g., Harper, 383 U.S. at 670. Each
application fell within at least one of the three buckets
outlined in the Carolene Products footnote four. Rational
basis review also became widespread during the same
period, applying in essentially all other cases. See, e.g.,
Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 469
(1981); N.D. State Bd. of Pharmacy v. Snyder’s Drug Stores,
Inc., 414 U.S. 156, 164–67 (1973); Ferguson v. Skrupa,
372 U.S. 726, 728–29 (1963).
Around this time, constitutional scholars such as
Professor Gerald Gunther voiced a concern that strict
scrutiny was overly harsh, as it was “strict in theory, [but]
fatal in fact.” Adam Winkler, Fatal in Theory and Strict in
Fact: An Empirical Analysis of Strict Scrutiny in the Federal
Courts, 59 Vand. L. Rev. 793, 794 (2006). Others lamented
that rational basis scrutiny veered too far in the opposite
direction, leading to essentially per se findings of validity in
every case where it applied. Beschle, supra, at 392. There
was a sense that the two-tiered system of judicial scrutiny
was lacking, and that some middle ground was needed. Id.
at 393. After a series of cases in which the Supreme Court
nominally applied rational basis review to gender
discrimination claims but engaged in an analysis that
appeared much more like strict scrutiny review, see
Weinberger v. Weisenfeld, 420 U.S. 636, 642–45, 648–53
(1975); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632,
639–48 (1974); Reed v. Reed, 404 U.S. 71, 74–77 (1971),
92 DUNCAN V. BONTA
the Supreme Court eventually expressly adopted a new tier
of scrutiny, one that was less exacting than strict scrutiny but
more rigorous than rational basis review, see Craig v. Boren,
429 U.S. 190, 197–98 (1976); see also Plyler v. Doe,
457 U.S. 202, 215–21 (1982). The middle-ground approach
that had its roots in Justice Harlan’s Lochner dissent
developed into what is now referred to as intermediate
scrutiny. Beschle, supra, at 393–94.
Although the development of intermediate scrutiny
created a more nuanced version of the tiered system of
judicial scrutiny in constitutional cases, a perception
persisted that it may be useful for the tiers of scrutiny both
to become less rigid and to include more context-specific
guidance. Id. at 394–97. Over time, these critiques were
met with changes to the tiered scrutiny method of analysis.
For example, differing tests that embed a tiered scrutiny
method of review have arisen in free speech cases, such that
a slightly different structure of analysis applies depending on
whether the speech is commercial in nature or occurs in a
public forum, as well as whether a disputed regulation
targets specific speech-related content, including by
targeting a specific viewpoint. See, e.g., Central Hudson
Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S.
557, 566 (1980) (commercial speech regulation); Carey v.
Brown, 447 U.S. 455, 461–62 (1980) (public forum speech
regulation); Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180,
189 (1997) (content-neutral speech regulation); Perry Educ.
Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 48–49
(1983) (content-based speech regulation); see also R.
Randall Kelso, The Structure of Modern Free Speech
Doctrine: Strict Scrutiny, Intermediate Review, and
“Reasonableness” Balancing, 8 Elon L. Rev. 291, 292–95
(2016). Numerous cases have also applied strict scrutiny and
rational basis review more flexibly, such that per se findings
DUNCAN V. BONTA 93
of validity and invalidity have become less common. See,
e.g., Romer v. Evans, 517 U.S. 620, 631–36 (1996); City of
Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439–
42 (1985); Grutter v. Bollinger, 539 U.S. 306, 326–44
(2003); see also Marcy Strauss, Reevaluating Suspect
Classification, 35 Seattle U. L. Rev. 135, 135–36 n.5
(2011). Thus, more than one hundred years after Lochner
first aired the predecessors of the various available
approaches, the tiered scrutiny method of analysis has
developed into a framework that serves to guide and
constrain judicial decisionmaking across a variety of
scenarios. Although imperfect, the tiered scrutiny method of
analysis has risen to the challenge of providing a structured
framework for adjudicating cases involving individual
rights.
B.
Today, a heightened tier of scrutiny applies when courts
evaluate a wide range of legal claims, including equal
protection claims involving suspect and quasi-suspect
classifications; claims involving fundamental rights such as
the right to vote, the right to free speech, and the right to
freely exercise one’s religion; and claims involving the
inverse commerce clause. See, e.g., Loving, 388 U.S. at 11(race discrimination); Craig, 429 U.S. at 197–98 (gender
discrimination); Clark v. Jeter, 486 U.S. 456, 465 (1988)
(legitimate parenthood discrimination); Burdick v. Takushi,
504 U.S. 428, 432–34 (1992) (right to vote); Central Hudson
Gas & Elec. Corp., 447 U.S. at 566 (commercial speech
regulation); Turner Broad. Sys., Inc., 520 U.S. at 189(content-neutral speech regulation); Fulton v. City of
Philadelphia, 141 S. Ct. 1868, 1876–77 (2021) (free exercise
of religion); Tenn. Wine & Spirits Retailers Ass’n v. Thomas,
139 S. Ct. 2449, 2467–68 & n.11, 2473–74 (2019) (inverse
94 DUNCAN V. BONTA
commerce clause); see also Aharon Barak, Proportionality:
Constitutional Rights and Their Limitations 510–11 (2012).
The second stage of the principal opinion’s two-step
approach, as mentioned, analyzes the degree to which an
arms-related regulation burdens the Second Amendment
right when determining whether to apply strict scrutiny,
intermediate scrutiny, or “no scrutiny at all (as in Heller).”
Principal Opinion at 25. Of the established, non-Second
Amendment tiered scrutiny frameworks, this aspect of the
two-step, tiered scrutiny approach is perhaps most analogous
to the Anderson-Burdick doctrine used for election and
voting rights cases. Under that doctrine, the rigor of a court’s
inquiry into the validity of an election-related regulation
depends upon the extent to which the challenged regulation
burdens constitutional rights, such as the right to vote.
Burdick, 504 U.S. at 432–34. If the right to vote is severely
burdened, strict scrutiny applies. Id. If the right to vote is
burdened in a “reasonable” manner, then less rigorous
scrutiny applies instead. Id.; see also Dean Milk Co. v. City
of Madison, 340 U.S. 349, 353–54 (1951) (applying a similar
framework to disputes involving the inverse commerce
clause).
Use of the two-step, tiered scrutiny approach for Second
Amendment cases, then, represents yet another instantiation
of the tiered method of analysis evolving to meet the filtering
needs of various contextual scenarios involving
constitutional rights. No reason has been suggested, in the
dissents in this case or elsewhere, as to why a well-
established structure for constitutional adjudication should
apply to a wide range of constitutional protections but not to
the Second Amendment.
We adopted the two-step approach for Second
Amendment claims in United States v. Chovan, 735 F.3d
DUNCAN V. BONTA 95
1127 (9th Cir. 2013). There, we reviewed and analyzed
other Circuits’ application of the two-step inquiry and
explained that the two-step approach “reflects the Supreme
Court’s holding in Heller that, while the Second Amendment
protects an individual right to keep and bear arms, the scope
of that right is not unlimited.” Id. at 1136. As Chovan
suggests, we adopted the two-step approach because it
provides crucial guideposts that assist and constrain our
inquiry once we move beyond assessing the overall scope of
the Second Amendment and into applying the Amendment
to a specific measure or regulation. This aspect of the two-
step approach is, indeed, its greatest asset. The elements of
a heightened scrutiny analysis are fixed and widely known,
lending themselves to a mode of reasoning and explication
on the part of judges that disciplines the judicial inquiry and
is accessible to the litigants and the public. Application of
the two-step approach to the Second Amendment is therefore
likely to promote both judicial introspection and public
insight into the judicial decisionmaking process.
Use of the two-step approach may also encourage
participation in the development of an understanding about
the constitutional reach of the Second Amendment by the
other branches of government, nationally and locally.
Because the tiers of scrutiny offer a clear structure that
communicates to the audiences of judicial opinions the type
and sequence of arguments that must be made to ensure that
a piece of legislation or other governmental enactment
survives constitutional review, application of the tiered
scrutiny approach may encourage legislators and other
government actors carefully to assess whether their actions
have a proper purpose and are appropriately tailored to
serving that purpose. In other words, judicial review under
the two-step, tiered scrutiny approach would have a
96 DUNCAN V. BONTA
disciplining effect not only on the judiciary, but on
lawmakers as well.
The tiered method of scrutiny may also assist courts in
isolating “process failures” in the legislative process. Vicki
C. Jackson, Constitutional Law in an Age of Proportionality,
124 Yale L.J. 3094, 3151 (2015). As the Bumatay Dissent
acknowledges, see Bumatay Dissent at 103–104, 110, one of
the primary functions of the judiciary is to ensure that the
legislative process is not systemically infected by “process
failures,” which arise when lawmakers, either consciously or
subconsciously, allow prejudice or discrimination to shape
the law. John Hart Ely, Democracy and Distrust: A Theory
of Judicial Review 102–04 (1980). But as I have explained,
the “text, history, and tradition” approach is ill-suited to that
end. See supra Parts I, II.
In contrast, at the second stage of the two-step, tiered
scrutiny approach, a court must carefully consider—as the
principal opinion does here, see Principal Opinion at 30–
40—the parties’ submissions and the evidentiary and
legislative record to assess the degree of impact a particular
regulation has on the Second Amendment right. Having
done so, the court then chooses which level of scrutiny is
appropriate and applies the prescribed level of rigor to its
assessment of both the interests that gave rise to the
regulation and—again, after detailed attention to the parties’
submissions and the evidentiary and legislative records—the
degree to which the regulation advances that asserted
interest. Because heightened scrutiny requires the
government to both articulate a justification for its disputed
action and provide an evidentiary record supporting that
justification, it is likely to smoke out process failures. At the
same time, because legislators are aware of this fact,
application of the two-step approach may also produce front-
DUNCAN V. BONTA 97
end incentives that prevent many process failures from
occurring in the first place. Application of the tiered scrutiny
approach may thereby facilitate judicial oversight into
whether the legislative branch is acting impartially and
responsibly, with due regard to the underlying constitutional
protection.
Rejecting this process-oriented mode of protecting
constitutional rights as unreliable, Judge Bumatay
characterizes the two-step, tiered scrutiny approach as
“nothing more than a black box used by judges to uphold
favored laws and strike down disfavored ones.” Bumatay
Dissent at 104. He is mistaken. For the reasons explained,
the two-step approach is not an invitation to engage in
freewheeling judicial decisionmaking or generalized
interest-balancing. Instead, it prescribes a careful, structured
evaluation that is preserved for posterity and based on an
evidentiary record. The two-step, tiered scrutiny approach
thus places a heavy burden on the state to justify any
intrusions into individual rights and, again, requires judges
to explain their decisions in an accessible, transparent
fashion that encourages public oversight.
To be sure, analyses of this kind can be poorly done, and
in any specific instance may or may not succeed in
uncovering and minimizing the impact of judges’ policy
preferences on the outcome of the case. But where there is
such failure, the failure will be exposed via ascertainable
lapses in the court’s logical or factual analysis, giving rise to
either critiques by other courts or reversal on appeal. So the
process-structuring aspects of the tiered scrutiny approach
constrain the ability of the judicial system as a whole to
allow personal policy preferences to determine outcomes,
whether or not the process has the same success in each
opinion written. The “text, history, and tradition”
98 DUNCAN V. BONTA
framework offers none of these benefits. It provides no
guidelines for the many cases in which the historical record
is inconclusive, and thereby both invites biased
decisionmaking and shrouds that decisionmaking in secrecy.
The Bumatay Dissent further asserts that the Supreme
Court already rejected the two-step, tiered scrutiny approach
when it “bristled” at the suggestion in Justice Breyer’s
dissent that courts should engage in a “freestanding ‘interest
balancing’ approach” when adjudicating Second
Amendment cases. Id. at 112–115 & n.10 (quoting Heller,
554 U.S. at 634). But, in fact, Justice Breyer’s proposal was
a thinly veiled reference to the proportionality test, the
dominant international framework for adjudicating gun
rights cases. See, e.g., Moshe Cohen-Eliya & Iddo Porat,
The Hidden Foreign Law Debate in Heller: The
Proportionality Approach in American Constitutional Law,
46 San Diego L. Rev. 368, 369–70 (2009). Although the
proportionality test has some broad similarities to the tiers of
scrutiny, comparative law theorists note that the tiered
scrutiny approach offers substantial benefits that the
proportionality approach lacks. Namely, the proportionality
approach directs judges to engage in a case-by-case
weighing analysis that assesses whether the benefits of a
disputed policy outweigh or are sufficient to justify the
degree of intrusion into the right at issue in the case. Id.at 380–81. The tiers of scrutiny, in contrast, supply a pre-
determined weighing calculus triggered by the details of
each case. Barak, supra, at 512, 521–22. In other words, the
tiered scrutiny approach provides a real check on judicial
power, because much of the central weighing analysis in
each case is not within the control of individual judges and
is instead “bounded” by a pre-existing categorical
framework. Id. Once again, this aspect of the tiered scrutiny
approach cabins judicial discretion and promotes long-run
DUNCAN V. BONTA 99
objective decisionmaking, to the degree such
decisionmaking is possible.
Finally, the Bumatay Dissent states that this Circuit’s
precedent regarding intermediate scrutiny in Second
Amendment cases has “dispense[d] with the requirement of
narrow tailoring” by adopting a “reasonable fit” tailoring
requirement. Bumatay Dissent at 111 n.8. But Vivid
Entertainment, LLC v. Fielding, 774 F.3d 566 (9th Cir.
2014), the case cited by the Dissent for the proposition that
intermediate scrutiny ordinarily requires “narrow tailoring,”
clarified that “[i]n order to be narrowly tailored for purposes
of intermediate scrutiny,” the regulation need not be the least
restrictive means of achieving the government interest, as
the requirement is “satisfied so long as the regulation
promotes a substantial government interest that would be
achieved less effectively absent the regulation.” Id. at 580.
Our Second Amendment case law defines the “reasonable
fit” requirement in exactly the same way, noting that
although a firearm regulation need not utilize the least
restrictive means of achieving its underlying objective, it
must “promote a substantial government interest that would
be achieved less effectively absent the regulation.” See, e.g.,
Mai v. United States, 952 F.3d 1106, 1116 (9th Cir. 2020),
reh’g denied, 974 F.3d 1082 (2020), cert. denied, 141 S. Ct.
2566 (2021); United States v. Torres, 911 F.3d 1253, 1263
(9th Cir. 2019); Fyock, 799 F.3d at 1000. There is therefore
no merit to the suggestion that the Ninth Circuit’s
application of intermediate scrutiny in Second Amendment
cases is somehow less exacting than its application of the
standard in other kinds of cases.
Further, Judge Bumatay cites no precedent in support of
his assertion that intermediate scrutiny review would allow
the government to justify a policy on grounds that are not
100 DUNCAN V. BONTA
“genuine.” Bumatay Dissent at 111 n.8. To the contrary, in
cases where intermediate scrutiny applies, the burden falls
on the government to demonstrate that an important interest
underlies the policy, and that interest “must be genuine, not
hypothesized or invented post hoc in response to litigation.”
United States v. Virginia, 518 U.S. 515, 533 (1996); see also,
e.g., Karnoski v. Trump, 926 F.3d 1180, 1199–1202 (9th Cir.
2019).
CONCLUSION
Rather than representing a “much less subjective”
framework for decisionmaking in Second Amendment cases
involving discrete arms regulations, Bumatay Dissent
at 121, the “text, history, and tradition” test obscures the
myriad indeterminate choices that will arise in most such
cases. The tiered scrutiny approach, in contrast, serves to
guide and constrain a court’s analysis in Second Amendment
disputes regarding discrete arms regulations, as it has done
for numerous other constitutional provisions. I therefore
have no doubt that the principal opinion in this case properly
rejects the Bumatay Dissent’s invitation to abandon the
tiered scrutiny approach for adjudicating Second
Amendment controversies involving discrete regulations in
favor of the “text, history, and tradition” approach. We are
very wise not to do so, for all of the reasons I have explained.
HURWITZ, Circuit Judge, concurring:
I join Judge Graber’s opinion for the Court unreservedly.
I ordinarily would not say more, but I am reluctantly
compelled to respond to the dissent of my brother Judge
VanDyke, who contends that the “majority of our court
distrusts gun owners and thinks the Second Amendment is a
DUNCAN V. BONTA 101
vestigial organ of their living constitution.” That language
is no more appropriate (and no more founded in fact) than
would be a statement by the majority that today’s dissenters
are willing to rewrite the Constitution because of their
personal infatuation with firearms. Our colleagues on both
sides of the issue deserve better.
I recognize that colorful language captures the attention
of pundits and partisans, and there is nothing wrong with
using hyperbole to make a point. But my colleague has no
basis for attacking the personal motives of his sisters and
brothers on this Court. His contention that prior decisions of
this Circuit—involving different laws and decided by
different panels—somehow demonstrate the personal
motives of today’s majority fails to withstand even cursory
analysis. By such reasoning, one also would have to
conclude that my friends in today’s minority who, like me,
are deciding a Second Amendment case for the first time, are
also driven by personal motives.
Judge VanDyke has no way of knowing the personal
views of other members of the Court about firearms. Indeed,
members of the Court not among today’s dissenters have
firearms in their homes. Members of this Court not among
today’s dissenters have volunteered for service in the active
military or the National Guard (the modern “well regulated
Militia”) and bore arms during that service. But those
personal experiences—or the lack of them—do not drive the
decision on the important issue at hand. That issue is
whether the people of the State of California are forbidden
by the United States Constitution to enact measures like the
contested statute to protect themselves from gun violence.
Reasonable judges can disagree as to whether the
California statute crosses a constitutional line. I believe that
Judge Graber has persuasively explained why it does not.
102 DUNCAN V. BONTA
But I do not question the personal motives of those on the
other side of that issue. On the seriousness of the problem
that California seeks to address, however, there should be no
dispute. However infrequent mass shootings may be, hardly
anyone is untouched by their devastation. The Ninth Circuit
lost one of its own, Chief Judge Roll of the District of
Arizona, to precisely such a shooting, notwithstanding Judge
VanDyke’s assumption that federal judges are somehow
immune from such dangers. Other members of the Court
have lost family and friends to gun violence. I recount these
matters of common knowledge not, as Judge VanDyke
suggests, to import my personal experiences into the
decision-making process in this case, but instead to
emphasize that despite the alleged “infrequency” of mass
shootings, they have effects far beyond the moment that are
the proper subject of legislative consideration. And, to the
extent that the frequency of such carnage is relevant, surely
the people and their elected representatives are far better
situated in the first instance than we to make that
determination. The people of California should not be
precluded from attempting to prevent mass murders simply
because they don’t occur regularly enough in the eyes of an
unelected Article III judge.
The crucial issue here is what level of scrutiny to apply
to the California law. We can respectfully disagree whether
the measures California has adopted violate the Second
Amendment. But an attack on the personal motives of the
members of this Court who reach the same result in this case
as every other Circuit to address this issue neither advances
our discourse nor gives intellectual support to the legal
positions argued by my respected dissenting colleagues. I
start from the assumption that Judge VanDyke, whose
dissent displays an admirable knowledge of firearms and
ammunition, dissents today not because of his personal
DUNCAN V. BONTA 103
experiences or policy preferences but instead because he
sincerely believes that his oath of fidelity to the Constitution
requires that we invalidate what our colleague Judge Lee
described in the now-vacated majority opinion for the three-
judge panel as a “well-intentioned” law designed by the
sovereign state of California to “curb the scourge of gun
violence.” Duncan v. Becerra, 970 F.3d 1133, 1140–41 (9th
Cir. 2020). I simply ask that today’s majority, each of whom
took the very same oath, be treated with the same level of
respect.
BUMATAY, Circuit Judge, with whom IKUTA, and R.
NELSON, Circuit Judges, join, dissenting:
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-
104 DUNCAN V. BONTA
capacity magazines. 1 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
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.”
DUNCAN V. BONTA 105
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.
I. Factual Background
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
106 DUNCAN V. BONTA
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.
II. Legal Background
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.” 2
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
2
Letter from Richard Henry Lee to Governor Edmund Randolph
(Oct. 16, 1787), https://archive.csac.history.wisc.edu/Richard_Henry_L
ee_to_Edmund_Randolph.pdf.
DUNCAN V. BONTA 107
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. 3
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.” 4
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).
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).
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).
108 DUNCAN V. BONTA
III. California’s Large-Capacity Magazine Ban Is
Unconstitutional
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.
A. Heller’s Analytical Framework
1. The Supreme Court Rejected an Interest-
Balancing Test
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
DUNCAN V. BONTA 109
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. 5
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.,
110 DUNCAN V. BONTA
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. 6 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. 7
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.”).
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.
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.,
DUNCAN V. BONTA 111
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. 8 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
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.
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.
112 DUNCAN V. BONTA
a blank check to lawmakers to infringe on the Second
Amendment right. Indeed, post-Heller, we have never
struck down a single firearms regulation. 9
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:
9
See footnote 6.
DUNCAN V. BONTA 113
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. 10
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
114 DUNCAN V. BONTA
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 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).
DUNCAN V. BONTA 115
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, Caetano 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
116 DUNCAN V. BONTA
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
DUNCAN V. BONTA 117
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).) 11
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
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.
118 DUNCAN V. BONTA
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).
DUNCAN V. BONTA 119
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.” 12
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
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)).
120 DUNCAN V. BONTA
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.
2. The Supreme Court Looks to Text, History,
and Tradition
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.
DUNCAN V. BONTA 121
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
122 DUNCAN V. BONTA
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.” 13 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. 14 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. 15 This view is not radical. Chief Justice Marshall
13
Frank H. Easterbrook, Foreword to Antonin Scalia and Bryan A.
Garner, Reading Law at xxiii (2012).
14
See generally William Baude, Originalism as a Constraint on
Judges, 84 U. Chi. L. Rev. 2213 (2018).
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
DUNCAN V. BONTA 123
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
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.”).
124 DUNCAN V. BONTA
and practiced the right. 16 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.” 17 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. 18 And interpreting the meaning of documents and
events from long-ago is much harder than simply consulting
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.).
17
Ilan Wurman, Law Historians’ Fallacies, 91 N.D. L. Rev. 161,
171 (2015).
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), https://ssrn.com/abstract=2718777 (describing the wide variety
of available originalist sources such as ratification debates, dictionaries,
treatises, and linguistic corpora).
DUNCAN V. BONTA 125
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. 19 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. 20 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.
B. Under Heller, Large-Capacity Magazine Bans
Are Unconstitutional
With a firm understanding of the approach directed by
Heller, we turn to California’s large-capacity ban.
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.”).
20
See Scalia, supra, at 862–63.
126 DUNCAN V. BONTA
1. Large-capacity magazines are “arms” under
the Second Amendment.
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. 21 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.
21
See Magazine, Oxford English Dictionary Online,
https://www.oed.com/view/Entry/112144; Magazine, Merriam-Webster
Online, https://www.merriam-webster.com/dictionary/magazine.
DUNCAN V. BONTA 127
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. 22
2. Large-capacity magazines are typically
possessed by law-abiding citizens for lawful
purposes.
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). 23
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).
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
128 DUNCAN V. BONTA
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
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.’”).
DUNCAN V. BONTA 129
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
130 DUNCAN V. BONTA
militia service—whether it be in 1791 or today. 24 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
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.
DUNCAN V. BONTA 131
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.
132 DUNCAN V. BONTA
a. Large-capacity magazines enjoy a long
historical pedigree.
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:
• The first known firearm capable of firing more than ten
rounds without reloading was a 16-shooter invented in
1580.
• The earliest record of a repeating firearm in America
noted that it fired more than ten rounds: In 1722, Samuel
Niles wrote of Indians being entertained by a firearm that
“though loaded but once, . . . was discharged eleven
times following, with bullets, in the space of two
minutes.” Harold L. Peterson, Arms and Armor in
Colonial America 1526–1783, 215 (2000).
DUNCAN V. BONTA 133
• At the Founding, the state-of the-art firearm was the
Girandoni air rifle with a 22-shot magazine capacity.
• In 1777, Joseph Belton demonstrated a 16-shot repeating
rifle before the Continental Congress, seeking approval
for its manufacture. Robert Held, The Belton Systems,
1758 & 1784–86: America’s First Repeating Firearms 37
(1986).
• By the 1830s, “Pepperbox” pistols had been introduced
to the American public and became commercially
successful. Depending on the model, the Pepperbox
could fire 5, 6, 12, 18, or 24 rounds without reloading.
• It took several years for Samuel Colt’s revolvers (also
invented in the 1830s) to surpass the Pepperbox pistol in
the marketplace.
• From the 1830s to the 1850s, several more rifles were
invented with large ammunition capacities, ranging from
12- to 38- shot magazines.
• By 1855, Daniel Wesson (of Smith and Wesson fame)
and Oliver Winchester collaborated to introduce the
lever action rifle, which contained a 30-round magazine
that could be emptied in less than one minute. A later
iteration of this rifle, the 16-round Henry lever action
rifle, became commercially successful, selling about
14,000 from 1860 to 1866.
• By 1866, the first Winchester rifle, the Model 1866,
could hold 17 rounds in the magazine and one in the
chamber, all of which could be fired in nine seconds. All
told, Winchester made over 170,000 copies of the from
1866 to 1898. See Norm Flayderman, Flayderman’s
134 DUNCAN V. BONTA
Guide to Antique Firearms and Their Values 268 (6th ed.
1994).
• A few years later, Winchester produced the M1873,
capable of holding 10 to 11 rounds, of which over
720,000 copies were made from 1873 to 1919.
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.
b. Magazines with over ten rounds are widely
used for lawful purposes today.
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. 25
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
DUNCAN V. BONTA 135
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. 26 Indeed, courts
throughout the country agree that large-capacity magazines
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.”).
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
136 DUNCAN V. BONTA
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
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.
DUNCAN V. BONTA 137
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.
3. Bans on large-capacity magazines are not a
presumptively lawful regulatory measure.
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
138 DUNCAN V. BONTA
dangerous, like violent criminals, dates to the Founding. 27
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
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.
DUNCAN V. BONTA 139
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). 28
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
140 DUNCAN V. BONTA
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.
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”).
DUNCAN V. BONTA 141
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. 29 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
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.
142 DUNCAN V. BONTA
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.
IV.
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
DUNCAN V. BONTA 143
fundamental rights protected by the Constitution will be
honored and which will be dispensed with.
We respectfully dissent.
VANDYKE, Circuit Judge, dissenting:
I largely agree with Judge Bumatay’s excellent dissent.
And to paraphrase James Madison, if judges were angels,
nothing further would need be said. But unfortunately,
however else it might be described, our court’s Second
Amendment jurisprudence can hardly be labeled angelic.
Possessed maybe—by a single-minded focus on ensuring
that any panel opinions actually enforcing the Second
Amendment are quickly reversed. The majority of our court
distrusts gun owners and thinks the Second Amendment is a
vestigial organ of their living constitution. Those views
drive this circuit’s caselaw ignoring the original meaning of
the Second Amendment and fully exploiting the discretion
inherent in the Supreme Court’s cases to make certain that
no government regulation ever fails our laughably
“heightened” Second Amendment scrutiny.
This case is par for the course. The majority emphasizes
the statistical rarity of law-abiding citizens’ need to fire more
than an average of 2.2 shots in self-defense, but glosses over
the statistical rarity of the harm that California points to as
supporting its magazine ban. Instead of requiring the
government to make an actual heightened showing, it
heavily weighs the government’s claim that guns holding
more than 10 rounds are “dangerous” (of course they are—
all guns are) against a self-defense interest that the majority
discounts to effectively nothing. Once again, our court
flouts the Supreme Court’s exhortation against such “a
144 DUNCAN V. BONTA
freestanding ‘interest-balancing’ approach” to the Second
Amendment. District of Columbia v. Heller, 554 U.S. 570,
634 (2008).
If the Second Amendment is ever going to provide any
real protection, something needs to change. I have some
suggestions, which I offer below after first discussing some
of the flaws in the majority’s analysis of this case. 1 Until the
Supreme Court requires us to implement a paradigm shift,
the Second Amendment will remain a second-class right—
especially here in the Ninth Circuit.
* * *
It should be presumptively unconstitutional to burden
constitutional rights. But looking at our court’s cases, you
would assume that any burden on the right to bear arms is
presumptively permitted. I’ve described before how our
circuit’s version of Second Amendment “heightened”
scrutiny has no height. It is practically indistinguishable
from rational basis review. See Mai v. United States,
974 F.3d 1082, 1097–106 (9th Cir. 2020) (VanDyke, J.,
dissenting from denial of rehearing en banc). While our
court gives lip service to Heller, its practice of effectively
applying rational basis review ignores Heller’s admonition
that if passing rational basis review was “all that was
required to overcome the right to keep and bear arms . . . the
Second Amendment would be redundant . . . .” Heller,
554 U.S. at 628 n.27.
1
Because Judge Bumatay’s dissent explains at length the
shortcomings of the majority’s analysis, I provide only some
supplemental observations.
DUNCAN V. BONTA 145
The brokenness of our court’s balancing approach is
particularly evident in this case, where the majority weighs
rarity like lead when it favors the ban, but then weighs rarity
like helium when it undermines California’s asserted
interest. On one hand, the majority ignores the fact that
California’s claimed reason for its ban—mass shootings—
involves a harm that, while tragic and attention-grabbing, is
thankfully extremely rare by any statistical metric. You are
much more likely to be randomly injured or killed by a drunk
driver than a mass shooter. But on the other hand, the
majority emphasizes the rarity of any individual American’s
use of ammunition in self-defense, latching onto California’s
argument that only 2.2 rounds are used on average in a self-
defense shooting, and concludes that any more rounds than
that are thus outside the “core” of the Second Amendment.
We might call this Version 2.2 of the Second
Amendment. It cannot be the right way to analyze an alleged
violation of the right to bear arms. The average number of
times that any law-abiding citizen ever needs to “bear arms”
at all in a self-defense situation is far below one—most
people will (thankfully) never need to use a gun to defend
themselves. Thus, applying the majority’s rarity analysis,
possession of a gun itself falls outside the “core” of the
Second Amendment. But we know that cannot be true from
Heller, where the Supreme Court determined “self-defense
. . . was the central component” of the Second Amendment,
notwithstanding the practical infrequency of any particular
person’s need to actually defend herself with a gun. 554 U.S.
at 599.
So the majority’s rarity balancing isn’t just lopsided—it
starts from the wrong premise. We would never treat
fundamental rights we care about this way, particularly those
expressly enumerated in the Constitution. We don’t protect
146 DUNCAN V. BONTA
the free speech of the taciturn less than the loquacious. We
don’t protect the free exercise of religion in proportion to
how often people go to church. We wouldn’t even allow
soldiers to be quartered only in those parts of your house you
don’t use much. Express constitutional rights by their nature
draw brighter and more prophylactic lines—precisely
because those who recognized them were concerned that
people like California’s government and the judges on our
court will attempt to pare back a right they no longer find
useful. This is the sentiment James Madison expressed in
extolling “the wisdom of descrying . . . the minute tax of 3
pence on tea, the magnitude of the evil comprized in the
precedent. Let [us] exert the same wisdom, in watching agst
every evil lurking under plausible disguises, and growing up
from small beginnings.” Madison’s “Detached
Memoranda,” 3 Wm. & Mary Q. (3d ser.) 534, 557–58 (E.
Fleet ed., 1946). The majority here extends our circuit’s
practice of chipping away at a disfavored constitutional
right, replacing the Second Amendment with their 2.2nd
Amendment.
This case is the latest demonstration that our circuit’s
current test is too elastic to impose any discipline on judges
who fundamentally disagree with the need to keep and bear
arms. I consequently suggest two less manipulable tests the
Supreme Court should impose on lower courts for analyzing
government regulations burdening Second Amendment
rights, replacing the current malleable two-step, two-
pronged inquiry with something that would require courts to
actually enforce the second provision of the Bill of Rights.
First, the Supreme Court should elevate and clarify
Heller’s “common use” language and explain that when a
firearm product or usage that a state seeks to ban is currently
prevalent throughout our nation (like the magazines
DUNCAN V. BONTA 147
California has banned here), then strict scrutiny applies.
Second, the Court should direct lower courts like ours to
compare one state’s firearm regulation to what other states
do (here a majority of states allow what California bans), and
when most other states don’t similarly regulate, again, apply
strict scrutiny. Where many law-abiding citizens seeking to
prepare to defend themselves have embraced a particular
product or usage, or the majority of states have not seen a
necessity to restrict it, real heightened scrutiny should be
required instead of allowing our court to sloppily balance the
citizen’s “need” against the government’s claimed “harm.”
No doubt these proposed tests are not perfectly
satisfying—doctrinally or academically. Few actual legal
tests are, since the application of legal rules happens in the
messiness of the real world. Nor would these suggested tests
address every situation. Judge Berzon observes, for
example, that under the “common use” test I seek to
invigorate, gun-adverse states like California will
predictably react to new technologies by trying to kill the
baby in the cradle—immediately banning any new
technology before it can become “commonly used.” Perhaps
so, but those are difficulties at the margin. Right now, as I
discuss further below, we have a Second Amendment test
that enables zero enforcement in this circuit. Ultimately,
Judge Bumatay’s and Judge Berzon’s opinions converge at
one very important point: neither our current two-step test
nor any proposed alternative that allows much interpretative
or balancing discretion will ultimately lead to consistent and
rigorous enforcement of the Second Amendment—
particularly with the many judges who disagree with its very
148 DUNCAN V. BONTA
purpose. 2 It’s now beyond obvious that you can’t expect our
court to faithfully apply any Second Amendment test that
allows us to exercise much discretion. Many fundamental
rights are protected by more bright-line tests. 3 It’s past time
we bring that to the Second Amendment.
I. The Majority Takes Our Circuit’s “Heightened”
Scrutiny to a New Low.
I’ve observed before how, for Second Amendment cases,
our circuit has “watered down the ‘reasonable fit’ prong of
intermediate scrutiny to little more than rational basis
review,” starting by borrowing an inapt test from the First
Amendment context and then weakening it with each
passing case upholding government restrictions. Mai,
974 F.3d at 1101–04 (VanDyke, J., dissenting from denial of
rehearing en banc). This case furthers that trend. Instead of
“demand[ing] a closer regulatory fit for a law that directly
burdens a fundamental right,” our en banc court fails to
apply any “real heightened scrutiny, or even just faithfully
appl[y] the [heightened scrutiny] test as articulated in”
comparable First Amendment jurisprudence. Id. at 1104.
2
To be clear, I think Judge Bumatay has penned an exemplary
dissent addressing “text, tradition, and history.” My objection is not that
judges cannot do good analysis under this framework, but rather that
without a more bright-line test there is far too much opportunity for
manipulation, especially with a right as unpopular with some judges as
the Second Amendment.
3
See David B. Kopel & Joseph G.S. Greenlee, The Federal Circuits’
Second Amendment Doctrines, 61 ST. LOUIS U.L.J. 193, 303 (2017)
(“Bright-line rules declaring certain government actions categorically
unconstitutional, without the need for a means/ends test, are common in
constitutional law. They are found in the First Amendment, Fifth
Amendment, Sixth Amendment, Eighth Amendment, Tenth
Amendment, and Fourteenth Amendment.”) (footnotes omitted).
DUNCAN V. BONTA 149
Indeed, notwithstanding our court’s early commitment that
“we are . . . guided by First Amendment principles” in
applying the Second Amendment, Jackson v. City & Cnty.
of San Francisco, 746 F.3d 953, 961 (9th Cir. 2014), it is
telling that comparisons between the First and Second
Amendment in this latest case have largely been dropped by
the majority and relegated to concurring opinions—likely
because it gets embarrassing and wearisome to constantly
rationalize why we treat the Second Amendment so
differently than its close constitutional neighbor.
In analyzing whether California’s magazine ban violates
the Second Amendment, the majority here follows a now
well-traveled path. It starts like many of our Second
Amendment cases: by assuming, instead of deciding, that the
Second Amendment even applies to California’s ban. See,
e.g., Mai v. United States, 952 F.3d 1106, 1114–15 (9th Cir.
2020); Pena v. Lindley, 898 F.3d 969, 976 (9th Cir. 2018);
Fyock v. City of Sunnyvale, 779 F.3d 991, 997 (9th Cir.
2015). 4 This itself is very telling. It emphasizes the practical
4
The majority claims that the current two-step inquiry “faithfully
adheres” to Heller, since “history, text, and tradition greatly inform step
one of the analysis . . . .” But this only illustrates my point about the
malleability of our current framework. Our court consistently uses step
one of our test to either: (1) wade through the complicated history to
conclude the regulation does not burden conduct protected by the Second
Amendment at all, see, e.g., Young v. Hawaii, 992 F.3d 765, 785 (9th
Cir. 2021) (en banc) (“As we might expect in this area, fraught with
strong opinions and emotions, history is complicated, and the record is
far from uniform.”); or (2) as here, side-step this inquiry altogether by
assuming the conduct implicates the Second Amendment, only to uphold
the regulation at step two by applying an extremely loose balancing test
(more on that below). It’s clear that history, text, and tradition is
currently comatose in our circuit’s jurisprudence enforcing the Second
Amendment—we only rely on it when deemed useful to support the
150 DUNCAN V. BONTA
vacuity of the second step in our court’s two-step test. The
reason it is so effortless for our court to “assume” that the
Second Amendment applies is because the plaintiff will
always lose at our court’s step-two intermediate scrutiny. If
we genuinely applied any form of heightened scrutiny, we
would have to be more careful and concise about what
activity or item warrants protection under the Second
Amendment. And something is wrong when most of our
court’s judges can’t bring themselves to say the Second
Amendment actually covers anything beyond a Heller-style
total handgun ban. It’s the judicial equivalent of holding
your nose.
After the majority here assumes that California’s
magazine ban “implicates” the Second Amendment at step
one of our test, at step two it concludes that banning the most
commonly purchased magazine used in handguns for self-
defense only places a “small burden” on the exercise of the
right to bear arms and thus only intermediate scrutiny
applies. And by this point we all know what that means: the
regulation burdening the citizens’ Second Amendment
rights always wins under our version of Second Amendment
“intermediate scrutiny.” Repeatedly characterizing the
legislation as a “minimal burden,” the majority decries any
possible need for the banned magazines and relies heavily
on the rarity of their full use in self-defense, while giving no
weight to the effectiveness of such magazines in self-
defense.
Building on this rationale, Judge Graber’s concurrence
provides a list of unrealistic alternatives one could use in lieu
of a higher-capacity magazine: carry multiple guns; carry
conclusion that something falls outside our court’s illusory Second
Amendment protection.
DUNCAN V. BONTA 151
extra magazines; carry some loose rounds in your pocket;
carry a cop (okay, I made that last one up). I doubt many
who actually carry a gun for self-defense would find these
alternatives realistic. And the majority references no
“heightened” showing made by the government, other than
listing past tragic events across the nation in which criminals
misused guns. Those events were, of course, horrific. But
citing select (and in this case, statistically very rare)
examples of misuse cannot be a basis to overcome the
Second Amendment. If it was, then the much more prevalent
misuse of guns in criminal activity generally would suffice
to ban all guns. That is why, when applying real heightened
scrutiny, a “substantial relation is necessary but not
sufficient.” Ams. for Prosperity Found. v. Bonta, 141 S. Ct.
2373, 2384 (2021) (applying exacting scrutiny in a First
Amendment case).
The truth is that what our court calls “intermediate
scrutiny” when reviewing Second Amendment cases doesn’t
even rise to the level of real rational basis review. That’s a
bold claim, I know. But think about it: if your state banned
all cars, forcing all its citizens to use bicycles because many
people are killed by drunk drivers (not to mention
automobile accidents generally), would you think that was
rational? No. What if California just banned all large
vehicles (trucks, vans, etc.) because on rare occasions some
crazed individual intentionally drives his car into a group of
people, and large cars presumably do more damage? I doubt
it. But that is what California has done here—banned a type
of firearm magazine that has obvious self-defense benefits
when used against a group of assailants, based on a
purported harm that, while high-profile, is statistically
152 DUNCAN V. BONTA
extraordinarily improbable. 5 Much more improbable than
harm from misuse of a car. And while cars are not expressly
protected by the Constitution, “arms” are. 6
The reason I think most of my colleagues on this court
would genuinely struggle more with a car ban than they do
with a gun ban is that they naturally see the value in cars.
They drive cars. So they are willing to accept some
inevitable amount of misuse of cars by others. And my
colleagues similarly have no problem protecting speech—
even worthless, obnoxious, and hateful speech 7—because
they like and value speech generally. After all, they made
5
By emphasizing their statistical rarity, I do not belittle the tragedy
experienced by those affected by a mass shooting (any more than
observing that airline crashes are thankfully rare detracts from the
heartbreak of those involved when they happen).
6
Characterizing my car ban analogies as “inapt,” the majority says
that California’s magazine ban is more akin to “speed limits.” But in
attempting to trade my analogies for a more favorable one, the majority
misses the obvious point: that in every context except our distorted
Second Amendment jurisprudence, everyone agrees that when you
evaluate whether a response to avoid some harm is “rational”—much
less a “reasonable fit”—you take into account both the gravity of the
possible harm and the risk of it occurring. The majority here completely
ignores the latter. Perhaps if I use the majority’s own analogy it might
click: If California chose to impose a state-wide 10 mph speed limit to
prevent the very real harm of over 3,700 motor-vehicle deaths each year
experienced from driving over 10 mph, no one would think such a
response is rational—precisely because, even though the many deaths
from such crashes are terrible, they are a comparatively rare occurrence
(although much more common than deaths caused by mass shootings).
7
See, e.g., Sable Commc’ns of Cal., Inc. v. F.C.C., 492 U.S. 115,
126 (1989) (“indecent . . . [expression] is protected by the First
Amendment”); Nat’l Socialist Party of Am. v. Vill. of Skokie, 432 U.S.
43, 44 (1977) (per curiam) (protecting the First Amendment rights of
Nazis to protest).
DUNCAN V. BONTA 153
their careers from exercising their own speech rights. On the
other hand, as clearly demonstrated by this case, most of my
colleagues see “limited lawful” value in most things firearm-
related.
But the protections our founders enshrined in the Bill of
Rights were put there precisely because they worried our
future leaders might not sufficiently value them. That is why
our court’s “intermediate scrutiny” balancing approach to
the Second Amendment is no more appropriate here than it
would be for any other fundamental right. As the Supreme
Court explained in rejecting Justice Breyer’s “‘interest-
balancing’ approach,” noting that “no other enumerated
constitutional right[‘s] . . . core protection” was subject to
such a test,
[t]he 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 634–35.
The majority repeatedly denies that it is engaging in the
type of “judge-empowering interest-balancing inquiry”
rejected in Heller, insisting instead that it is merely applying
our “traditional test” in this case. It’s doing both. Our
traditional two-part test is a “judge-empowering interest-
balancing inquiry.” It’s a convoluted, multi-step balancing
test that weighs different considerations at different times so
as to give judges maximum discretion and mask when they
treat the same considerations differently at the various stages
154 DUNCAN V. BONTA
of the balancing (like here). When one steps back and
evaluates our current Second Amendment test, it is clear the
court is engaging in an interest-balancing test—it’s just that
the balancing is done in two or more steps instead of all
together.
What we call our two-step test really has three parts,
since the second “step” is divided into two parts. A play in
two acts, so to speak. Step II, Part I: the court determines
the proper level of scrutiny, which includes weighing “the
severity of the law’s burden on the right.” Step II, Part II:
the court then applies the “appropriate” level of scrutiny
(which, in our court’s case, is always intermediate), where
the court weighs the government’s interest in the regulation
(including “reasonable fit”). An ever-adapting script, it is
always these two competing interests that drive the court’s
analysis. Ultimately, the court is comparing the plaintiff’s
burden against the state’s interest. If the burden on the
plaintiff’s Second Amendment rights is great (i.e., near the
mythical “core” of the Second Amendment), then the
government is (theoretically) required to make a stronger
showing of its interest and fit. And vice-versa. Like a good
Marvel movie, there’s always lots of drama, but the result is
fore-ordained.
This particularly pernicious balancing test is a shell
game. The balancing is done piecemeal so that the court can
use differently weighted scales at each step and obfuscate the
stark disparity between how it weighs the impact from the
claimed violation of an express constitutional right, versus
how it weighs the government’s justification and the
regulation’s fit. When weighing the impact on the elusive
“core” of the Second Amendment, the court whips out a
scale specially calibrated to always read “minimal burden”
(unless the government officials were dumb enough to do
DUNCAN V. BONTA 155
exactly the same thing Washington, D.C. and Chicago did in
Heller and McDonald: entirely ban all handguns). But when
it comes time to weigh the government’s interest and the
reasonableness of the regulation’s fit under “intermediate
scrutiny,” the court puts away the first scale and pulls out a
different scale calibrated to always read “close enough,”
even where, as here, the fit between the ban and the ultrarare
harm asserted is not even rational.
The majority acknowledges that, applying our super-
pliable test, “we have not struck down any state or federal
law under the Second Amendment.” But it insists “we have
carefully examined each challenge on its own merit.” If
every case without fail leads to the same anti-firearms
conclusion, however, then at some point it begs credulity to
deny that something else is driving the outcomes.
Judge Hurwitz has penned a short concurrence
respectfully characterizing as inappropriate and hyperbolic
my observations regarding how my colleague’s personal
views influence our court’s Second Amendment cases. I
agree that it is a troubling charge to posit personal views as
a driving force behind judicial decision-making, and not one
I make lightly. But whatever else it may be, my claim is
hardly hyperbolic. Here are the facts: We are a monstrosity
of a court exercising jurisdiction over 20% of the U.S.
population and almost one-fifth of the states—including
states pushing the most aggressive gun-control restrictions
in the nation. By my count, we have had at least 50 Second
Amendment challenges since Heller—significantly more
than any other circuit—all of which we have ultimately
denied. In those few instances where a panel of our court
has granted Second Amendment relief, we have without fail
taken the case en banc to reverse that ruling. This is true
regardless of the diverse regulations that have come before
156 DUNCAN V. BONTA
us—from storage restrictions to waiting periods to
ammunition restrictions to conceal carry bans to open carry
bans to magazine capacity prohibitions—the common thread
is our court’s ready willingness to bless any restriction
related to guns. Respectfully, Judge Hurwitz’s claim that
our judges’ personal views about the Second Amendment
and guns have not affected our jurisprudence is simply not
plausible. Res ipsa loquitur.
Judge Hurwitz’s own concurrence demonstrates this
reality. In defending the validity of California’s interest, he
doesn’t dispute that mass shootings are “infrequent,” but
expressly dismisses that reality as irrelevant. Why?
Because, in his view, “hardly anyone is untouched by the[]
devastation.” His proof? A very personal anecdote about
losing our beloved colleague to a mass shooting. No one
disputes the depth of that tragedy, which is exactly why such
uncommon occurrences nonetheless deeply influence my
colleagues’ views about gun control and the Second
Amendment. But the fact that members of our court have
been personally affected by a mass shooting is not a
legitimate reason to ignore the undisputed statistical rarity
when weighing the government’s interest in its ban—it falls
in the same category as choosing to drive instead of flying
because you know someone who was tragically killed in a
rare commercial airline accident. As a personal
psychological phenomenon, such exaggeration of risks is
completely understandable. As a legal matter, it should have
no place in applying fundamental constitutional rights,
including the Second Amendment. And just as irrelevant is
Judge Hurwitz’s reliance on yet more personal anecdotes—
that “[o]ther members of the Court have lost family and
friends to gun violence”—that are entirely unrelated to mass
shootings. Defending California’s regulation by sharing
such deeply personal examples only demonstrates just how
DUNCAN V. BONTA 157
hard it is for any judge, including my esteemed and talented
colleagues, to evaluate these cases in the objective and
detached manner required when the legal test itself offers no
meaningful guiderails.
It is important to emphasize that I point to my valued
colleagues’ personal views not to engage in some unrelated
ad hominem attack, but rather because the impact of those
views is directly relevant to the purpose of this dissent.
When judges are effectively told to balance the necessity for
some particular gun-control regulation against that
regulation’s effect on the “core” of the Second Amendment,
there isn’t much for the judges to work with other than their
own personal views about guns and the Second Amendment.
Whether judges intend to bring in their personal views or
not, those views inescapably control our holdings when
applying a test as malleable as our Second Amendment
intermediate scrutiny standard. Without rules that actually
bind judges, personal intuition inescapably fills the void.
The result of individual judges applying a formless test is a
world where “equality of treatment is difficult to
demonstrate and, in a multi-tiered judicial system,
impossible to achieve . . . .” Antonin Scalia, The Rule of
Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 1182
(1989).
Instead of striving to avoid this inequality of treatment,
the majority highlights the inequality among the circuits as a
defense of our current two-step approach. They do this by
citing one case to show “our sister circuits, applying the
same two-step inquiry that we apply today, have not
hesitated to strike down provisions that go too far.” This
again bolsters my point. Because the prevailing two-step
balancing test is so malleable and discretionary, one would
expect that different judges with different conceptions of
158 DUNCAN V. BONTA
guns and gun rights would weigh the different considerations
differently and come to different conclusions. 8
Until the Supreme Court forces our court to do
something different than balance our view of the utility of
some firearm product or usage against the government’s
claimed harm from its misuse, the Second Amendment will
remain essentially an ink blot in this circuit.
II. The Majority’s Second Amendment Scales Are
Rigged.
Not content to just tilt the rules of the game heavily in
the government’s favor via our pathetically anemic
“intermediate scrutiny,” the majority here also stacks the
evidentiary deck. The majority balances the average rarity
of the use of ammunition in lawful self-defense situations as
weighing heavily against its protection under the Second
Amendment. Meanwhile, it studiously ignores the rarity of
the harm (mass shootings) that California puts forward to
support its ban. As explained, such balancing should have
no place in a case like this—the founders already settled the
weighty interest citizens have in lawfully bearing
commonplace self-defense arms like those California has
banned here. But the stark disparity between how the
8
The majority defends our undefeated, 50–0 record against the
Second Amendment by pointing out that the states in our circuit simply
have “more restrained” gun-control laws than the states in other circuits.
While the majority is apparently serious, this claim can’t be taken
seriously given that our circuit’s jurisdiction includes states like
California and Hawaii—which have enacted many of the most
aggressive gun-control laws in the nation. The majority’s failure to
comprehend that reality underscores my point that something other than
objective and impartial application of the two-part test is driving the
outcomes in our Second Amendment cases.
DUNCAN V. BONTA 159
majority treats the very same attribute depending on whether
it supports or undercuts the majority’s desired outcome
illustrates well that, even if we thought balancing might have
a proper role in evaluating our Second Amendment rights,
we can’t expect judges who fundamentally disagree with the
Second Amendment to fairly read the scales.
The reality is that essentially everything the Second
Amendment is about is rare, for which we all should be very
grateful. Government tyranny of the sort to be met by force
of arms has been, in the short history of our country,
fortunately rare. The actual need for any particular person
to use her firearm to defend herself is, again, extremely
rare—most of us will thankfully never need to use a gun to
defend ourselves during our entire life. 9 And in those rare
instances where a firearm is used in self-defense, the amount
of ammunition needed is generally very little—oftentimes
none at all. It is certainly true that most of us will use exactly
zero rounds of ammunition to defend ourselves—ever. So if
the Second Amendment protects anything, it is our right to
be prepared for dangers that, thankfully, very rarely
materialize.
Given that, the majority’s focus on the fact that only
2.2 bullets are used on average in a self-defense shooting,
and concluding that a law banning more than that “interferes
only minimally with the core right of self-defense,” is
9
Observing the rarity does not diminish the fact that thousands of
citizens use their firearms for lawful self-defense each year. It simply
means that as a percentage of the population generally, or even lawful
gun owners, that percentage is tiny.
160 DUNCAN V. BONTA
grossly misplaced. 10 An average of 0.0 rounds are fired on
average in preventing government tyranny. And the average
person will fire an average of 0.0 rounds in self-defense in
their entire lifetime. If the rarity alone of exercising one’s
Second Amendment rights cuts so dispositively against their
protection, then the Second Amendment protects nothing.
Yet when it comes to the uncommonness of mass
shootings—the reason California says it needs its magazine
ban—the majority counts that as nothing. You would think
that if the government seeks to interfere with a fundamental
right, the infrequency of the claimed harm would be a very
important consideration. For example, if the government
sought to ban some type of communication because it very
infrequently resulted in harm, we would never countenance
that. On the other hand, where some type of communication
frequently results in harm, it might survive heightened
scrutiny (e.g., fighting words).
Here, California relies on a statistically very rare harm as
justifying its ban, but a harm that, while infrequent, grabs
headlines and is emotionally compelling. The emotional
impact of these tragedies does all the work for the
government and our court. But if a court was going to
balance a fundamental right against a claimed harm, that is
precisely where judges must cut through the emotion and do
10
California currently allows more than 2.2 rounds in a magazine,
and does not prohibit carrying multiple magazines. But don’t be fooled.
Under the majority’s Version 2.2 of the Second Amendment, there is no
reason a state couldn’t limit its citizens to carrying a (generous) 3 rounds
total for self-defense.
DUNCAN V. BONTA 161
their job of holding the government to its (supposedly
heightened) burden. The majority here doesn’t even try. 11
The majority’s uneven treatment of rarity is not the only
example where its anti-Second Amendment bias shows
through in how it reads the record. The majority questions
whether law-abiding citizens even want higher capacity
magazines for self-defense, speculating “whether circulation
percentages of a part that comes standard with many firearm
purchases meaningfully reflect an affirmative choice by
consumers.” But such musings only reveal a clear lack of
knowledge about guns—or even basic economics,
apparently. In free countries like this one, unless a market is
interfered with by regulations like the one at issue in this
case, it generally provides what consumers want. The
market for self-defense firearms is no exception. Until only
a few years ago, if you wanted a “micro-compact” firearm
for self-defense (of the type that serves little or no military
usage), you were generally limited to a six to eight-round
magazine capacity. For example, the KelTec P3AT came
with a six-round magazine, as did the Ruger LCP, Glock 43,
Kimber Solo, and Walther PPK (of James Bond fame). The
Kahr PM9 and Sig Sauer P238 offered six or seven-round
11
The majority implies that by emphasizing the rarity of mass
shootings, I omit the other relevant part of the analysis: “the incredible
harm caused by mass shootings.” I’m not ignoring the “incredible
harm”; I’m simply saying that, just as we do with all serious harms, we
must evaluate the seriousness of that harm along with the probability of
it occurring. For example, no one doubts that commercial airline
crashes, when they occur, result in “incredible harm.” And yet no
government has seriously considered banning commercial flights. Why?
Because airplane crashes are extremely rare—just like mass shootings.
The majority’s response—doubling down on its emphasis of the harm
while continuing to intentionally avoid its rarity—demonstrates that it is
the majority, not me, that “omits . . . [a] critical part of the analysis.”
162 DUNCAN V. BONTA
magazines, while the Smith & Wesson M&P Shield came
with seven or eight rounds. Not too long ago, it was
basically impossible to find a lightweight, micro-compact
firearm even capable of holding 10 rounds in its magazine.
Then, in 2019, Sig Sauer released the P365, which took
the self-defense market by storm because suddenly law-
abiding citizens could have the same size micro-compact
firearm, but now carrying 12 or 15 rounds in its magazine.
Other companies quickly followed suit, with Springfield
Armory releasing the Hellcat (11 to 13-round magazines),
Ruger releasing the Max-9 (12+1), Smith & Wesson
releasing the M&P Shield Plus (13+1), and Kimber releasing
the R7 Mako (13+1). Aftermarket magazine manufacturers
like Shield Arms released flush-fitting magazines holding
15 rounds for diminutive guns like the Glock 43x and 48.
All this has happened in just the past few years, in
segment of the firearms market that has essentially no
“military” application. It has happened because many law-
abiding citizens want higher capacity magazines for one
purpose: self-defense. The majority’s odd speculation that
maybe the self-defense market doesn’t want higher capacity
magazines is as uninformed as wondering why cruise-
control comes standard on their cars since nobody in their
urban neighborhood wants it.
While the majority is happy to engage in ill-informed
speculation when it comes to limiting gun rights, it
demonstrates a distinct lack of imagination and basic logic
when it comes to understanding why so many citizens desire
a magazine holding over 10 rounds. First, the majority posits
a classic false dilemma (a.k.a. an either-or fallacy) by
waxing on at length about how larger magazines “provide
significant benefits in a military setting,” not self-defense.
Of course, almost every attribute of a weapon that makes it
DUNCAN V. BONTA 163
more effective for military purposes also makes it more
effective for self-defense: more accurate, faster firing, the
ability to engage multiple targets quickly—these are all
characteristics of a weapon that make it better for both
military and self-defense purposes. The majority’s fixation
on the effectiveness of higher-capacity magazines in the
military context does not somehow demonstrate that the
magazines are not also useful for self-defense.
The majority relatedly adopts California’s argument that
magazines over 10 rounds are “dangerous” when misused.
Again, essentially every attribute of a weapon that makes it
more effective for self-defense makes it more dangerous
when misused. Good sights on a handgun make it more
effective for lawful self-defense—but also make it more
dangerous when misused. A pistol that doesn’t malfunction
is really nice to have in a self-defense situation—but is also
more dangerous when misused. Modern hollow-point
ammunition, with its dramatically increased stopping
potential, has seriously improved the performance of
handguns in a self-defense situation—but of course also
make the handgun more dangerous when misused. This type
of logic, applied the way the majority does, would justify
banning all semi-automatics since they are more dangerous
than revolvers, all revolvers since they are more dangerous
than derringers, all derringers since they are more dangerous
than knives . . . until we are left with toothpicks. That is why
the Supreme Court in Heller only talked about weapons that
are both “dangerous and unusual” being outside the purview
of the Second Amendment. 554 U.S. at 627 (emphasis
added) (citation omitted). The mere fact that some attribute
(like a larger capacity magazine) might make a weapon more
“dangerous” when misused cannot be a basis to avoid the
Second Amendment—if so, the Second Amendment
protects only nerf guns.
164 DUNCAN V. BONTA
The majority also latches onto California’s argument that
“mass shootings often involve large-capacity magazines.”
That is hardly surprising, given that, as the majority itself
acknowledges, “[m]ost pistols are manufactured with
magazines holding ten to seventeen rounds, and many
popular rifles are manufactured with magazines holding
twenty or thirty rounds” (citation and internal quotation
marks omitted). So, in other words, mass shootings involve
the most common types of firearms. This is the sort of
evidence that suffices to meet our circuit’s “heightened”
review under the Second Amendment?
The majority also relies on the argument that limiting
magazine capacity provides “precious down-time” during
reloading, giving “victims and law enforcement officers”
time to “fight back.” But here again, that same “down-time”
applies equally to a mother seeking to protect herself and her
children from a gang of criminals breaking into her home, or
a law-abiding citizen caught alone by one of the lawless
criminal mobs that recently have been terrorizing cities in
our circuit. The majority focuses only on ways higher
capacity magazines might cause more harm in the very rare
mass shooting, while dismissing the life-threatening impact
of being forced to reload in a self-defense situation as a mere
“inconvenience,” and characterizing as mere “speculat[ion]
. . . situations in which a person might want to use a large-
capacity magazine for self-defense.”
Ultimately, it is not altogether surprising that federal
judges, who have armed security protecting their workplace,
home security systems supplied at taxpayer expense, and the
ability to call an armed marshal to their upper-middleclass
home whenever they feel the whiff of a threat, would have
trouble relating to why the average person might want a
magazine with over ten rounds to defend herself. But this
DUNCAN V. BONTA 165
simply reinforces why those same judges shouldn’t be
expected to fairly balance any Second Amendment test
asking whether ordinary law-abiding citizens really need
some firearm product or usage.
III. The Supreme Court Needs to Constrain Lower
Courts’ Discretion.
We need tests that require real heightened scrutiny and
will pull our courts out of the habit of inverted deference to
burdens on Second Amendment rights. In that vein, I
propose several less-discretionary tests the Supreme Court
should impose to cabin my errant brethren.
A. Common Use
My first proposal is for the Supreme Court to put real
teeth into a consideration that has been around since at least
as far back as 1939, when the Supreme Court noted that the
Second Amendment’s reference to the Militia signified that
the “arms” referenced by that provision are those “of the
kind in common use at the time.” United States v. Miller,
307 U.S. 174, 179 (1939). Again in Heller, the Court
reiterated that “the sorts of weapons protected” by the
Second Amendment are “those ‘in common use at the
time.’” 554 U.S. at 627 (quoting Miller, 307 U.S. at 179).
Reinforcing this precedent, the Supreme Court should make
clear that any regulation that prohibits a firearm product or
usage that is “in common use” nationally must pass strict
scrutiny. Not only would that curtail lower courts’ abuse of
their discretion in applying the Second Amendment, but it
would also help address a perennial line-drawing difficulty
inherent in the right to keep and bear arms.
One of the ongoing problems with defining the contours
of any constitutional right is determining how it applies to
166 DUNCAN V. BONTA
technologies that did not exist when the constitutional
provision was enacted. For example, how does the First
Amendment apply to social media or blog posts? But that
problem is particularly vexing in applying the Second
Amendment because “arms” by their very nature change
over time as technology advances. As the Court in Heller
correctly observed, the Second Amendment does not protect
“only those arms in existence in the 18th century . . . . We
do not interpret constitutional rights that way.” Id. at 582.
But while we know that “the Second Amendment extends,
prima facie, to all instruments that constitute bearable arms,
even those that were not in existence at the time of the
founding,” id. (emphasis added), in an age where weapons
run the gamut from fighter jets to tanks to fully-automatic
machine guns to AR-15s to handguns to pocketknives,
which weapons are protected by the Second Amendment and
which are not? As this case and others like it demonstrate,
we cannot rely on insular federal judges to weigh which
weapons are appropriate for self-defense—they honestly
don’t have a clue, and their intuitions about firearms are not
good. And we can’t rely on governments to decide—that’s
who the Second Amendment was intended to protect against.
But as Heller discusses, we can look to what weapons law-
abiding citizens have chosen to defend themselves—that is,
what weapons are currently “in common use . . . for lawful
purposes.” Id. at 624 (internal quotation marks omitted).
Here, law-abiding citizens across the nation have
purchased literally millions upon millions of the type of
magazines that California has banned. Americans currently
possess between seventy to one hundred million of those
DUNCAN V. BONTA 167
magazines for self-defense. 12 The majority here concludes
that banning them is a “small burden” on the Second
Amendment because they “provide at most a minimal
benefit for civilian, lawful purposes.” Millions of our fellow
Americans disagree with my seven colleagues in the
majority, evincing by their purchase and “keep[ing]” of
those magazines that they consider them necessary for self-
defense. That should count for something—actually, it
should count for a lot, especially for a constitutional
guarantee that ostensibly protects “the right of the people to
keep and bear arms.” As the Heller Court explained in
rejecting the argument that handguns could be banned
because rifles weren’t, it was “enough to note . . . that the
American people have considered the handgun to be the
quintessential self-defense weapon.” Id. at 629. That same
rationale should apply for any firearm product or usage that
law-abiding citizens across the nation have chosen for self-
defense.
B. State Law Survey
A government should also have to meet strict scrutiny if
it bans a firearm product or usage that is allowed throughout
most of our nation. If most of the states in the Union allow
a particular item to be used in the course of exercising a
Second Amendment right, then the government’s
12
67% of gun owners say self-defense is a major reason why they
own their firearm. See Kim Parker, et al., The demographics of gun
ownership in the U.S., PEW RESEARCH CENTER (June 22, 2017),
https://www.pewresearch.org/social-trends/2017/06/22/the-demographi
cs-of-gun-ownership/; see also Christopher S. Koper et al., An Updated
Assessment of the Federal Assault Weapons Ban: Impacts on Gun
Markets and Gun Violence, 1994–2002, (June 2004),
https://www.ojp.gov/pdffiles1/nij/grants/204431.pdf.
168 DUNCAN V. BONTA
justification for forbidding or restricting that item or usage
should be subjected to strict scrutiny.
Our court has often cited the practice of other states when
it suits its purpose in analyzing constitutional rights. See,
e.g., Young, 992 F.3d at 805 (analyzing the Second
Amendment, the court observed “[i]n contrast to these states,
other states—also from the South—upheld good-cause
restrictions on the open carry of certain dangerous
firearms”); Family PAC v. McKenna, 685 F.3d 800, 811 n.12
(9th Cir. 2012) (First Amendment); S. Or. Barter Fair v.
Jackson County, 372 F.3d 1128, 1131 (9th Cir. 2004) (First
Amendment); Cammack v. Waihee, 932 F.2d 765, 766–67
(9th Cir. 1991) (Establishment Clause). Indeed, the majority
does so here, strangely observing that “California is not
alone” because a few other states and local governments also
ban some magazines (even though a super-majority of states
don’t).
The majority’s instinct that it makes sense to look at
other states is right; its execution is just wrong. The fact that
a handful of states similarly regulate should not help justify
infringement of a fundamental right. But the fact that most
other states—here, 41 states and the federal government—
don’t similarly regulate should cause a court to suspect that
maybe the government’s supposed justification for its ban is
lacking.
Like looking at “common use,” considering other states’
regulation would have at least one serious incidental side-
benefit: it would reduce the troubling balkanization that
currently afflicts a fundamental right supposedly protected
by the Constitution. Right now, a lawful gun-owner’s ability
to lawfully “keep and bear arms” is subject to a widely
varying patchwork quilt of state and local restrictions and
bans that would be an embarrassment for any other
DUNCAN V. BONTA 169
constitutional right. Requiring governments to satisfy real
heightened scrutiny before they step too far out of line with
what is working in most other jurisdictions would help deter
states like California from using their “laboratory of
democracy” to conduct ongoing experiments on how to
subject a fundamental right to death by a thousand cuts. See
Teixeira v. Cty. of Alameda, 873 F.3d 670, 694 (9th Cir.
2017) (en banc) (Tallman, J., concurring).
* * *
Our court is fond of saying that Second Amendment
rights are not absolute. See, e.g., Young, 992 F.3d at 793;
Silveira v. Lockyer, 312 F.3d 1052, 1063 (9th Cir. 2002)
abrogated on other grounds by Heller, 554 U.S. 570; United
States v. Vongxay, 594 F.3d 1111, 1117 (9th Cir. 2010). I
don’t disagree with that truism—I just disagree with our
court’s reliance on it to uphold every single firearm
regulation, ever. Requiring that any regulation that prohibits
a firearm product or usage “in common use” must pass strict
scrutiny would not mean that a government would be
helpless to address substantial genuine threats from weapons
or uses protected by the Second Amendment. It would just
mean that those governments would actually need to make a
real “heightened” showing of harm, and a response that is
narrowly tailored to that harm. That shouldn’t be asking too
much for a constitutionally protected right.
If ever there was a case study illustrating Madison’s
concern about “evil lurking under plausible disguises, and
growing up from small beginnings,” it is our circuit’s Second
Amendment jurisprudence. In the thirteen years since the
Supreme Court ruled in Heller that the Second Amendment
“guarantee[s] the individual right to possess and carry
weapons in case of confrontation,” 554 U.S. at 592, our court
has trimmed back that right at every opportunity—to the
170 DUNCAN V. BONTA
point that now, in the nine Western states covered by our
court, the right to “keep and bear arms” means, at most, you
might get to possess one janky handgun and 2.2 rounds of
ammunition, and only in your home under lock and key.
That’s it.
That’s ridiculous, and so I must respectfully dissent.