Virginia Duncan v. Xavier Becerra ( 2020 )

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.
XAVIER BECERRA, 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 April 2, 2020
Pasadena, California
Filed August 14, 2020
2 DUNCAN V. BECERRA
Before: Consuelo M. Callahan and Kenneth K. Lee,
Circuit Judges, and Barbara M. G. Lynn, * District Judge.
Opinion by Judge Lee;
Dissent by Judge Lynn
SUMMARY **
Second Amendment
The panel affirmed the district court’s summary
judgment in favor of plaintiffs challenging California
Government Code § 31310, which bans possession of large-
capacity magazines (“LCMs”) that hold more than ten
rounds of ammunition; and held that the ban violated the
Second Amendment.
The Ninth Circuit employs a two-prong inquiry to
determine whether firearm regulations violate the Second
Amendment: (1) whether the law burdens conduct protected
by the Second Amendment; and (2) if so, what level of
scrutiny to apply to the regulation. United states v. Chovan,
735 F.3d 1127, 1136 (9th Cir. 2013)
The panel held that under the first prong of the test, Cal.
Penal Code § 32310 burdened protected conduct. First, the
panel held that firearm magazines are protected arms under
*
The Honorable Barbara M. G. Lynn, United States Chief District
Judge for the Northern District of Texas, sitting by designation.
**
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. BECERRA 3
the Second Amendment. Second, the panel held that LCMs
are commonly owned and typically used for lawful purposes,
and are not “unusual arms” that would fall outside the scope
of the Second Amendment. Third, the panel held that LCM
prohibitions are not longstanding regulations and do not
enjoy a presumption of lawfulness. Fourth, the panel held
that there was no persuasive historical evidence in the record
showing LCM possession fell outside the ambit of Second
Amendment protection.
Proceeding to prong two of the inquiry, the panel held
that strict scrutiny was the appropriate standard to apply.
First, the panel held that Cal. Penal Code § 32310 struck at
the core right of law-abiding citizens to self-defend by
banning LCM possession within the home. Second, the
panel held that Section 32310’s near-categorical ban of
LCMs substantially burdened core Second Amendment
rights. Third, the panel held that decisions in other circuits
were distinguishable. Fourth, the panel held that this
circuit’s decision in Fyock v. City of Sunnyvale, 779 F.3d
991 (9th Cir. 2015), did not obligate the panel to apply
intermediate scrutiny.
The panel held that Cal. Penal Code § 32310 did not
survive strict scrutiny review. First, the panel held that the
state interests advanced here were compelling: preventing
and mitigating gun violence. Second, the panel held that
Section 32310 was not narrowly tailored to achieve the
compelling state interests it purported to serve because the
state’s chosen method – a statewide blanket ban on
possession everywhere and for nearly everyone – was not the
least restrictive means of achieving the compelling interests.
The panel held that even if intermediate scrutiny were to
apply, Cal. Penal Code § 32310 would still fail. The panel
4 DUNCAN V. BECERRA
held that while the interests expressed by the state qualified
as “important,” the means chosen to advance those interests
were not substantially related to their service.
Chief District Judge Lynn dissented, and would reverse
the district court’s grant of summary judgment. Judge Lynn
wrote that the majority opinion conflicted with this Circuit’s
precedent in Fyock, and with decisions in all the six sister
Circuits that addressed the Second Amendment issue
presented here. Judge Lynn would hold that intermediate
scrutiny applies, and Cal. Penal Code § 32310 satisfies that
standard.
DUNCAN V. BECERRA 5
COUNSEL
John D. Echeverria (argued), Deputy Attorney General;
Mark R. Beckington, Supervising Deputy Attorney General;
Thomas S. Patterson, Senior Assistant Attorney General;
Xavier Becerra, Attorney General; Office of the Attorney
General, California, Los Angeles, 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, Sean A. Brady, and Anna
M. Barvir, Michel & Associates P.C., Long Beach,
California; for Plaintiffs-Appellees.
Scott D. Danzis, Thomas C. Villalon, Rafael Reyneri, and
Nora Conneely, Covington & Burling LLP, Washington,
D.C.; Jonathan E. Lowy and T. Tanya Schardt, Brady,
Washington, D.C.; for Amicus Curiae Brady.
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, Deputy Solicitor
General; Sonya L. Lebsack, Assistant Attorney General;
Office of the Solicitor General, Washington, D.C.; William
Tong, Attorney General, Hartford, Connecticut; Clare E.
Connors, Attorney General, Honolulu, Hawaii; Brian E.
Frosh, Attorney General, Baltimore, Maryland; Burbir S.
Grewal, Attorney General, Trenton, New Jersey; Letitia
6 DUNCAN V. BECERRA
James, Attorney General, New York, New York; Keith
Ellison, Attorney General, St. Paul, Minnesota; Kathleen
Jennings, Attorney General, Wilmington, Delaware; Kwame
Raoul, Attorney General, Chicago, Illinois; Maura Healey,
Attorney General, Boston, Massachusetts; Hector Balderas,
Attorney General, Santa Fe, New Mexico; Dana Nessel,
Attorney General, Lansing, Michigan; Ellen F. Rosenblum,
Attorney General, Salem, Oregon; Josh Shapiro, Attorney
General, Harrisburg, Pennsylvania; Thomas J. Donovan Jr.,
Montpelier, Vermont; Robert W. Ferguson, Attorney
General, Olympia, Washington; Peter F. Neronha, Attorney
General, Providence, Rhode Island; Mark R. Herring,
Attorney General, Richmond, Virginia; for Amici Curiae
District of Columbia, Connecticut, Delaware, Hawaii,
Illinois, Maryland, Massachusetts, New Jersey, New
Mexico, New York, Michigan, Minnesota, Oregon,
Pennsylvania, Rhode Island, Vermont, Virginia, and
Washington.
Dennis J. Herrera, City Attorney; Aileen McGrath, Co-Chief
of Appellate Litigation; City Attorney’s Office, San
Francisco, California; for Amicus Curiae City and County of
San Francisco.
Michael N. Feuer, City Attorney; James P. Clark, Kathleen
Kenealy, Blithe Smith Bock, and Danielle L. Goldstein,
Office of the City Attorney, Los Angeles, California; for
Amicus Curiae City of Los Angeles.
Antonio J. Perez-Marques and Antonio M. Haynes, Davis
Polk & Wardwell LLP, New York, New York; Eric
Tirschwell, Mark Anthony Frassetto, and William J. Taylor
Jr., Everytown Law, New York, New York; for Amicus
Curaie Everytown for Gun Safety.
DUNCAN V. BECERRA 7
Scott A. Edelman, Gibson Dunn & Crutcher LLP, Los
Angeles, California; Vivek R. Gopalan and Matthew C.
Reagan, 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; for Amicus Curiae Giffords Law
Center to Prevent Gun Violence.
James E. Hough, Jamie A. Levitt, and Cesar A. Francia,
Morrison & Foerster LLP, New York, New York, for Amici
Curiae Pride Fund to End Gun Violence, Equality California,
and Gays Against Guns.
Nezida S. Davis, Bakari Law LLC, Decatur, Georgia;
Stephen P. Halbrook, Fairfax, Virginia; for Amici Curiae
National African American Gun Association Inc. and Pink
Pistols.
John Parker Sweeney, James W. Porter III, Marc A.
Nardone, and Candice L. Rucker, Bradley Arant Boult
Cummings LLP, Washington, D.C., for Amicus Curiae
National Rifle Association of America Inc.
Robert J. Olson, Jeremiah L. Morgan, 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, 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, Conservative Legal Defense and Education Fund,
Policy Analysis Center, The Heller Foundation, and
Restoring Liberty Action Committee.
8 DUNCAN V. BECERRA
Lawrence G. Keane and Benjamin F. Erwin, National
Shooting Sports Foundation Inc., Newtown, Connecticut;
Craig A. Livingston and Crystal L. Van Der Putten,
Livingston Law Firm P.C., Walnut Creek, California; for
Amicus Curiae National Shooting Sports Foundation Inc.
Dan M. Peterson, Dan M. Peterson PLLC, Fairfax, Virginia,
for Amici Curiae Law Enforcement Groups and State and
Local Firearms Rights Groups.
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 E. J. Kilmer
Jr. APC, San Jose, California, for Amicus Curiae Madison
Society Inc.
John Cutonilli, Garrett Park, Maryland, as Amicus Curiae.
DUNCAN V. BECERRA 9
OPINION
LEE, Circuit Judge:
In the wake of heart-wrenching and highly publicized
mass shootings, the state of California barred its citizens
from owning so-called “large capacity magazines” (LCMs)
that hold more than ten rounds of ammunition. But even
well-intentioned laws must pass constitutional muster.
California’s near-categorical ban of LCMs strikes at the core
of the Second Amendment — the right to armed self-
defense. Armed self-defense is a fundamental right rooted in
tradition and the text of the Second Amendment. Indeed,
from pre-colonial times to today’s post-modern era, the right
to defend hearth and home has remained paramount.
California’s law imposes a substantial burden on this
right to self-defense. The ban makes it criminal for
Californians to own magazines that come standard in
Glocks, Berettas, and other handguns that are staples of self-
defense. Its scope is so sweeping that half of all magazines
in America are now unlawful to own in California. Even
law-abiding citizens, regardless of their training and track
record, must alter or turn over to the state any LCMs that
they may have legally owned for years — or face up to a year
in jail.
The state of California has latitude in enacting laws to
curb the scourge of gun violence, and has done so by
imposing waiting periods and many other limitations. But
the Second Amendment limits the state’s ability to second-
guess a citizen’s choice of arms if it imposes a substantial
burden on her right to self-defense. Many Californians may
find solace in the security of a handgun equipped with an
LCM: those who live in rural areas where the local sheriff
may be miles away, law-abiding citizens trapped in high-
10 DUNCAN V. BECERRA
crime areas, communities that distrust or depend less on law
enforcement, and many more who rely on their firearms to
protect themselves and their families. California’s almost-
blanket ban on LCMs goes too far in substantially burdening
the people’s right to self-defense. We affirm the district
court’s summary judgment, and hold that California Penal
Code section 32310’s ban on LCMs runs afoul of the Second
Amendment.
BACKGROUND
A. California Penal Code section 32310 prohibits the
people from owning LCMs.
In 2016, California amended California Penal Code
section 32310 to enact a wholesale ban on the possession of
LCMs 1 by almost everyone, everywhere, in the state of
California. See Cal. Penal Code § 32310(c) (2016)
(criminalizing “any person in this state who possesses any
large-capacity magazine, regardless of the date the magazine
was acquired”).
But section 32310 has not always been so broad. As
originally enacted in 2000, it prohibited the manufacture,
importation, and sale of LCMs. See Act of July 19, 1999,
ch. 129, 1999 Cal Stat. §§ 3, 3.5 (codified as amended at Cal.
Penal Code § 12020(a)(2) (2000)) (superseded by Deadly
Weapons Recodification Act of 2010, ch. 711, 2010 Cal.
Stat. § 6 (codified at Cal. Penal Code § 32310)); see also Cal.
Penal Code § 16740 (defining what constitutes an LCM). In
1
To retain symmetry with the parties’ briefing and the statute under
review, we employ the term “large capacity magazine” (LCM) to denote
any firearm magazine capable of holding more than ten rounds of
ammunition. But we note that this definition is purely a function of the
statutory framework challenged here.
DUNCAN V. BECERRA 11
other words, California at first did not regulate the
possession of LCMs.
Ten years later, California declared unlawfully
possessed LCMs to be a nuisance subject to confiscation and
destruction. See Cal. Penal Code § 18010(b); see also
Deadly Weapons Recodification Act of 2010, ch. 711, 2010
Cal. Stat. § 6 (codified at Cal. Penal Code § 32390). And in
2013, California further extended the law to prohibit the
purchase and receipt of LCMs. See 2013 Cal. Stat. 5299, § 1
(amending Cal. Penal Code § 32310(a)).
It may seem that after the 2013 amendments, California
had completed the circle in regulating LCMs. By then, the
state had long since foreclosed the transfer and sale of
LCMs. As of 2013, it prohibited their purchase and receipt.
But the law still allowed Californians who lawfully bought
LCMs well before section 32310’s enactment to keep them.
So, in 2016, the California legislature passed Senate Bill
1446 that prohibited possession of LCMs outright after
July 1, 2017. See 2016 Cal. Stat. 1549, § 1. A few months
later, California voters approved Proposition 63, which
subsumed S.B. 1446 and strengthened its prohibitions by
providing that possession may constitute a misdemeanor
offense punishable by up to a year’s worth of jail time. See
Cal. Penal Code § 32310(c). The law as amended also
requires citizens who own LCMs to remove the magazines
from the state, sell them to a firearms dealer, or surrender
them to law enforcement for destruction. 2 Under Penal Code
2
The Penal Code provides several exceptions to § 32310, including
those for active or retired law enforcement officers, see Cal. Penal Code
§§ 32400, 32405, 32406, 32455, armored vehicle security forces, see id.§ 32435, manufacture for government use, see id. § 32440, holders of
12 DUNCAN V. BECERRA
section 16740(a), LCM owners may permanently modify
nonconforming magazines to accept ten rounds or fewer,
thus removing those magazines from the definition of what
constitutes an LCM.
B. Large capacity magazines are prevalent in America.
Millions of Americans across the country own LCMs.
One estimate based in part on government data shows that
from 1990 to 2015, civilians possessed about 115 million
LCMs out of a total of 230 million magazines in circulation.
Put another way, half of all magazines in America hold more
than ten rounds. Today, LCMs may be lawfully possessed in
41 states and under federal law.
Notably, LCMs are commonly used in many handguns,
which the Supreme Court has recognized as the
“quintessential self-defense weapon.” District of Columbia
v. Heller, 554 U.S. 570, 629 (2008). For example, several
variants of the Glock pistol — dubbed “America’s gun” due
to its popularity 3 — come standard with a seventeen-round
magazine. Almost all Glock models, except for subcompact
variants designed for concealed carry, come standard with
magazine capacities greater than ten rounds. Another
popular handgun used for self-defense is the Beretta Model
special weapons permits for limited purposes, see id. § 32450, and use
as props in film production, see id. § 32445.
3
See Paul M. Barrett, Glock: The Rise of America’s Gun (2012);
see also Proposals to Reduce Gun Violence: Protecting our
Communities While Respecting the Second Amendment: Hearing Before
the Subcomm. on the Constitution, Civil Rights & Human Rights of the
S. Comm. on the Judiciary, 113th Cong. 13-14 (2013) (statement of
Laurence H. Tribe, Carl M. Loeb University Professor, Harvard Law
School) (discussing the Glock).
DUNCAN V. BECERRA 13
92, which entered the market in 1976 and comes standard
with a sixteen-round magazine. Indeed, many popular
handguns commonly used for self-defense are typically sold
with LCMs. 4
C. Procedural history.
Virginia Duncan and other plaintiffs, who lawfully
acquired LCMs or represent those who do (collectively, the
“Owners”), brought a constitutional challenge to California
Penal Code section 32310. Two days before the possession
ban was to take effect, the district court issued a preliminary
injunction enjoining enforcement of the law. On appeal, this
court affirmed. See Duncan v. Becerra, 742 F. App’x 218,
221–22 (9th Cir. 2018).
While the interlocutory appeal was pending, the Owners
filed a motion for summary judgment. The district court
issued an order granting the Owners’ motion, concluding
that section 32310 violates the Second Amendment and the
Fifth Amendment’s Takings Clause.
On the Second Amendment claim, the court rested its
extensive decision on three independent holdings. First, it
concluded that section 32310 did not satisfy the “simple
Heller test,” which queries whether the firearm or firearm
component is commonly owned by law-abiding citizens for
lawful purposes. Central to the court’s analysis were
separate reports by two expert witnesses, James Curcuruto
and Stephen Helsley. The Curcuruto report concluded that
4
For example, Smith & Wesson (S&W) M&P 9 M2.0 nine-
millimeter magazines contain seventeen rounds, and other S&W variants
have similar capacities. The Ruger SR9 has a 17-round standard
magazine. The Ruger SR9 and SR40 carry between nine and 17 rounds.
Springfield Arms XD non-subcompact pistols hold up to 19 rounds.
14 DUNCAN V. BECERRA
“[t]here are at least one hundred million magazines of a
capacity of more than ten rounds in possession of American
citizens, commonly used for various lawful purposes.” The
Helsley report echoed Curcuruto’s findings, noting that after
four decades of sales, “millions of semiautomatic pistols
with a magazine capacity of more than ten rounds and likely
multiple millions of magazines” are in circulation in the
United States. The court thus found that “[m]illions of
ammunition magazines able to hold more than 10 rounds are
in common use by law-abiding responsible citizens for
lawful uses like self-defense.”
Second, the court held that section 32310 fails under
strict scrutiny for lack of narrow tailoring. The court found
section 32310’s complete prohibition on possession by
nearly everyone, everywhere, to be the hallmark of a sloppy
fit. Finally, the district court held that, even though it
believed intermediate scrutiny was decidedly “the wrong
standard” to apply, section 32310 still fails under this more
lenient standard because the statute was not a reasonable fit
to the important public safety interests that it was enacted to
serve. As for the Fifth Amendment claim, the court found
that section 32310 effectuates an unconstitutional taking.
Based on these conclusions, the district court found no
genuine dispute of material fact that section 32310 violates
the Second and Fifth Amendments of the United States
Constitution, and ordered summary judgment for the
Owners. California timely appealed.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291. We review
a district court’s grant of summary judgment de novo. See
Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001)
(en banc).
DUNCAN V. BECERRA 15
ANALYSIS
The state of California 5 argues that the district court
erred by granting summary judgment for the Owners. We
disagree with the government’s position, and we affirm.
California Penal Code section 32310 severely burdens the
core of the constitutional right of law-abiding citizens to
keep and bear arms. The statute is a poor means to
accomplish the state’s interests and cannot survive strict
scrutiny. But even if we applied intermediate scrutiny, the
law would still fail. 6
I. The Second Amendment is a fundamental right
rooted in both text and tradition.
The Second Amendment provides: “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. In 2008, the Supreme
Court held that the Second Amendment protects “an
individual right to keep and bear arms.” Heller, 554 U.S.
at 595. The Court later incorporated the Second Amendment
to the states through the Fourteenth Amendment’s Due
Process Clause. McDonald v. City of Chicago, 561 U.S. 742,
767 (2010). A citizen’s right to self-defense, the Court held,
5
This opinion will also use the terms “the state” or “the
government” to refer to the Defendant-Appellant.
6
We note that the district court’s “simple Heller test” conflicts with
our court’s two-step inquiry framework for the Second Amendment. See
infra at II.A. We are aware of the criticism that the two-step test “appears
to be entirely made up” and that “its application has yielded analyses that
are entirely inconsistent with Heller.” Rogers v. Grewal, 590 U.S. ___
at 3 (June 15, 2020) (Thomas, J., dissenting from denial of certiorari).
But we must follow this court’s precedent.
16 DUNCAN V. BECERRA
is “deeply rooted in this Nation’s history and tradition,” and
“fundamental to our scheme of ordered liberty.” Id. at 767–
78. And indeed, history, text, and tradition underscore that
the right to armed self-defense is fundamental. As the
McDonald decision noted, “many legal systems from
ancient times to the present day” have recognized the right
to defend oneself from aggressors. Id. at 767.
From 1639 to 1660, the British people endured a civil
war — and the creation and dissolution of a Republic during
the Interregnum — until the Stuart Monarchy Restoration.
Starting in 1662, the Catholic Stuarts persecuted their
political enemies, enacting laws that dispossessed all arms
from those deemed “dangerous to the peace of the kingdom.”
13 & 14 Car. II c. 3 (1662). In 1670, Charles II further
restricted possession of “guns” to the exclusive benefit of the
wealthy — the purpose being the “prevention of popular
insurrections and resistance to the government, by disarming
the bulk of the people.” 22 Car. II c. 25 (1670); 2 William
Blackstone, Commentaries *412. In the continuing tumult of
the Protestant Reformation, James II and VII continued these
policies by trying to disarm Protestants while allowing
Catholics to maintain arms. Such despotism led to the King’s
ouster through the Glorious Revolution of 1688, and the
enactment of the Declaration of Rights in 1689. Among
these “true, ancient and indubitable rights” was the right of
“[Protestants] [to] have Arms for their Defence suitable to
their Condition, and as are allowed by Law.” 1 W. & M.,
Sess. 2, c.2 (1689); see also Heller, 554 U.S. at 592–93.
In April 1775 and closer to home, a rag-tag group of
private citizens, armed only with their personal firearms and
makeshift weapons, fired the “shot heard round the world”
in Concord, Massachusetts. Reminders of British efforts to
confiscate personal firearms filled the Founders’ minds
DUNCAN V. BECERRA 17
when drafting the Bill of Rights in 1789. During the
ratification of the Constitution, Antifederalists raised alarm
over a potentially despotic national government that could
disarm the people, as occurred under the Stuart Kings and
other British regimes. See McDonald, 561 U.S. at 768. In
response, the Federalists agreed to include a Bill of Rights,
which, of course, featured the right to bear arms. See
McDonald, 561 U.S. at 769.
In sum, self-defense “is a basic right, recognized by
many legal systems from ancient times to the present day,
and . . . individual self-defense is ‘the central component’ of
the Second Amendment right.” McDonald, 561 U.S. at 767
(citing Heller, 544 U.S. at 599) (emphasis and internal
citation omitted). Heller’s holding ultimately led the Court
to invalidate a District of Columbia law that virtually banned
handgun possession in the home and further required all
other firearms to be “unloaded and disassembled or bound
by a trigger lock or similar device.” 554 U.S. at 630, 635.
The Court found the “inherent right to self-defense” to be a
critical component of the Second Amendment and that the
virtual handgun ban was constitutionally infirm because the
handgun is the “quintessential self-defense weapon.” Id.at 628–29. The Court similarly found the disassembly or
trigger-lock requirement unconstitutional because it “makes
it impossible for citizens to use [arms] for the core lawful
purpose of self-defense.” Id. at 630.
But the ruling in Heller was “not unlimited” and rejected
the idea that citizens may “keep and carry any weapon
whatsoever in any manner whatsoever and for whatever
purpose.” Id. at 626. Heller thus recognized that certain
exceptions to the Second Amendment apply. For example,
weapons that are “dangerous and unusual” fall outside the
Second Amendment’s protection. Id. at 627. Furthermore,
18 DUNCAN V. BECERRA
the Court cited an open-ended list of “presumptively lawful
regulatory measures” that constitute acceptable
“longstanding prohibitions” on firearm ownership. Id.at 626–27, 627 n.26. Such prohibitions include possession of
firearms by felons and the mentally ill, prohibitions on
carriage in sensitive locations, and conditions or
qualifications on the commercial sale of firearms. Id.II. Under this court’s precedent, California Penal Code
section 32310 runs afoul of the Second Amendment.
Applying this court’s precedent, we hold that strict
scrutiny is the proper standard of constitutional review.
California Penal Code section 32310 cannot withstand this
level of scrutiny and is unconstitutional.
A. The Ninth Circuit employs a two-prong test to
determine whether firearm regulations violate the
Second Amendment.
The Ninth Circuit assesses the constitutionality of
firearm regulations under a two-prong test. This inquiry
“(1) asks whether the challenged law burdens conduct
protected by the Second Amendment and (2) if so, directs
courts to apply an appropriate level of scrutiny.” United
States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013)
(internal citations omitted).
To determine whether the law burdens protected
conduct, this court appears to ask four questions. First, as a
threshold matter, we determine whether the law regulates
“arms” for purposes of the Second Amendment. See Jackson
v. City and Cty. of San Francisco, 746 F.3d 953, 967 (9th
Cir. 2014). Second, we ask whether the law regulates an arm
that is both dangerous and unusual. See United States v.
Henry, 688 F.3d 637, 640 (9th Cir. 2012) (citing Heller,
DUNCAN V. BECERRA 19
554 U.S. at 627). If the regulated arm is both dangerous and
unusual, then the regulation does not burden protected
conduct and the inquiry ends. Third, we assess whether the
regulation is longstanding and thus presumptively lawful.
See Chovan, 735 F.3d at 1137. And fourth, we inquire
whether there is any persuasive historical evidence in the
record showing that the regulation affects rights that fall
outside the scope of the Second Amendment. See Silvester
v. Harris, 843 F.3d 816, 821 (9th Cir. 2016). If either of these
latter questions is found in the affirmative, the law does not
burden protected conduct and the inquiry ends.
If a court finds that a regulation burdens protected
conduct, then it must proceed to the second prong of analysis
and determine the appropriate level of constitutional
scrutiny. See Chovan, 735 F.3d at 1136. This, in turn,
requires the court to ask two more questions. First, we ask
how “close” the challenged law comes to the core right of
law-abiding citizens to defend hearth and home. See id.
at 1138. And second, we analyze whether the law imposes
substantial burdens on the core right. See id. If a challenged
law does not strike at the core Second Amendment right or
substantially burden that right, then intermediate scrutiny
applies. See Silvester, 843 F.3d at 821; Jackson, 746 F.3d
at 961; Chovan, 735 F.3d at 1138. Only where both
questions are answered in the affirmative will strict scrutiny
apply. See Silvester, 843 F.3d at 821.
B. Prong One: California Penal Code section 32310
burdens protected conduct.
With our course now charted, we apply the first prong of
the Ninth Circuit’s test to determine whether California
Penal Code section 32310 burdens protected conduct. We
hold that it does.
20 DUNCAN V. BECERRA
1. Firearm magazines are protected arms under the
Second Amendment.
Firearm magazines are “arms” under the Second
Amendment. Magazines enjoy Second Amendment
protection for a simple reason: Without a magazine, many
weapons would be useless, including “quintessential” self-
defense weapons like the handgun. See Heller, 554 U.S.
at 629. We have opined that where firearms “are commonly
possessed by law-abiding citizens for lawful purposes,” then
“there must be some corollary, albeit not unfettered, right to
possess the magazines necessary to render those firearms
operable.” Fyock v. City of Sunnyvale, 779 F.3d 991, 998
(9th Cir. 2015). In Jackson, we held that ammunition is a
protected arm because “without bullets, the right to bear
arms would be meaningless.” 746 F.3d at 967.
We are not alone in this assessment. Our colleagues in
the Third Circuit explicitly held that magazines are protected
arms. See Ass’n of New Jersey Rifle and Pistol Clubs v.
Attorney Gen. New Jersey, 910 F.3d 106, 116 (3d Cir. 2018)
(“ANJRPC”). This was so because “magazines feed
ammunition into certain guns, and ammunition is necessary
for such a gun to function as intended.” Id. Put simply, a
regulation cannot permissibly ban a protected firearm’s
components critical to its operation. See Heller, 554 U.S.
at 630 (holding that a regulation that “makes it impossible
for citizens to use [their firearms] for the core lawful purpose
of self defense” is unconstitutional).
2. LCMs are not unusual arms.
We next determine whether LCMs are arms that fall
outside the scope of the Second Amendment. Heller
provides that some arms are so dangerous and unusual that
they are not afforded Second Amendment protection. See
DUNCAN V. BECERRA 21
554 U.S. at 627. But not so for LCMs. The record before us
amply shows that LCMs are commonly owned and typically
used for lawful purposes, i.e., not unusual.
The Second Amendment “guarantees the right to carry
weapons ‘typically possessed by law-abiding citizens for
lawful purposes.’” Caetano v. Massachusetts, 136 S. Ct.
1027, 1030 (2016) (Alito, J., concurring) (per curiam)
(quoting Heller, 554 U.S. at 625). “A weapon may not be
banned unless it is both dangerous and unusual.” Id. at 1031.
In addressing “unusualness,” the Supreme Court held 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. at 1030
(quoting Heller, 554 U.S. at 582). In other words, just
because a weapon was not in existence during the founding
era does not mean it is “unusual.” And, where a “weapon
belongs to a class of arms commonly used for lawful
purposes,” “the relative dangerousness of a weapon is
irrelevant.” Id. at 1031 (citing Heller, 554 U.S. at 627).
To determine whether an arm is unusual, courts look to
an arm’s commonality or whether it is typically possessed
by law-abiding citizens for purposes of self-defense. See,
e.g., Silvester, 843 F.3d at 830 (Thomas, C.J., concurring)
(finding that the “right to keep and bear arms is limited to
‘the sorts of weapons’ that are ‘in common use’” (quoting
Heller, 554 U.S. at 627–28)); see ANJRPC, 910 F.3d at 116
(holding that for the first prong inquiry, courts “consider
whether the type of arm at issue is commonly owned” (citing
United States v. Marzzarella, 614 F.3d 85, 90–91) (3d. Cir.
2010)).
Commonality is determined largely by statistics. But a
pure statistical inquiry may hide as much as it reveals. In the
Second Amendment context, protected arms may not be
22 DUNCAN V. BECERRA
numerically common by virtue of an unchallenged,
unconstitutional regulation. Our colleagues in the Third and
Seventh Circuits agree. See ANJRPC, 910 F.3d at 116 n.15
(common use alone “is not dispositive” because of an
unconstitutional regulation restricting the quantity of
protected arms in circulation); 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, so that it isn’t
commonly owned. A law’s existence can’t be the source of
its own constitutional validity.”). Thus, “[w]hile common
use is an objective and largely statistical inquiry, typical
possession requires us to look into both broad patterns of use
and the subjective motives of gun owners.” New York State
Rifle & Pistol Ass’n v. Cuomo, 804 F.3d 242, 256 (2d Cir.
2015) (“NYSRPA”) (internal alterations and quotation marks
omitted).
As discussed earlier, nearly half of all magazines in the
United States today hold more than ten rounds of
ammunition. And the record shows that such magazines are
overwhelmingly owned and used for lawful purposes. This
is the antithesis of unusual.
That LCMs are commonly used today for lawful
purposes ends the inquiry into unusualness. But the record
before us goes beyond what is necessary under Heller:
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 LCMs for self-defense is apparent in our shared
national history.
Semi-automatic and multi-shot firearms were not novel
or unforeseen inventions to the Founders, as the first firearm
DUNCAN V. BECERRA 23
that could fire more than ten rounds without reloading was
invented around 1580. Rapid fire guns, like the famous
Puckle Gun, were patented as early as 1718 in London.
Moreover, British soldiers were issued magazine-fed
repeaters as early as 1658. As a predecessor to modern
revolvers, the Pepperbox pistol design pre-dates the
American Revolution by nearly one hundred years, with
common variants carrying five to seven shots at the ready
and with several European variants able to shoot 18 or
24 shots before reloading individual cylinders. Similarly,
breech-loading, repeating rifles were conceptualized as early
as 1791.
After the American Revolution, the record shows that
new firearm designs proliferated throughout the states and
few restrictions were enacted on firing capacities. The
Girandoni air rifle, developed in 1779, had a 22-round
capacity and was famously carried on the Lewis and Clark
expedition. In 1821, the Jennings multi-shot flintlock rifle
could fire 12 shots without reloading. Around the late
antebellum period, one variant of the Belgian Mariette
Repeating Pepperbox could fire 18 shots without reloading.
Pepperbox pistols maintained popularity over smaller-
capacity revolvers for decades, despite the latter being of
newer vintage. At this time, revolving rifles were also
developed like the Hall rifle that held 15 shots.
The advent of repeating, cartridge-fed firearms occurred
at the earliest in 1855 with the Volcanic Arms lever-action
rifle that contained a 30-round tubular magazine, and at the
latest in 1867, when Winchester created its Model 66, which
was a full-size lever-action rifle capable of carrying
17 rounds. The carbine variant was able to hold 12 rounds.
Repeating rifles could fire 18 rounds in half as many
seconds, and over 170,000 were sold domestically. The
24 DUNCAN V. BECERRA
Model 66 Winchester was succeeded by the Model 73 and
Model 92, combined selling over 1.7 million total copies
between 1873 and 1941.
The innovation of the self-contained cartridge along with
stronger steel alloys also fostered development in handguns,
making them smaller and increasing their capacities. Various
revolver designs from France and Germany enabled up to
20 shots to be fired without reloading. A chain-fed variant,
the French Guycot, allowed pistols to carry up to 32 shots
and a rifle up to 100 shots. One American manufacturer
experimented with a horizontally sliding “row of chambers”
(an early stacked magazine) through a common frame,
dubbed the Jarre “harmonica” pistol, holding ten rounds and
patented in 1862. In 1896, Mauser developed what might be
the first semi-automatic, recoil-operated pistol — the
“Broomhandle” — with a detachable 20-round magazine.
Luger’s semiautomatic pistol hit the market in 1899 and
came with seven or eight round magazines, although a 32-
round drum magazine was widely available.
In 1935, Browning developed the 13-round Hi-Power
pistol which quickly achieved mass-market success. Since
then, new semi-automatic pistol designs have replaced the
revolver as the common, quintessential, self-defense
weapon. Many of these pistol models have increased
magazine capacities as a result of double-stacked magazines.
One of the most popular handguns in America today is the
Glock 17, which comes standard with a magazine able to
hold 17 bullets.
Rifle magazine development paralleled that of pistol
magazines. In 1927, Auto Ordinance Company released its
semi-automatic rifle with a 30-round magazine. A decade
and a half later, the M-1 carbine was invented for the “citizen
soldier” of WWII. The M-1 remained a common and popular
DUNCAN V. BECERRA 25
rifle for civilians after the war. In 1963, almost 250,000 M-
1s, capable of holding between 15 and 30 rounds, were sold
at steeply discounted prices to law-abiding citizens by the
federal government. The ultimate successor to the M-1 was
the M-16, with a civilian version dubbed the Armalite
Model 15, or AR-15. The AR-15 entered the civilian market
in 1963 with a standard 20-round magazine and remains
today the “most popular rifle in American history.” The AR-
15 was central to a 1994 Supreme Court case in which the
Court noted that semiautomatic rifles capable of firing “only
one shot with each pull of the trigger” “traditionally have
been widely accepted as lawful possessions.” Staples v.
United States, 511 U.S. 600, 602 n.1, 603, 612 (1994). By
the early-1970s, the AR-15 had competition from other
American rifle models, each sold with manufacturer-
standard 20-round or greater magazines. By 1980,
comparable European models with similar capacities entered
the American market.
The point of our long march through the history of
firearms is this: The record shows that firearms capable of
holding more than ten rounds of ammunition have been
available in the United States for well over two centuries. 7
While the Supreme Court has ruled that arms need not have
been common during the founding era to receive protection
under the Second Amendment, the historical prevalence of
firearms capable of holding more than ten bullets
underscores the heritage of LCMs in our country’s history.
See Heller, 554 U.S. at 582. Thus, we hold that LCMs are
7
For a comprehensive discussion on the history of firearms and
magazines, see Clayton E. Cramer and Joseph Edward Olson, Pistols,
Crime, and Public: Safety In Early America, 44 Willamette L. Rev. 699(2008); see also David B. Kopel, The History of Firearm Magazines and
Magazine Prohibitions, 78 Alb. L. Rev. 849 (2015).
26 DUNCAN V. BECERRA
not “unusual” arms. And because LCMs are not “unusual,”
we need not opine on their dangerousness under our court’s
test. 8
The state claims that LCMs fall outside the scope of the
Second Amendment because they are “most useful in
military service.” But that claim misses its mark. The state
relies on a Fourth Circuit case in which a sharply divided
court held that LCMs are not arms protected by the Second
Amendment because they are “most useful in military
service.” Kolbe v. Hogan, 849 F.3d 114, 137 (4th Cir. 2017).
Kolbe remains an outlier, and other circuits have rejected its
analysis. See, e.g., Worman v. Healey, 922 F.3d 26, 35 (1st
Cir. 2019) (rejecting the test); NYSRPA, 804 F.3d at 256
(finding the test to be “difficult to manage in practice”). We
reaffirm the test announced by the Supreme Court in Heller
and Caetano: Arms are not unusual if commonly owned and
typically used by law-abiding citizens for lawful purposes.
8
Dangerousness is a more difficult question because weapons are
necessarily dangerous. The “very attributes that make handguns
particularly useful for self-defense are also what make them particularly
dangerous.” Heller, 554 U.S. at 711 (Breyer, J., dissenting). While we
do not opine on the dangerousness of LCMs, we note that statistics in the
record show that criminal use of LCMs is relatively low compared to
their market saturation. Despite nearly 115 million LCMs in circulation
in America today, between 1982 and 2012 LCMs were used 31 times in
an incident where four or more people were killed. Let us be perfectly
clear: We do not cite these statistics to downplay the gravity of these
tragic and heartbreaking events. Rather, they are necessary to discern the
“broad patterns of use and subjective motives of gun owners” when
assessing whether “typical possession” is for lawful purposes. See New
York State Rifle & Pistol Ass’n v. Cuomo, 804 F.3d 242, 256 (2d Cir.
2015). Based on the statistics in the record, we conclude that LCMs are
in fact both commonly owned and typically possessed for lawful
purposes.
DUNCAN V. BECERRA 27
See Caetano, 136 S. Ct. at 1030 (Alito, J., concurring); see
also Heller, 554 U.S. at 621–25.
3. LCM prohibitions are not longstanding
regulations and do not enjoy a presumption of
lawfulness.
Some firearm prohibitions are presumptively lawful
because of their longstanding nature. Heller lists three types
of permissible regulations that are presumptively consistent
with the Second Amendment: prohibitions on possession by
the mentally ill or felons, laws forbidding carriage in
sensitive places, and laws that place qualifications on
commercial sales of firearms. 554 U.S. at 626–27. 9 But
because this list was held to be non-exhaustive by Heller and
later affirmed in McDonald, 561 U.S. at 786, a court
reviewing other types of laws must determine whether those
laws are sufficiently longstanding regulations.
This, of course, raises the question of what constitutes a
sufficiently longstanding regulation. In our circuit, we have
looked for evidence showing whether the challenged law
9
Heller did not clarify whether these “presumptively lawful”
restrictions are rebuttable. See 554 U.S. at 626–27, 627 n.26. Our court
has not directly addressed this issue. See United States v. Phillips,
827 F.3d 1171, 1176 n.5 (9th Cir. 2016) (noting that it “remains to be
seen” whether someone can challenge a felon-in-possession charge if the
felony predicate is “stealing a lollipop”). Several of our sister circuits,
however, have held that a litigant may be able to raise an as-applied
challenge to such laws. See Binderup v. Attorney Gen. U.S., 836 F.3d
336, 343–44 (3d Cir. 2016) (en banc); Schrader v. Holder, 704 F.3d 980,
988–89 (D.C. Cir. 2013); United States v. Moore, 666 F.3d 313, 316 (4th
Cir. 2012); United States v. Torres-Rosario, 658 F.3d 110, 113 (1st Cir.
2011); United States v. Williams, 616 F.3d 685, 691–92 (7th Cir. 2010);
see also United States v. Woolsey, 759 F.3d 905, 909 (8th Cir. 2014)
(hearing as-applied challenge to § 922(g)(1) but not mentioning Heller).
28 DUNCAN V. BECERRA
traces its lineage to founding-era or Reconstruction-era
regulations. In Chovan, for example, we expressed strong
doubts that bans on firearm possession for violent offenders
were sufficiently longstanding because the first known
restriction was not enacted until 1938. See 735 F.3d at 1137
(citing C. Kevin Marshall, Why Can’t Martha Stewart Have
a Gun?, 32 Harv. J.L. & Pub. Pol’y 695, 698, 708 (2008)).
In Jackson, we reviewed regulations on handgun storage and
sales of certain ammunition, keying our analysis to
analogues in founding-era and Reconstruction-era fire safety
laws. 746 F.3d at 962–63.
Section 32310 cannot be considered a longstanding
regulation that enjoys presumptive legality. As noted above,
when the Founders ratified the Second Amendment, no laws
restricted ammunition capacity despite multi-shot firearms
having been in existence for some 200 years. Only during
Prohibition did a handful of state legislatures enact capacity
restrictions. 10 As the Third Circuit in ANJRPC noted,
“LCMs were not regulated until the 1920s, but most of those
laws were invalidated by the 1970s.” 910 F.3d at 117 n.18.
At the federal level, Congress chose to impose the
strictest regulations on fully automatic machine guns with
the National Firearms Act of 1934. See Pub. L. No. 73-474,
48 Stat. 1236. But despite its strong regulations, the law
imposed no similar restrictions on magazine possession.
Congress briefly prohibited LCMs with capacities greater
than ten rounds when it enacted the Violent Crime Control
10
These states included Michigan (1927, repealed in 1959), Rhode
Island (1927, repealed in 1975), and Ohio (1933, repealed in 2014). It is
important to note that the Rhode Island and Michigan statutes applied
only to weapons rather than magazines, and the Ohio statute was
interpreted to only forbid the simultaneous purchase of a firearm and
compatible 18-round magazine.
DUNCAN V. BECERRA 29
and Law Enforcement Act of 1994. See Pub. L. No. 103-322,
108 Stat. 1796 (codified at 18 U.S.C. §§ 921(a)(31)(A),
922(w)(1) (expired 2004)). But even during the ten years
between the federal ban’s enactment and expiration, a
grandfather clause allowed continued possession for
previously purchased LCMs. See id. § 922(w)(2) (expired
2004). In fact, the only statute regulating LCMs that has been
in continuous existence, and only since 1932, is found in the
District of Columbia, which prohibits possession of a
firearm that “shoots automatically or semi-automatically
more than twelve shots without reloading.” Act of July 8,
1932, Pub. L. No. 72-275, 47 Stat. 650. Only recently, and
in apparent conjunction with the 1994 federal experiment
banning assault weapons, have a small smattering of states
experimented with various LCM regulations.
In sum, laws restricting ammunition capacity emerged in
1927 and all but one have since been repealed. Cf. Heller,
554 U.S. at 632 (“[W]e would not stake our interpretation of
the Second Amendment upon a single law . . . that
contradicts the overwhelming weight of other evidence
regarding the [Second Amendment].”). Modern LCM
restrictions are of an even younger vintage, only enacted
within the last three decades. Thus, the LCM restrictions of
section 32310 cannot be considered longstanding, and thus
do not enjoy a presumption of lawfulness. 11
11
See Ass’n of New Jersey Rifle and Pistol Clubs v. Attorney Gen.
New Jersey, 910 F.3d 106, 116, 117 n. 18 (3d Cir. 2018) (“While a lack
of longstanding history does not mean that the regulation is unlawful, the
lack of such a history deprives us of reliance on Heller’s presumption
that such regulation is lawful.”); Heller v. District of Columbia, 670 F.3d
1244, 1260 (D.C. Cir. 2011) (“Heller II”) (“We are not aware of evidence
that prohibitions on either semi-automatic rifles or large-capacity
magazines are longstanding and thereby deserving of a presumption of
30 DUNCAN V. BECERRA
4. There is no persuasive historical evidence in the
record showing LCM possession falls outside the
ambit of Second Amendment protection.
In a similar vein, courts may assess historical
understandings to determine whether a challenged law is a
permissible regulation. To do so, we must look for
“persuasive historical evidence establishing that the
regulation at issue imposes prohibitions that fall outside the
historical scope of the Second Amendment.” Jackson,
746 F.3d at 960; see also Peruta v. Cty. of San Diego,
824 F.3d 919, 939 (9th Cir. 2016) (en banc) (holding that
carriage of concealed weapons outside the home was beyond
the scope of the Second Amendment after engaging in a
lengthy historical analysis spanning the late English
medieval period through Supreme Court precedent in the late
1800s); Chovan, 735 F. 3d at 1137 (noting the lack of
historical evidence that the Second Amendment did not
apply to domestic violence misdemeanants).
The record before us provides no persuasive historical
evidence showing that LCM possession is understood to fall
outside the scope of the Second Amendment. As discussed
above, the historical record shows that LCM restrictions are
modern creations.
The Seventh Circuit in Ezell v. City of Chicago reached
a similar conclusion. That case involved a municipal
ordinance that required firing-range training as a prerequisite
to gun ownership while prohibiting all firing ranges in the
City of Chicago. 651 F.3d 684, 704–05 (7th Cir. 2011). The
validity.”); see also Chovan, 735 F.3d at1137 (doubting whether a
restriction was longstanding because similar restrictions were enacted
starting in 1938).
DUNCAN V. BECERRA 31
Ezell court was presented with two laws from 1826 and 1831
that were relevant to its analysis. Id. at 706. These laws fell
“far short of establishing that target practice is wholly
outside the Second Amendment as it was understood when
incorporated as a limitation on the States.” Id. Compare with
Peruta, 824 F.3d at 939 (noting an unbroken lineage of
prohibitions on concealed carriage since 1541).
* * *
As for prong one of our analysis, the record shows that
LCMs are not subject to the exceptions announced in Heller.
Magazines are protected arms, and larger capacity
magazines are not unusual. LCMs have never been subject
to longstanding prohibitions. And a historic analysis fails to
persuade that LCMs otherwise fall outside constitutional
protections. We hold that California Penal Code section
32310 burdens protected conduct and proceed to the second
prong of the analysis.
C. Prong Two: Strict scrutiny is the appropriate
standard to apply.
Because California Penal Code section 32310 burdens
protected conduct, we must now determine what standard of
constitutional scrutiny applies. Section 32310 strikes at the
core right of law-abiding citizens to defend hearth and home,
and the burden imposed on the core right is substantial. As
this court has held, where a burden on the core right is
substantial, strict scrutiny is appropriate. See Silvester,
843 F.3d at 821.
32 DUNCAN V. BECERRA
1. California Penal Code section 32310 strikes at
the core right of law-abiding citizens to self-
defend by banning LCM possession within the
home.
Heller held that the “core” Second Amendment right is
for law-abiding citizens to defend hearth and home. 554 U.S.
at 635; see also Kachalsky v. Cty. of Westchester, 701 F.3d
81, 89 (2d Cir. 2012) (“Second Amendment guarantees are
at their zenith within the home.”). This is a simple inquiry:
If a law regulating arms adversely affects a law-abiding
citizen’s right of defense of hearth and home, that law strikes
at the core Second Amendment right. See Jackson, 746 F.3d
at 963 (finding that a challenged law “[o]n its face . . .
implicates the core because it applies to law-abiding citizens
and imposes restrictions on the use of handguns within the
home”).
Section 32310 strikes at core Second Amendment rights.
By banning LCMs everywhere for nearly everyone, it
necessarily bans possession of LCMs within the home where
protections are “at their zenith.” Kachalsky, 701 F.3d at 89.
We stated in Fyock that because Sunnyvale’s LCM
ordinance “restricts the ability of law-abiding citizens to
possess large-capacity magazines within their homes for the
purpose of self-defense, . . . [the ordinance] may implicate
the core of the Second Amendment.” 779 F.3d at 999. The
Second Circuit in NYSRPA was more explicit. That court
held that LCM restrictions “[b]y their terms . . . implicate the
core of the Second Amendment’s protection by extending
into the home, ‘where the need for defense of self, family
and property is most acute.’” 804 F.3d at 258 (citing Heller,
554 U.S. at 628). So too here.
DUNCAN V. BECERRA 33
2. California Penal Code section 32310
substantially burdens core Second Amendment
rights.
Section 32310 burdens core Second Amendment rights
in a substantial way, requiring us to review it under strict
scrutiny. The law categorically bars the possession of
magazines that are commonly used in handguns, the
“quintessential self-defense weapon.” Heller, 554 U.S.
at 629. And it bans LCM possession for nearly everyone,
everywhere in California. Simply put, any law that comes
close to categorically banning the possession of arms that are
commonly used for self-defense imposes a substantial
burden on the Second Amendment.
a. Self-defense is a fundamental right rooted in
our national history.
While the political branches enjoy latitude to craft
legislation to stamp out gun violence, their powers are not
limitless if they encroach on an enumerated right enshrined
in our Constitution. Moreover, the Second Amendment is
more than just a right guaranteed in our Bill of Rights. As
the Supreme Court has held, self-defense is a “fundamental”
individual right that is “necessary to our system of ordered
liberty.” See McDonald, 561 U.S. at 778. It is also pre-
existing. “This is not a right granted by the Constitution.
Neither is it in any manner dependent upon that instrument
for its existence.” United States v. Cruikshank, 92 U.S. 542,
553 (1875). In short, the right of armed self-defense sits atop
our constitutional order and remains rooted in our country’s
history. Any law that limits this right of self-defense must be
evaluated under this constitutional and historical backdrop.
The seeds of the modern right to defend oneself
germinated from fertile ground long ago. The English Bill of
34 DUNCAN V. BECERRA
Rights, considered the predecessor to our own, conferred an
individual right to self-defense. See Heller, 554 U.S. at 593.
“[T]he right secured in 1689 as a result of the Stuarts’ abuses
was by the time of the founding understood to be an
individual right protecting against both public and private
violence.” Id. And “[b]y the time of the founding, the right
to have arms had become fundamental for English subjects.”
Id.American colonists similarly understood their rights to
include the “‘right of self-preservation’ as permitting a
citizen to ‘repe[l] force by force’ when ‘the intervention of
society in his behalf, may be too late to prevent an injury.’”
Id. at 594–95 (citing 1 William Blackstone, Commentaries
*145–146, n. 42). This belief was galvanized by George III’s
attempt to disarm the colonists just as the Stuarts attempted
to disarm Protestants. Id. at 594.
Before our federal Bill of Rights was ratified, at least
four states — Pennsylvania, Vermont, North Carolina, and
Massachusetts — included within their state constitutions, or
“Declaration of Rights,” a guarantee to keep and bear arms.
See Heller, 554 U.S. at 601, 595 n. 8. Shortly after the
ratification of our Constitution, at least nine state
constitutions “enshrined a right of citizens to ‘bear arms in
defense of themselves and the state’ or ‘bear arms in defense
of himself and the state.’” Id. at 584–85, 585 n.8.
Perhaps the most poignant and persuasive reminder of
the fundamental right to self-defense rests in the denial of
that right to Black Americans during tragic chapters of our
country’s history. After the founding, Southern states often
severely limited, or outright prohibited, firearm possession
DUNCAN V. BECERRA 35
by slaves, freedmen, and others. 12 The judicial branch, too,
played a role in denying this fundamental right of self-
defense to Blacks. In the infamous Dred Scott v. Sanford
decision, Chief Justice Taney recited a parade of horribles if
Black Americans were to be considered citizens: it would
give Blacks the “right to enter every other State whenever
they pleased,” to exercise “full liberty of speech,” to “hold
public meetings upon political affairs,” and “to keep and
carry arms wherever they went.” 60 U.S. 393, 417 (1857).
It did not get much better even after a bloody war that
tore the country apart. Post-Civil War state legislation and
the Black Codes in the South deprived newly freed slaves of
their Second Amendment rights. McDonald, 561 U.S.
at 771. Meanwhile, armed bands of ex-Confederates roamed
the countryside forcibly disarming and terrorizing African-
Americans. See id. at 772–73. The Radical Republicans in
Congress fought back against these “systematic efforts . . .
to disarm” Black Americans by enacting the Freedmen’s
Bureau Act of 1866 and the Civil Rights Acts of 1866, both
of which guaranteed all persons the right of self-defense. Id.at 771–74.
But laws promising protection and equality for African-
Americans rang hollow because, in the post-Reconstruction
era, the Ku Klux Klan and other marauding bands of
terrorists slaughtered thousands of unarmed Black
Americans. See generally Allen W. Trelease, White Terror:
The Ku Klux Klan Conspiracy and Southern Reconstruction
12
See, e.g., Act of Mar. 2, 1819, ch. 111, § 7, 1819 Va. Acts 423(repealed); Act of Nov. 1, 1806, ch. 81, § 1, 1811 Md. Laws 297(repealed); State v. Newsom, 27 N.C. 250, 207 (N.C. 1844) (quoting Act
of Jan. 11, 1841, ch.30, 1840 N.C. Sess. Laws 61) (repealed); Act of Dec.
19, 1865, vol. 8, Ch. 13, No. 4731, 1865 S.C. Acts 250 (S.C. 1865)
(repealed).
36 DUNCAN V. BECERRA
(1971); see also Robert J. Kaczorowski, Federal
Enforcement of Civil Rights During the First
Reconstruction, 23 Fordham Urb. L. J. 155, 156–57 (1995).
Not surprisingly, Black Americans embraced their right to
self-defense, understanding that protections offered by the
state may be promising in theory but fatal in fact. Ida B.
Wells — the crusading journalist who co-founded the
NAACP — wrote that “a Winchester rifle should have a
place of honor in every black home, and it should be used
for that protection which the law refuses to give.” Ida B.
Wells, Southern Horrors and Other Writings: The Anti-
Lynching Campaign of Ida B. Wells, 1892–1900 70
(Jacqueline Jones Royster ed., 1997). Martin Luther King,
Jr., despite his non-violent approach to protest, owned
numerous firearms and hired armed men to guard his house
during the Montgomery Bus Boycott in 1956. See Annelieke
Dirks, Between Threat and Reality: The National
Association for the Advancement of Colored People and the
Emergence of Armed Self-Defense in Clarksdale and
Natchez, Mississippi, 1960–1965, 1 J. for the Study of
Radicalism 71, 73 (2007). One civil rights activist who
visited Dr. King’s home during that time described the house
as an “arsenal.” Id.Stories of other civil rights activists exercising their right
to self-defense are legion. While the NAACP espoused
nonviolence, many of its members carried firearms for self-
protection, and for good reason. See id. at 71. Aaron Henry,
then a branch president of the NAACP, would openly
display his firearm after his house was firebombed in 1963.
See id. When NAACP activist Hartman Turnbow tried to
register to vote, nightriders lit his house on fire with Molotov
cocktails. See id. at 72. Turnbow recounted that he grabbed
his rifle, escaped the burning building, and exchanged
gunfire with two white men waiting outside. See id. The men
DUNCAN V. BECERRA 37
fled once Turnbow started shooting back. See id. Ida B.
Wells documented that “[o]f the many inhuman outrages of
[that] year, the only case where the proposed lynching did
not occur, was where the men armed themselves . . . and
prevented it. The only times an Afro-American who was
assaulted [and] got away has been when he had a gun and
used it in self-defense.” Ida B. Wells, supra.
During the crucible of the civil rights movement, Black
American veterans from World War II and the Korean War
founded the Deacons for Defense and Justice to protect
Black people from racial violence at the hands of the Ku
Klux Klan. See generally Lance Hill, The Deacons for
Defense: Armed Resistance and the Civil Rights Movement
(Univ. of N.C. Press ed., 2004). In 1966, the small Louisiana
town of Bogalusa integrated the local junior high school to
the ire of the local Klan. See id. at 1. Armed with guns, this
roving band of racist terrorists arrived at the junior high
school. See id. Their intentions were obvious: In that small
town, two African-Americans, one of whom was a deputy
sheriff, had been recently killed by white people. See id. But
this time around, the Klan encountered something
unexpected at the entrance of the school: The Deacons for
Defense and Justice — armed with revolvers and rifles, and
rooted in righteousness and resolution. Outgunned by the
Deacons, the Klan fled. See id. As one member of the
Deacons noted afterwards, “From that day forward, we
didn’t have too many more problems.” Id. at 2.
These terrible events did not occur long ago in faraway
lands. They occurred on American soil, some less than sixty
years ago. And tragically, they are not unique. Indeed, Black
Americans’ experience throughout the civil rights
movement was just the latest iteration in an ongoing struggle
to defend hearth and home from those who wished them ill.
38 DUNCAN V. BECERRA
See Dirks, supra, at 72–73 (“This was part of a long-standing
tradition of revolts, armed resistance, and self-defense that
developed during slavery and continued after emancipation
when Reconstruction failed to deliver political and social
equality for Black Americans.”).
Our country’s history has shown that communities of
color have a particularly compelling interest in exercising
their Second Amendment rights. The Second Amendment
provides one last line of defense for people of color when the
state cannot — or will not — step in to protect them. This
remains true today across all communities of color. For
example, amid the COVID-19 pandemic, Asian-Americans
have become the target of physical attacks by those who
scapegoat them for the virus. See Sabrina Tavernise and
Richard A. Oppel, Jr., Spit On, Yelled At, Attacked: Chinese-
Americans Fear for Their Safety, N.Y. Times, Mar. 24,
2020, at A1. In response to these assaults and threats to their
lives, Asian-Americans have begun arming themselves. See
id. When one Asian mother was asked why she was buying
a pistol, she replied in tears, “[t]o protect my daughter.” Id.
Another Asian immigrant purchasing an AR-15 rifle feared
violence should COVID-19 deaths continue to mount: “And
when all these bad things come, I am a minority. People can
see my face is Chinese, clearly. My son, when he goes out,
they will know his parents are Chinese.” Id.
People of color are not alone in relying on the Second
Amendment to protect themselves when the state’s
protections fail them. We need look no further than the facts
of the Supreme Court’s Caetano decision. Jaime Caetano
had obtained multiple restraining orders against her abusive
boyfriend after he had put her in the hospital. See Caetano,
136 S. Ct. at 1028–29 (Alito, J., concurring). Unfortunately,
restraining orders meant little to her abuser. See id. He
DUNCAN V. BECERRA 39
continued to stalk and menace her. One day, he waited for
her outside her workplace, but this time she came armed. See
id. The abusive boyfriend “got scared and he left [her]
alone.” Id. Her story is not unique. For many women, a
firearm may be the equalizer against their abusers and
assailants when the state fails to protect them. 13
So, too, for members of the lesbian, gay, bisexual, and
transgender (LGBT) communities. They are
“disproportionately the victims of hate crimes and other
types of criminal violence” because they are “perceived . . .
as safe targets for violence and hateful acts.” Brief for Pink
Pistols, et al. as Amici Curiae Supporting Plaintiffs-
Appellees at 2. As amici Pink Pistols explain in their brief,
armed self-defense can dispel those perceptions and deter
such attacks against LGBT members. See id.We mention these examples to drive home the point that
the Second Amendment is not a second-class right. See
McDonald, 561 U.S. at 780–81. Nor is self-defense a
dispensation granted at the state’s mercy. Rather, the Second
Amendment is a fundamental constitutional right guaranteed
to the people — especially those who may not be equally
protected by the state. Moreover, the Second Amendment is
not a relic relevant only during the era of Publius and
parchments. It is a right that is exercised hundreds of times
on any given day. The parties and amici disagree on the
number of times that guns are used for defensive purposes,
offering anywhere from 240,000 to 2.5 million times a year.
13
See McDonald v. City of Chicago, 561 U.S. 742, 78–90, 790 n.33
(2010) (citing, among others, Brief for Pink Pistols as Amici Curiae)
(“Amici . . . contend that the right is especially important for women and
members of other groups that may be especially vulnerable to violent
crime.”).
40 DUNCAN V. BECERRA
That means that an average of 657 Americans — and
perhaps up to 6,849 Americans — use guns to defend
themselves every single day of the year. We take notice of
this fact in recognizing the fundamental right of self-defense.
b. California Penal Code section 32310
substantially burdens Second Amendment
rights.
California Penal Code section 32310 substantially
burdens core Second Amendment rights because of its
sweeping scope and breathtaking breadth. Half of all
magazines in the United States are now illegal to own in
California. It does not matter that these magazines are not
unusual and are used commonly in guns for self-defense.
Law-abiding citizens must alter or turn them over — or else
the government may forcibly confiscate them from their
homes and imprison them up to a year. The law’s
prohibitions apply everywhere in the state and to practically
everyone. It offers no meaningful exceptions at all for law-
abiding citizens. These features are the hallmark of
substantial burden.
The state argues that its law does not impose a substantial
burden on the Second Amendment because citizens still can
defend themselves with guns equipped with non-LCMs. But
the Supreme Court in Heller rejected that type of policy
argument when it comes to a fundamental constitutional
right. We know from that case that a regulation may impose
a substantial burden on the Second Amendment, even
though the restriction does not foreclose the right to self-
DUNCAN V. BECERRA 41
defense. See Heller, 554 U.S. at 574. 14 The District of
Columbia law banning possession of handguns did not
prevent citizens from defending themselves because, as the
District argued, they could still use a shotgun or a variety of
other arms to defend themselves. But the Supreme Court
rejected the argument that “it is permissible to ban the
possession of handguns so long as the possession of other
firearms (i.e., long guns) is allowed.” Heller, 554 U.S.
at 629. Because the law banned an “entire class of ‘arms’
that is overwhelmingly chosen by American society” for
self-defense — a handgun, in that case — the restriction was
“severe” and ran afoul of the Second Amendment. Id.
at 628. California’s law, too, bans an “entire class of ‘arms’”
that is commonly used for self-defense and thus infringes on
the Second Amendment. 15
The state essentially invites us to engage in a policy
decision that weighs the pros and cons of an LCM ban to
14
As discussed earlier (n.6), Heller itself does not mention
“substantial burden,” but this court has construed Heller to require a two-
step analysis that includes a substantial burden component.
15
The dissent concludes that LCMs do not qualify as a separate class
of arms, but rather “are simply larger magazines.” Dissent Op. at 71. But
we need only to look at California’s statute to conclude that it is indeed
a class of arms: The state created this separate class by its definition of
what constitutes an LCM under Penal Code section 16740. Moreover,
LCMs cannot be fairly characterized as a mere subset of magazines
because they account for half the magazines in America. Finally, the
dissent concludes that the LCM restriction is more akin to a manner
restriction because it only affects how one can exercise her Second
Amendment right. But in the First Amendment context, no court would
uphold a state’s ban on half of all parks and sidewalks for public protest
because the other half remained available for use. We thus do not agree
that prohibiting possession of one of every two otherwise protected arms
constitutes a mere regulation on the manner in which one exercises her
Second Amendment rights.
42 DUNCAN V. BECERRA
determine “substantial burden.” That is exactly what the
dissent in Heller proposed: Ask “whether the statute burdens
a protected interest in a way or to an extent that is out of
proportion to the statute’s salutary effects upon other
important governmental interests.” Id. at 689–90 (Breyer, J.,
dissenting). But the Supreme Court in Heller took any such
policy-balancing notion off the table: “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. 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.” Id. at 634–35.
Put another way, a “substantial burden” on the Second
Amendment is viewed not through a policy prism but
through the lens of a fundamental and enumerated
constitutional right. We would be looking through the wrong
end of a sight-glass if we asked whether the government
permits the people to retain some of the core fundamental
and enumerated right. Instead, Heller counsels us to look at
whether the government regulation restricts the core
fundamental right from the outset. In other words, we look
to what a restriction takes away rather than what it leaves
behind. Here, California’s law takes away a substantial
swath of the core constitutional right of self-defense because
it bans possession of half of all magazines in America today,
even though they are common in guns used for self-defense.
In short, a law that takes away a substantial portion of arms
commonly used by citizens for self-defense imposes a
substantial burden on the Second Amendment.
DUNCAN V. BECERRA 43
Notably, the Supreme Court has taken a similar approach
in a kaleidoscope of cases involving other fundamental
enumerated rights. The Court does not look away from a
governmental restriction on the people’s liberty just because
the state did not impose a full-tilt limitation on a fundamental
and enumerated right. Rather, in assessing a governmental
imposition on a fundamental right, the Court shuns policy-
balancing and focuses on the erosion of the people’s
liberties. See, e.g., Reynolds v. Sims, 377 U.S. 533, 561–62
(1964) (“Undoubtedly, the right [to vote] . . . is a
fundamental matter in a free and democratic society. . .
[A]ny alleged infringement of the right . . . must be carefully
and meticulously scrutinized.”); W. Va. State Bd. of Educ. v.
Barnette, 319 U.S. 624, 638 (1943) ( “The very purpose of a
Bill of Rights was to withdraw certain subjects from the
vicissitudes of political controversy, to place them beyond
the reach of majorities and officials and to establish them as
legal principles to be applied by the courts. One’s right to
life, liberty, and property, to free speech, a free press . . . and
other fundamental rights may not be submitted to vote; they
depend on the outcome of no elections.”); Jacob v. City of
N.Y., 315 U.S. 752, 752–53 (1942) (“A right [to jury trial] so
fundamental and sacred to the citizen, whether guaranteed
by the Constitution or provided by statute, should be
jealously guarded by the courts.”). We find ourselves in
good company in declining the state’s invitation to hold
otherwise.
Our decision today is in keeping with Ninth Circuit
precedent. While we have not articulated a precise standard
for what constitutes a substantial burden on core Second
Amendment rights, we have consistently stated that a law
that bans possession of a commonly used arm for self-
defense — with no meaningful exception for law-abiding
citizens — likely imposes a substantial burden on the Second
44 DUNCAN V. BECERRA
Amendment. 16 And for good reason: The Supreme Court
has scrutinized with a gimlet eye any limitation of a
fundamental right exercised at home because such an
imposition, by its nature, severely restricts individual liberty.
Here, the state effectively intrudes into the homes of law-
abiding citizens to forcibly confiscate arms that they rely on
for self-defense. If the Supreme Court has made one thing
clear time and again, it is that the home is a sanctuary and
the government should be chary to intrude. Cf. Lawrence v.
Texas, 539 U.S. 558, 562 (2003) (“Liberty protects the
person from unwarranted government intrusions into a
dwelling or other private places. In our tradition the State is
not omnipresent in the home.”).
So, in Jackson, we held that a bar on the sale of hollow-
point ammunition within city limits was not a severe burden
because San Francisco residents could still own that
ammunition within the home. 746 F.3d at 968. We thus
applied intermediate scrutiny to the regulation. See id. Stated
differently, we implied that strict scrutiny likely applies if a
law completely bans the possession of a certain class of
ammunition (there, hollow-point bullets).
Two years later in Silvester, we applied intermediate
scrutiny to a ten-day waiting period because it did not
completely ban possession. 843 F.3d at 827. We held that
such regulations were more akin to time, place, or manner
restrictions in the First Amendment context. See id. In doing
so, we implied that a complete ban on possession likely
merits a more stringent review than intermediate scrutiny.
16
We are not articulating a universal principle but are providing one
circumstance where strict scrutiny applies.
DUNCAN V. BECERRA 45
Then in 2018 in Pena, our court reaffirmed that
possession bans on arms are strong medicine likely requiring
strict scrutiny. We held that a grandfather provision was
“important[]” to our decision to apply intermediate scrutiny.
898 F.3d at 977. 17 Put differently, the lack of a grandfather
provision likely requires strict scrutiny because
governmental bans on possession cut deeply into the core
constitutional right to protect hearth and home.
Perhaps this point was made most clear in Chovan.
735 F.3d at 1138. While we applied intermediate scrutiny on
a ban on arms for domestic violence misdemeanants, we
made clear that the standard was different for law-abiding
citizens. See id. If a ban on arms borders on a “total
prohibition” of ownership for law-abiding citizens, the
burden is substantial. See id. 18
Turning to whether section 32310 imposes a substantial
burden on the Second Amendment, the record makes that
answer plainly obvious. Half of all magazines in America
are prohibited under section 32310. The state threatens
imprisonment if law-abiding citizens do not alter or turn
them over. It does not matter that LCMs come standard for
guns commonly used for self-defense, or that law-abiding
17
In Worman v. Healy, the Fourth Circuit similarly applied
intermediate scrutiny to a law containing a grandfather clause for
weapons owned lawfully before its enactment. See 922 F.3d 26, 31–32.
18
Other courts have adopted similar analysis. The Third Circuit has
held, for example, that a ban on possessing firearms with obliterated
serial numbers did not generate significant burdens because a gun owner
remains free to possess any firearm they choose so long as it has an intact
serial number. See United States v. Marzzarella, 614 F.3d 85, 97 (3d.
Cir. 2010); see also Kolbe v. Hogan, 849 F.3d 114, 123 (4th Cir. 2017)
(noting that the law under review “does not ban the possession of a large-
capacity magazine”).
46 DUNCAN V. BECERRA
citizens may have owned them lawfully for years or even
decades. When the government bans tens of millions of
protected arms that are staples of self-defense and threatens
to confiscate them from the homes of law-abiding citizens,
that imposes a substantial burden on core Second
Amendment rights.
Moreover, California’s law has no meaningful
exceptions for law-abiding citizens. There is no grandfather
clause that Pena found “important” to avoid strict scrutiny.
898 F.3d at 977. None of the limited exceptions in the statute
speak to the average law-abiding citizen, and none mitigate
the severe burdens imposed by section 32310 on core
Second Amendment rights. California’s LCM ban applies to
almost everyone, everywhere, and to nearly every weapon
that can be reasonably expected for use in self-defense. If a
far-reaching law restricting arms contains no meaningful
exceptions for law-abiding citizens who use them for self-
defense, it invites strict scrutiny.
Section 32310 also cannot be considered merely a time,
place, or manner regulation. Unlike Jackson’s storage
requirements, a wholesale statewide prohibition on
possession of one out of every two magazines is greater in
scope and severity. And Pena’s microstamping requirement
for guns could properly be considered a manner restriction
because it did not dispossess owners of nonconforming
weapons. The same can be said for the law in Silvester that
otherwise did not affect how a citizen exercises her Second
Amendment rights after completing the ten-day waiting
period.
Section 32310 instead appears to be more like the firing-
range restrictions that the Seventh Circuit in Ezell struck
down. The City of Chicago had banned firing ranges within
city limits, which the Seventh Circuit held was “a serious
DUNCAN V. BECERRA 47
encroachment” on the right to self-defense. 651 F.3d at 708–
09. This, the court held, constituted more than a restriction
on the manner in which those rights were exercised because
of the importance of having weapons training and
proficiency among the firearm-owning public. Id. at 708.
The magazine restrictions here, as in Ezell, amount to a
“serious encroachment.” Cf. Jackson v. City and Cty. of San
Francisco, 135 S. Ct. 2799, 2801 (2015) (Thomas, J.,
dissenting from denial of certiorari) (considering the burden
“significant” where residents are prohibited from keeping
handguns operable for immediate self-defense via storage
requirements).
More fundamentally, no court would ever countenance
similar restrictions for other fundamental rights. The nub of
the state’s position is that even though it bars Californians
from owning one of every two magazines in the United
States, that restriction is not substantially burdensome
because Californians can still possess other magazines. But
no court would hold that the First Amendment allows the
government to ban “extreme” artwork from Mapplethorpe
just because the people can still enjoy Monet or Matisse. Nor
would a court ever allow the government to outlaw so-called
“dangerous” music by, say, Dr. Dre, merely because the state
has chosen not to outlaw Debussy. 19 And we would never
sanction governmental banning of allegedly “inflammatory”
views expressed in Daily Kos or Breitbart on the grounds
19
Cf. Rebecca Laurence, NWA: ‘The World’s Most Dangerous
Group’?, BBC (Aug. 13, 2015), http://www.bbc.com/culture/story/201
50813-nwa-the-worlds-most-dangerous-group (discussing failed efforts
to limit “dangerous” gangster rap music).
48 DUNCAN V. BECERRA
that the people can still read the New York Times or the Wall
Street Journal. 20
The state relies on the fallback position that the Second
Amendment deserves less protection because it allegedly
poses an inherent danger to public safety that other rights do
not. But individual rights often impose at least some risk on
public safety. “The right to keep and bear arms . . . is not the
only constitutional right that has controversial public safety
implications. All of the constitutional provisions that impose
restrictions on law enforcement and on the prosecution of
crimes fall into the same category.” McDonald, 561 U.S.
at 783 (internal citations omitted).
The exclusionary rule in criminal procedure is a clear
example. Under that doctrine, “the criminal is to go free
because the constable has blundered.” Mapp v. Ohio,
367 U.S. 643, 659 (1961) (internal quotations and citation
omitted). Surely, too, the government’s efforts to secure
20
The state’s implicit suggestion that the Second Amendment
deserves less protection than the First Amendment conflicts with
precedent that we look to the First Amendment for guidance in fleshing
out jurisprudence for the Second Amendment. See, e.g., Jackson,
746 F.3d at 960 (the Second Amendment “inquiry bears strong analogies
to the Supreme Court’s free-speech caselaw”); Ezell, 651 F.3d at 706–
07 (“Heller and McDonald suggest that First Amendment analogues are
more appropriate, and . . . have already begun to adapt First Amendment
doctrine to the Second Amendment context.” (internal citations
omitted)). The state’s approach is also at odds with the Supreme Court’s
framework for other rights. Cf., e.g., June Med. Servs. LLC v. Russo,
591 U.S. ___ at 35 (June 29, 2020) (invalidating a state law as unduly
burdensome on a woman’s right to abortion because it would have
reduced the state’s abortion capacity by over half); Whole Woman’s
Health v. Hellerstedt, 136 S. Ct. 2292, 2312 (2016) (invalidating as
unduly burdensome a similar law that reduced the number of abortion
clinics “from about 40 to about 20” within the state).
DUNCAN V. BECERRA 49
damning criminal confessions has been hobbled since
Miranda v. Arizona. “The most basic function of any
government is to provide for the security of the individual
and of his property. . . . The rule announced today will
measurably weaken the ability of the criminal law to perform
these tasks.” Miranda v. Arizona, 384 U.S. 436, 539–41
(1966) (White, J., dissenting). This is not hypothetical.
Criminals sometimes go free because our society prioritizes
individual constitutional rights over concerns that freed
offenders may commit crimes again. See, e.g., Jim Haner,
Kimberly A.C. Wilson, & John B. O’Donnell, Cases
Crumble, Killers Go Free, Balt. Sun, Sept. 29, 2002, at 1A
(discussing a group of 83 defendants who had charges for
homicide dropped due to technical error and were later
rearrested for new crimes, “including 24 indicted in fresh
murders or attempted murders”).
There is also no stopping point to the state’s argument.
Under its logic, California could limit magazines to as few
as three bullets and not substantially burden Second
Amendment rights because, on average, 2.2 bullets are used
in every defensive encounter according to one study. 21 But
the threat to life does not occur in an average act in the
abstract; self-defense takes place in messy, unpredictable,
and extreme events. And what’s more, the state’s logic is in
no way limited to restricting the number of bullets in a
magazine. If it is not substantially burdensome to limit
magazines to ten rounds because the average defensive
21
At oral argument, counsel for the state conceded that there is a
threshold below which some capacity “does actually impose a severe
burden on the core right of self-defense” and would be “too low.” When
asked whether the state could permissibly restrict magazines to contain
zero bullets, allowing for one round in the firearm’s chamber, counsel
offered only a qualified concession: “I think that might be too low.
Hypothetically.”
50 DUNCAN V. BECERRA
shooter uses fewer bullets, then there is no reason it could
not impose a one-gun-per-person rule. In fact, there is a more
compelling case to impose a one-gun policy under the state’s
theory. After all, the study relied on by the state also shows
that an overwhelming majority of mass shootings involved
the use of multiple guns while a relative few definitively
involved LCMs. This cannot be right. We would never
uphold such a draconian limitation on other fundamental and
enumerated constitutional rights.
More broadly, the government’s argument misses the
mark because the Second Amendment limits the state’s
ability to second-guess the people’s choice of arms if it
imposes a substantial burden on the right to self-defense. As
discussed above, “substantial burden” cannot be a policy-
balancing inquiry because it implicates a fundamental
constitutional right. Banning the ownership of half the
magazines in America inflicts a substantial burden on the
Second Amendment.
In any event, it does not take a wild imagination to
conclude that citizens may need LCMs to defend hearth and
home. While Hollywood and the Bay Area symbolize
California to the world, the Golden State is in fact a much
more diverse and vibrant place, with people living in
sparsely populated rural counties, seemingly deserted desert
towns, and majestic mountain villages. In such places, the
closest law enforcement may be far, far away — and it may
take substantial time for the county sheriff to respond. And
it is no guarantee that the things that go bump in the night
come alone; indeed, burglars often ply their trade in groups
recognizing strength in numbers. See Carl E. Pope, Law
Enf’t Assistance Admin., U.S. Dep’t of Justice, 148223,
Crime-Specific Analysis: An Empirical Examination of
Burglary Offenses and Offender Characteristics 48 (1977)
DUNCAN V. BECERRA 51
(finding that 70% of burglars operate in groups); see also
Andy Hochstetler, Opportunities and Decisions:
Interactional Dynamics in Robbery and Burglary Groups,
39 Criminology 737, 746–56 (2001) (suggesting that
burgling in groups reduces anxiety of punishment). Law-
abiding citizens in these places may find security in a gun
that comes standard with an LCM.
Further, some people, especially in communities of
color, do not trust law enforcement and are less likely —
over 40% less likely, according to one study — to call 911
even during emergencies. See 163 Cong. Rec. S1257-58
(daily ed. Feb. 16, 2017) (statement of Sen. Kamala Harris)
(discussing a study showing that certain ethnic groups are
over 40% less likely to call 911 in an emergency); see also
Nik Theodore & Robert Habans, Policing Immigrant
Communities: Latino Perceptions of Police Involvement in
Immigration Enforcement, 42 J. of Ethnic and Migration
Stud. 970 (2016). These citizens may rely more on self-
defense than the “average” person in a home invasion or
some other emergency.
Law-abiding citizens trapped in high-crime areas where
the law enforcement is overtaxed may defend themselves in
their homes with a handgun outfitted with LCMs. And in
incidents of mass chaos and unrest, law enforcement simply
may be unable to protect the people, leaving them solely
responsible for their own safety in a seemingly Hobbesian
world. Finally, many citizens will not take any chances or
compromise their ability to defend themselves and their
52 DUNCAN V. BECERRA
families, and they may place their trust in guns equipped
with LCMs as a last resort. 22
Simply put, the guardrails found in our precedent that
limit the government’s intrusion on the Second Amendment
right do not exist in California’s near-categorical ban of
LCMs. It imposes a substantial burden on the people’s
Second Amendment rights. Strict scrutiny applies. See
Jackson, 746 F.3d at 961.
3. Decisions in other circuits are distinguishable.
The state attempts to seek refuge in the holdings of extra-
circuit authority. But those decisions present myriad
distinctions and are inapposite.
To begin, many of the other states’ laws are not as
sweeping as section 32310. For example, the Maryland state
law in the Fourth Circuit’s decision in Kolbe did not ban
possession of LCMs, but only barred the sale of them. See
849 F.3d at 122–23. Similarly, the Massachusetts state law
in Worman had a grandfather clause that allowed owners of
LCMs to keep them. See 922 F.3d at 31. As our court has
explained, laws that only ban the sale of arms or include a
grandfather clause impose a lesser burden. See Pena,
898 F.3d 969, 977–78 (grandfather clause was an
“important” reason for applying intermediate scrutiny); see
also Jackson, 746 F.3d 964–65 (intermediate scrutiny
applies when law only banned sale of hollow-point
ammunition and did not ban possession).
22
This, of course, does not mean that a citizen has a right to own
any weapon solely because it will aid her in self-defense. As Heller
pointed out, if a weapon is “dangerous and unusual,” then it does not fall
within the Second Amendment’s ambit. 554 U.S. at 627.
DUNCAN V. BECERRA 53
Moreover, almost all the other state laws banned both
LCMs and assault weapons. As a result, the decisions too
often conflated the analysis between the two. For example,
the D.C. Circuit in Heller v. District of Columbia
(“Heller II”) upheld the ban on assault weapons and LCMs
because the record reflected that assault weapons are not
typically used for self-defense, quoting a study that
“revolvers and semi-automatic pistols are together used
almost 80% of the time in incidents of self-defense with a
gun.” 670 F.3d 1244, 1262 (D.C. Cir. 2011) (emphasis
added). But “semi-automatic pistols” used for self-defense
— such as a Glock — routinely use LCMs, and, in fact, an
LCM is the standard magazine that comes equipped with the
gun. The analysis in many of these cases is thus rendered
unsound for our purposes today, as we only opine on the
validity of California’s LCM ban. 23
4. Fyock v. City of Sunnyvale does not obligate us
to apply intermediate scrutiny.
The state relies on this court’s decision in Fyock v. City
of Sunnyvale to maintain that intermediate scrutiny applies
here. But it hangs too heavy a hat on too small a hook. Fyock
does not hold that as a matter of law intermediate scrutiny
applies to LCM regulations.
In Fyock, we did not reach the merits of the case, but
instead were asked to review a preliminary injunction denial
relating to an LCM ban in the City of Sunnyvale based on a
23
We also note that most extra-circuit decisions were split with
dissents that strongly disagreed. See ANJRPC, 910 F.3d at 126–34
(Bibas, J., dissenting); Kolbe, 849 F.3d at 151–63 (Traxler, J., dissenting,
joined by Niemeyer, Shedd, and Agee); Friedman v. City of Highland
Park, 784 F.3d 406, 412–21 (7th Cir. 2015) (Manion, J., dissenting);
Heller II, 670 F.3d at 1269–96 (Kavanaugh, J., dissenting).
54 DUNCAN V. BECERRA
limited record. Critically, we acknowledged that we were
merely “consider[ing] whether the district court abused its
discretion by applying intermediate scrutiny.” Fyock,
779 F.3d at 998 (emphasis added). We held only that the
district court did not abuse its discretion by choosing
intermediate scrutiny based on the limited record before it
on a preliminary injunction appeal. Id. at 1001. The abuse of
discretion standard, of course, is highly deferential, and an
appellate court can reverse only if the trial court made “a
clear error of judgment.” DISH Network Corp. v. F.C.C.,
653 F.3d 771, 776 (9th Cir. 2011). The limited nature of that
opinion is self-evident; in its eight pages, it referenced the
abuse of discretion standard twelve times, and it repeatedly
emphasized the narrow scope of the ruling. See, e.g., Fyock,
779 F.3d at 995 (“our disposition of appeals from most
preliminary injunctions may provide little guidance as to the
appropriate disposition on the merits”); id. at 997 n.3 (noting
the “undeveloped record” before it and stating that the record
will be developed at the merits stage); id. at 1001 (“we
decline to substitute our own discretion for that of the district
court”).
It is perhaps understandable why our court in Fyock
ruled as it did in light of the deferential standard of review
and the unique facts presented in the case. Sunnyvale is a
small and affluent community. Its violent crime rate is less
than half of the statewide violent crime rate. Compare City
of Sunnyvale, Sunnyvale Uniform Crime Report 2018 (1.7
incidents per 1,000 people), with Cal. Dep’t of Justice,
Crime in California 2018, Criminal Justice Statistics Center
Publications at 1, 10 (4.4 incidents per 1,000 people). 24
24
Available at https://sunnyvale.ca.gov/civicax/filebank/blobdload.
aspx?BlobID= 22968 (last updated Apr. 22, 2020), and https://data-
DUNCAN V. BECERRA 55
Sunnyvale also boasts one of the largest combined public
safety departments in the United States. See Erika Towne,
Sunnyvale’s Department of Public Safety is One of the
Largest Combined Departments in the U.S., Santa Clara
Weekly (Apr. 10, 2019), at 9. We are not in Sunnyvale
anymore. 25
* * *
California Penal Code section 32310 substantially
burdens core Second Amendment rights. It bans LCMs that
come standard in guns commonly used for self-defense in
the home. Its scope is broad and indiscriminate. And it
provides no meaningful exceptions for law-abiding citizens.
Strict scrutiny applies under the reasoning of our prior
decisions: “A law that implicates the core of the Second
Amendment right and severely burdens that right warrants
strict scrutiny.” Silvester, 843 F.3d at 821, 827; see also
Pena, 898 F.3d at 977, 978–79; Jackson, 746 F.3d at 961,
964; Chovan, 735 F.3d at 1138.
openjustice.doj.ca.gov/sites/default/files/2019-07/Crime%20In%20CA
%202018%2020190701.pdf (last visited June 12, 2020).
25
The dissent suggests that we are engaging in policy-based
judgments by reciting these facts. But this is not so. We only mention
these considerations to provide some context in understanding why the
Fyock court may have ruled as it did, based on the highly deferential
standard of review that court applied while reviewing a preliminary
injunction with a limited record before it. Even Justice Breyer’s dissent
in Heller recognized that laws that are limited in geographic scope may
reduce burdens compared to restrictions that burden the broader public.
See Heller, 554 U.S. at 682 (voting to uphold DC’s law in part because
“[t]he law is tailored to the urban crime problem in that it is local in scope
and thus affects only a geographic area both limited in size and entirely
urban”) (Breyer, J., dissenting).
56 DUNCAN V. BECERRA
Apart from this circuit’s two-prong analysis for tiers of
scrutiny, our approach is in keeping with how we generally
address fundamental rights in our Constitution. As the
Supreme Court held, the Second Amendment is a
“fundamental” right that is “necessary to our system of
ordered liberty.” McDonald, 561 U.S. at 778. When the
government tries to limit the people’s fundamental rights,
the Supreme Court typically presumes that strict scrutiny
applies. See, e.g., Glucksberg, 521 U.S. at 721 (strict
scrutiny applies to “fundamental” liberty interests); Poe v.
Ullman, 367 U.S. 497, 548 (1961) (Harlan, J., dissenting)
(laws affecting “fundamental aspect[s] of liberty” are
“subjected to strict scrutiny”) (internal quotations
omitted). 26 And it makes sense to do so. If the government
imposes a substantial limitation on the most sacred and
fundamental rights enumerated in our Constitution, then
such a law restricting the people’s liberty should face the
highest tier of scrutiny.
D. California Penal Code section 32310 does not
survive strict scrutiny review.
Strict scrutiny is the “most rigorous and exacting
standard of constitutional review,” and requires that a state
law be “narrowly tailored to achieve a compelling interest.”
Miller v. Johnson, 515 U.S. 900, 920 (1995); see also Kolbe,
849 F.3d at 133. “[I]f there are other, reasonable ways to
achieve [a compelling state purpose] with a lesser burden on
constitutionally protected activity, a State may not choose
the way of greater interference. If it acts at all, it must choose
26
We recognize that the Supreme Court, for example, applies
intermediate scrutiny for time, place, or manner restrictions on First
Amendment rights, but as noted above, section II.C.2.ii, the restriction
here is not a time, place, or manner regulation.
DUNCAN V. BECERRA 57
‘less drastic means.’” Attorney General of New York v. Soto-
Lopez, 476 U.S. 898, 909–10 (1986) (citing Dunn v.
Blumstein, 405 U.S. 330, 343 (1972)) (alterations original).
1. The state interests advanced here are compelling.
In the court below, the state advanced four interests
underlying California Penal Code section 32321: protecting
citizens from gun violence, protecting law enforcement from
gun violence, protecting public safety, and preventing crime.
The district court found these interests to be “important.” On
appeal, the Attorney General does not explicitly enumerate
these four interests but does stylize them as “interests in
preventing and mitigating gun violence, particularly public
mass shootings and the murder of law enforcement
personnel.” The state claims that these interests are
compelling. We agree. 27 See Schall v. Martin, 467 U.S. 253,
264 (1984) (“The ‘legitimate and compelling state interest’
in protecting the community from crime cannot be
doubted.”).
2. California Penal Code section 32310 is not
narrowly tailored to achieve the compelling state
interests it purports to serve.
California Penal Code section 32310 cannot withstand
strict scrutiny analysis because the state’s chosen method —
a statewide blanket ban on possession everywhere and for
nearly everyone — is not the least restrictive means of
achieving the compelling interests.
27
We remind future litigants that it is still necessary to show that the
stated interest is compelling and may not simply be presumed.
58 DUNCAN V. BECERRA
As discussed above, section 32310 provides few
meaningful exceptions for the class of persons whose
fundamental rights to self-defense are burdened. The scope
of section 32310 likewise dooms its validity. Section 32310
applies statewide. It necessarily covers areas from the most
affluent to the least. It prohibits possession by citizens who
may be in the greatest need of self-defense like those in rural
areas or places with high crime rates and limited police
resources. It applies to nearly everyone. It is indiscriminating
in its prohibition. Nor is the law limited to firearms that are
not commonly used for self-defense. These are not features
of a statute upheld by courts under the least restrictive means
standard. 28
E. Even if intermediate scrutiny were to apply,
California Penal Code section 32310 would still
fail.
As made plain by our earlier discussion, intermediate
scrutiny is the wrong standard to apply. But even if we were
to apply it today, California Penal Code section 32310 would
28
See, e.g., Holt v. Hobbs, 574 U.S. 352, 364–65 (2015) (restriction
preventing beard growth for religious practitioners to half of an inch not
the least restrictive means of furthering prison safety and security);
United States v. Alvarez, 567 U.S. 709, 729 (2012) (Stolen Valor Act
held unconstitutional because other less speech-restrictive means were
available to the government to combat fraudulent Medal of Honor
recipient claims); United States v. Playboy Entm’t Grp., 529 U.S. 803,
816–27 (2000) (statute regulating the hours for sexually oriented cable
channel programming to shield children from pornography held
unconstitutional because other plausible less restrictive means were
readily available); Reno v. ACLU, 521 U.S. 844, 874–75 (1997) (statute
that criminalized “indecent” or “patently offensive” speech on the
internet was unconstitutional because it was “an unnecessarily broad
suppression” of free speech rights and therefore not the least restrictive
means).
DUNCAN V. BECERRA 59
still fail. While that provision doubtless purports to serve
important state interests, the means chosen by the state are
not substantially related to serving those interests.
1. Intermediate scrutiny as traditionally understood
has bite.
Courts apply intermediate scrutiny in a variety of
contexts. Broadly speaking, to survive intermediate scrutiny
a statute “must be substantially related to an important
governmental objective.” Clark v. Jeter, 486 U.S. 456, 461
(1988).
Recently, the Supreme Court emphasized the potent
nature of intermediate scrutiny. In Packingham v. North
Carolina, the Court held that to survive intermediate
scrutiny “a law must be ‘narrowly tailored to serve a
significant governmental interest.” 137 S. Ct. 1730, 1736
(2017) (quoting McCullen v. Coakley, 573 U.S. 464, 486
(2014)).
While the precise contours of intermediate scrutiny may
vary, this much is certain: It has bite. It is a demanding test.
While its application is neither fatal nor feeble, it still
requires a reviewing court to scrutinize a challenged law
with a healthy dose of skepticism. Indeed, the law must
address “harms” that “are real” in a “material” way.
Edenfield v. Fane, 507 U.S. 761, 771 (1993). At its core,
intermediate scrutiny is a searching inquiry.
2. Appellate courts have not settled on a particular
intermediate scrutiny formulation for Second
Amendment challenges.
This circuit has used seemingly varying formulations of
intermediate scrutiny in the Second Amendment context.
60 DUNCAN V. BECERRA
Chovan provides that intermediate scrutiny requires “(1) the
government’s stated objective be significant, substantial, or
important; and (2) a reasonable fit between the challenged
regulation and the asserted objective.” 735 F.3d at 1139. But
in Silvester, we stated that gun regulations need only
promote a “substantial government interest that would be
achieved less effectively absent the regulation.” 843 F.3d
at 829. We cited both standards in Pena, though that decision
appears to interpret the latter as a means to assess the fit
prong of the former. 898 F.3d at 979.
Other decisions within our court and elsewhere have
used language that suggests varying intensities of “bite.”
Some applications of intermediate scrutiny are severe. See,
e.g., Jackson, 746 F.3d at 966 (whether the challenged
restriction is “substantially related to the important
government interest of reducing firearm-related deaths and
injuries”); Heller II, 670 F.3d at 1258 (requiring “a tight ‘fit’
between the [regulation] and an important or substantial
government interest, a fit ‘that employs not necessarily the
least restrictive means but . . . a means narrowly tailored to
achieve the desired objective’”). Others appear less
stringent. See, e.g., Worman, 922 F.3d at 38–39 (“there must
be a ‘reasonable fit’ between the restrictions imposed by the
law and the government’s valid objectives, ‘such that the law
does not burden more conduct than is reasonably
necessary’”); ANJRPC, 910 F.3d at 119 (same). A few fall
somewhere in between. See, e.g., Kolbe, 849 F.3d at 139
(restriction passes intermediate scrutiny if “reasonably
adapted to a substantial government interest”) (citation
omitted).
DUNCAN V. BECERRA 61
3. Some courts have applied a diluted form of
intermediate scrutiny that approximates rational
basis, which Heller forbids.
Whatever its precise contours might be, intermediate
scrutiny cannot approximate the deference of rational basis
review. Heller forecloses any such notion. See Heller,
554 U.S. at 628 n.27. Yet the state asserts that the deferential
standard presented by the case of Turner Broadcasting
System, Inc. v. F.C.C. applies here. But reliance on this line
of cases is misplaced. While some courts have analyzed
Second Amendment regulations under the highly deferential
Turner standard, it has been inconsistently applied and
ultimately remains inapplicable.
Turner deference stems from two Supreme Court cases
that addressed certain rules imposed on cable television
companies. See Turner Broadcasting System, Inc. v. F.C.C.,
512 U.S. 622 (1994) (“Turner I”); Turner Broadcasting
System, Inc. v. F.C.C., 520 U.S. 180 (1997) (“Turner II”).
These cases establish a general rule that where “policy
disagreements exist in the form of conflicting legislative
‘evidence,’” courts “‘owe [the legislature’s] findings
deference in part because the institution is far better
equipped than the judiciary to amass and evaluate the vast
amounts of data bearing upon legislative questions.’” Pena,
898 F.3d at 979 (quoting Turner II, 520 U.S. at 195). A few
courts have imported this deference to analyze Second
Amendment claims. See, e.g., Kolbe, 849 F.3d at 140
(applying Turner deference to LCM restrictions); NYSRPA,
804 F.3d at 261 (same); Drake v. Filko, 724 F.3d 426, 436–
37 (3d Cir. 2013) (same, for public carriage restrictions). But
courts in our own circuit have been inconsistent in its
application. In Pena, we applied Turner deference. See 898
F.3d at 979–80. But in Silvester, Fyock, Jackson, and
62 DUNCAN V. BECERRA
Chovan we did not. See generally 843 F.3d at 817–29; 779
F.3d at 994–1001; 746 F.3d at 957–70; 735 F.3d at 1129–42.
The latter opinions get it right. Turner is an inappropriate
standard for a simple reason: That line of cases addressed a
very different set of laws and circumstances. There, cable
television operators challenged the constitutionality of must-
carry provisions of the Cable Television Consumer
Protection and Competition Act of 1992. See Turner I,
512 U.S. at 626–27. As the Court explained in Turner II, the
deferential principle outlined in Turner I applies mainly in
“cases . . . involving congressional judgments concerning
regulatory schemes of inherent complexity and assessments
about the likely interaction of industries undergoing rapid
economic and technological change. Though different in
degree, the deference to Congress is in one respect akin to
deference owed to administrative agencies because of their
expertise.” Turner II, 520 U.S. at 196 (emphasis added).
Not so here. While the issue of gun violence is important
and emotionally charged, it does not involve highly technical
or rapidly changing issues requiring such deference. The
state cannot infringe on the people’s Second Amendment
right, and then ask the courts to defer to its alleged
“expertise” once its laws are challenged. Put another way,
intermediate scrutiny cannot mean Chevron-like deference.
Indeed, this very argument advanced by the state was
roundly rejected by the majority in Heller. Despite Justice
Breyer’s dissenting opinion explicitly advancing Turner
deference, see 554 U.S. at 690–91, 704–05, the majority in
Heller did not once mention Turner and its progeny. To
apply Turner today would amount to an abdication of our
judicial independence and we refuse to do so. And in any
event, the Turner I Court emphasized that deference does
“not foreclose our independent judgment of the facts bearing
DUNCAN V. BECERRA 63
on an issue of constitutional law.” Id. at 666 (citation
omitted).
4. California Penal Code section 32310 would still
fail to pass constitutional muster under an
intermediate scrutiny analysis.
Even if we were to apply intermediate scrutiny,
California Penal Code section 32310 would still fail. While
the interests expressed by the state no doubt qualify as
“important,” Chovan, 735 F.3d at 1139, the means chosen to
advance those interests are not substantially related to their
service.
Section 32310 fails intermediate scrutiny for many of the
same reasons it fails strict scrutiny. Even with the greater
latitude offered by this less demanding standard, section
32310’s fit is excessive and sloppy. In his dissent in Heller,
Justice Breyer would have upheld D.C.’s law under his
interest-balancing test because the law was “tailored to the
urban crime problem [] that is local in scope and thus affects
only a geographic area both limited in size and entirely
urban.” Heller, 554 U.S. at 682 (Breyer, J., dissenting). Not
so here. The statute operates as a blanket ban on all types of
LCMs everywhere in California for almost everyone. It
applies to rural and urban areas, in places with low crime
rates and high crime rates, areas where law enforcement
response times may be significant, to those who may have
high degrees of proficiency in their use for self-defense, and
to vulnerable groups who are in the greatest need of self-
defense. The law also prohibits possession outright. And it
applies to all firearms, including handguns that are the
“quintessential self-defense weapon.” Heller, 554 U.S.
at 629.
64 DUNCAN V. BECERRA
Section 32310’s failure to incorporate a grandfather
clause is another red flag. We do not write on a blank slate
on this matter. This court has already held that grandfather
clauses are “important[]” in reducing burdens generated by
a restriction. Pena, 898 F.3d at 977. It follows that
grandfather clauses are also important to assess fit. Without
such a clause, law-abiding citizens who legally possessed
LCMs before enactment are deprived of the right to use those
arms for lawful ends. These law-abiding citizens could have
owned LCM for decades, and perhaps even used them for
self-defense in the past. But none of that matters under
California law. They must turn them over — or face a year
in jail. Based on the record before us, there is no apparent
justification or support for the lack of a grandfather
exception. See New York State Rifle & Pistol Ass’n v. City of
New York, 140 S. Ct. 1525, 1543 (2020) (Alito, J., dissenting
from denial of certiorari) (“a court engaged in any serious
form of scrutiny would . . . question[] the absence of
evidence”).
The state speculates that a complete prohibition is
necessary to avoid legally owned LCMs from falling into the
wrong hands. But the flaws of that argument are obvious.
The state could ban virtually anything if the test is merely
whether something causes social ills when someone other
than its lawful owner misuses it. Adopting such a radical
position would give the government carte blanche to restrict
the people’s liberties under the guise of protecting them.
While the harms that California attempts to address are
no doubt real, section 32310 does not address them in a
“material” way. Edenfield, 507 U.S. at 770–71. The data
relied on by the state in defense of section 32310 is, as the
trial court found, “remarkably thin.” California primarily
cites two unofficial surveys to support dispossessing law-
DUNCAN V. BECERRA 65
abiding Californians of millions of magazines. But the
district court pointed out that these surveys hardly show that
section 32310 is effective — and in any event, they cannot
save that provision. One of the surveys documents that in 14
of the 17 mass shootings in California, assailants brought
multiple weapons. 29 This undercuts the state’s claim, as
noted by the district court, that LCMs shoulder much of the
blame for casualties because the more weapons brought to a
shooting incident, the greater the capacity for casualties.
But more than that, the district court pointed out that only
three of these incidents definitively involved LCMs. And for
each, the assailant brought high capacity magazines that
were illegally smuggled into California. In other words,
section 32310 would have had little effect on the outcomes
in these tragic events. Many incidents do not appear to have
involved LCMs, and for those that did, the LCMs appear to
have been smuggled into the state. See Scott v. Harris,
550 U.S. 372, 380–81 (2007) (“When opposing parties tell
two different stories, one of which is blatantly contradicted
by the record, so that no reasonable jury could believe it, a
court should not adopt that version of the facts for purposes
of ruling on a motion for summary judgment.”).
29
Our dissenting colleague notes that we analyze the fit of section
32310 using statewide statistics, yet we look to national statistics to
determine common ownership. Our colleague’s point is well taken. But
we must necessarily look to national statistics in that analysis because,
as discussed earlier, LCM prohibitions in California have been operative
for years. As the Seventh Circuit agrees, “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 owned.” Friedman v. City of
Highland Park, 784 F.3d 406, 409 (7th Cir. 2015). When it comes to fit
however, we look to state statistics to determine how the challenged law
operates in practice within the jurisdiction of its operation.
66 DUNCAN V. BECERRA
Put simply, California fails to show a reasonable fit
between Penal Code section 32310’s sweeping restrictions
and its asserted interests. Were we to apply intermediate
scrutiny, section 32310 would still fail.
CONCLUSION
Let us be clear: We are keenly aware of the perils of gun
violence. The heartbreak and devastation caused by
criminals wielding guns cannot be overstated. And we also
understand the importance of allowing state governments the
ability to fashion solutions to curb gun violence. We have
thus held that California can, for example, impose waiting
periods, Silvester, 843 F.3d at 829, require microstamping of
guns, Pena, 898 F.3d at 986, and forbid felons, the mentally
ill, or misdemeanants convicted of domestic violence from
owning firearms, Chovan, 735 F.3d at 1141.
We also want to make clear that our decision today does
not address issues not before us. We do not opine on bans on
so-called “assault weapons,” nor do we speculate about the
legitimacy of bans on magazines holding far larger quantities
of ammunition. Instead, we only address California’s ban on
LCMs as it appears before us. We understand the purpose in
passing this law. But even the laudable goal of reducing gun
violence must comply with the Constitution. California’s
near-categorical ban of LCMs infringes on the fundamental
right to self-defense. It criminalizes the possession of half of
all magazines in America today. It makes unlawful
magazines that are commonly used in handguns by law-
abiding citizens for self-defense. And it substantially
burdens the core right of self-defense guaranteed to the
people under the Second Amendment. It cannot stand.
We AFFIRM the district court’s grant of summary
judgment for plaintiffs-appellees.
DUNCAN V. BECERRA 67
LYNN, District Judge, dissenting:
The majority opinion conflicts with this Circuit’s
precedent in Fyock v. Sunnyvale, 779 F.3d 991 (9th Cir.
2015), and with decisions in every other Circuit to address
the Second Amendment issue presented here. I am willing
to at least assume that the law at issue implicates conduct
protected by the Second Amendment, but I part ways with
the majority regarding the appropriate level of scrutiny and
its application in this case. I would reverse the district
court’s grant of summary judgment. I respectfully dissent.
ANALYSIS
California was not the first city or state to ban the
possession of large capacity magazines (“LCMs”), and this
panel is not the first (even within this Circuit) to address the
constitutionality of such bans. A panel of this Court
previously affirmed a district court’s refusal to preliminarily
enjoin the City of Sunnyvale’s ban on LCMs, and six of our
sister Circuits have held that various LCM restrictions are
constitutional. See Fyock, 779 F.3d 991; see also Heller v.
District of Columbia (Heller II), 670 F.3d 1244 (D.C. Cir.
2011); Worman v. Healey, 922 F.3d 26 (1st Cir. 2019); New
York State Rifle & Pistol Ass’n, Inc. v. Cuomo, 804 F.3d 242(2d Cir. 2015) (“NYSRPA”); Ass’n of N.J. Rifle & Pistol
Clubs, Inc. v. Att’y Gen. N.J., 910 F.3d 106 (3d Cir. 2018);
Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) (en banc);
Friedman v. City of Highland Park, Ill., 784 F.3d 406 (7th
Cir. 2015). Thus, this panel is not writing on a blank slate.
I would reach the same result as the Fyock panel and our
sister Circuits and hold that California’s ban on LCMs does
not violate the Second Amendment.
To determine whether a challenged law violates the
Second Amendment, this Court “employs a two-prong test:
68 DUNCAN V. BECERRA
(1) the court ‘asks whether the challenged law burdens
conduct protected by the Second Amendment’; and (2) if so,
what level of scrutiny should be applied.” Fyock, 779 F.3d
at 996 (quoting United States v. Chovan, 735 F.3d 1127,
1136 (9th Cir. 2013)).
I. Whether § 32310 Affects Second Amendment-
Protected Conduct
California argues that § 32310 does not burden conduct
protected by the Second Amendment. Rejecting those
arguments, the majority holds that it does. I assume this
holding to be correct. As this Court previously held, “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.”
Fyock, 779 F.3d at 998. Additionally, there is no serious
dispute that millions of LCMs are in circulation. See Maj.
Op. at 12. Given my determination below that § 32310
withstands the applicable level of scrutiny, however, I find
it unnecessary to further analyze whether it burdens
protected conduct. I therefore assume, without deciding,
that the challenged law burdens Second Amendment rights.
See Pena v. Lindley, 898 F.3d 969, 976 (9th Cir. 2018) (“We
assume without deciding that the challenged UHA
provisions burden conduct protected by the Second
Amendment because we conclude that the statute is
constitutional irrespective of that determination.”); Bauer v.
Becerra, 858 F.3d 1216, 1221 (9th Cir. 2017) (“[F]or
purposes of this analysis, we assume, without deciding, that
the challenged fee burdens conduct falling within the scope
of the Second Amendment.”); Silvester v. Harris, 843 F.3d
816, 826–27 (9th Cir. 2016) (“We assume, without deciding,
that the regulation is within the scope of the Amendment and
DUNCAN V. BECERRA 69
is not the type of regulation that must be considered
presumptively valid.”). 1
II. The Appropriate Level of Scrutiny
The next question is which level of scrutiny applies. In
making that determination, “the court must consider (1) how
closely the law comes to the core of the Second Amendment
right; and (2) how severely, if at all, the law burdens that
right.” Fyock, 779 F.3d at 998 (citing Chovan, 735 F.3d
at 1138). “Intermediate scrutiny is appropriate if the
regulation at issue does not implicate the core Second
Amendment right or does not place a substantial burden on
that right.” Id. at 998–99 (citing Jackson v. City & Cty. of
S.F., 746 F.3d 953, 964 (9th Cir. 2014)).
As to the first prong, I acknowledge that § 32310, like
the law at issue in Fyock, “may implicate the core of the
Second Amendment” regarding self-defense in the home.
Id. at 999. The majority holds that LCMs may be used “for
the core lawful purpose of self-defense.” District of
Columbia v. Heller, 554 U.S. 570, 629 (2008). I need not
1
This approach also is consistent with that used by several Circuits
in deciding similar cases. See, e.g., Heller II, 670 F.3d at 1261 (declining
to resolve whether laws banning LCMs and assault weapons implicate
the Second Amendment, because “even assuming they do impinge upon
the right protected by the Second Amendment, we think intermediate
scrutiny is the appropriate standard of review and the prohibitions
survive that standard”); Worman, 922 F.3d at 30 (“We assume, without
deciding, that the proscribed weapons have some degree of protection
under the Second Amendment.”); NYSRPA, 804 F.3d at 257 (“[W]e
proceed on the assumption that these laws ban weapons protected by the
Second Amendment.”); Ass’n of N.J. Rifle & Pistol Clubs, 910 F.3d at
117 (“We will nonetheless assume without deciding that LCMs are
typically possessed by law-abiding citizens for lawful purposes and that
they are entitled to Second Amendment protection.”).
70 DUNCAN V. BECERRA
resolve that question, however, because I cannot agree that
§ 32310 is a substantial burden on that right. 2 Section 32310
“restricts possession of only a subset of magazines that are
over a certain capacity. It does not restrict the possession of
magazines in general such that it would render any lawfully
possessed firearms inoperable, nor does it restrict the
number of magazines that an individual may possess.”
Fyock, 779 F.3d at 999. Just as “[a] ban on the sale of certain
types of ammunition does not prevent the use of handguns
or other weapons in self-defense,” and “leaves open
alternative channels for self-defense in the home,” Jackson,
746 F.3d at 968, 3 § 32310 does not place a substantial burden
on core Second Amendment rights because it does not
prevent the use of handguns or other weapons in self-
defense.
2
Again, this approach is consistent with that taken by other courts,
who have declined to resolve whether bans on LCMs implicate core
Second Amendment rights, because even if they do, the burden is not
substantial. See, e.g., Heller II, 670 F.3d at 1262 (“Although we cannot
be confident the prohibitions impinge at all upon the core right protected
by the Second Amendment, we are reasonably certain the prohibitions
do not impose a substantial burden upon that right.”); Worman, 922 F.3d
at 38 (finding that an LCM ban “arguably implicates the core Second
Amendment right to self-defense in the home but places only a modest
burden on that right”).
3
I disagree that Jackson “implied that strict scrutiny likely applies
if a law completely bans the possession of a certain class of
ammunition.” Maj. Op. at 44. While the opinion mentions that the law
at issue in that case banned only the sale, not use or possession, of certain
ammunition, it also mentioned other factors relevant to its decision,
including that other types of bullets could be sold. Jackson, 746 F.3d
at 968. At bottom, Jackson asked whether the regulation left “open
alternative channels for self-defense” generally, id. at 961 (emphasis
added), not alternative channels for possessing the same weapon
regulated by the law being examined.
DUNCAN V. BECERRA 71
The majority writes that the existence of alternatives is
irrelevant under Heller. See Maj. Op. at 40–41. Unlike the
law at issue in Heller, however—and contrary to the
majority’s characterization of California’s law—§ 32310
does not ban an entire “class” of arms. “LCMs” are not a
separate “class” of weapons; they are simply larger
magazines. See, e.g., Ass’n of N.J. Rifle & Pistol Clubs,
910 F.3d at 117 (“[T]he Act . . . does not categorically ban a
class of firearms. The ban applies only to magazines capable
of holding more than ten rounds and thus restricts
‘possession of only a subset of magazines that are over a
certain capacity.’” (quoting Fyock, 779 F.3d at 999)). In
fact, the claim that § 32310 is a “categorical[] bar[],” Maj.
Op. at 33, is circular, because “it amounts to a suggestion
that whatever group of weapons a regulation prohibits may
be deemed a ‘class.’” Worman, 922 F.3d at 32 n.2.
Understood in that way, “virtually any regulation could be
considered an ‘absolute prohibition’ of a class of weapons.”
Id. It makes no difference that the weapons at issue are
“popular.” Just like “being unable to purchase a subset of
semiautomatic weapons”—even some of the “most popular
models”—“does not significantly burden the right to self-
defense in the home,” Pena, 898 F.3d at 978, so too does
being unable to purchase a subset of magazines not
significantly burden Second Amendment rights.
In short, although the availability of a different “class”
of firearms (like a rifle instead of a handgun) might be “no
answer” to a Second Amendment challenge, Heller,
554 U.S. at 629, alternatives in the same “class” are relevant
to the burden analysis. See, e.g., Jackson, 746 F.3d at 961
(“[F]irearm 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.”). The difference between using a handgun versus a
72 DUNCAN V. BECERRA
rifle for self-defense, for example, is much more significant
than the difference between using a magazine that holds
eleven rounds versus a magazine that holds ten rounds. 4 For
this reason, the prohibition on LCMs is more analogous to a
restriction on how someone exercises their Second
Amendment rights, by restricting the number of bullets a
person may shoot from one firearm without reloading.
“[L]aws which regulate only the ‘manner in which persons
may exercise their Second Amendment rights’ are less
burdensome than those which bar firearm possession
completely.” Silvester, 843 F.3d at 827.
Because I would find that § 32310 does not substantially
burden the core Second Amendment right, I would apply
intermediate scrutiny. This conclusion is consistent with
that reached by all of our sister Circuits that chose a level of
scrutiny in LCM cases. See Heller II, 670 F.3d at 1262(applying intermediate scrutiny and analogizing to First
Amendment time, place, and manner doctrine, because “the
prohibition of . . . large-capacity magazines does not
effectively disarm individuals or substantially affect their
ability to defend themselves.”); Worman, 922 F.3d at 37
(applying intermediate scrutiny and reasoning that an LCM
ban does not heavily burden the core right of self-defense in
the home, in part because the law prohibited only
“magazines of a particular capacity”); NYSRPA, 804 F.3d
at 259 (“No ‘substantial burden’ exists—and hence
heightened scrutiny is not triggered—‘if adequate
alternatives remain for law-abiding citizens to acquire a
firearm for self-defense.’” (quoting United States v.
Decastro, 682 F.3d 160, 168 (2d Cir. 2012)); Ass’n of N.J.
4
For similar reasons, § 32310 is not analogous to a ban on
Mapplethorpe in favor of Monet or Matisse, or the majority’s other
examples. See Maj. Op. at 47–48.
DUNCAN V. BECERRA 73
Rifle & Pistol Clubs, 910 F.3d at 118 (applying intermediate
scrutiny because an LCM ban “does not severely burden, and
in fact respects, the core of the Second Amendment right.”). 5
The majority splits with our sister Circuits, claiming that
those decisions are distinguishable because the laws at issue
in those cases were “not as sweeping” as § 32310 as they
banned only sale (not possession) or included grandfather
clauses, or because the decisions “too often conflated the
analysis between” a ban on assault weapons and a ban on
LCMs. Maj. Op. at 52–53. Those distinctions rest on a
flimsy firmament. For example, all but one of the laws at
issue banned possession, not just sale. See Heller II,
670 F.3d at 1249; Worman, 922 F.3d at 30; NYSRPA,
804 F.3d at 247; Ass’n of N.J. Rifle & Pistol Clubs, 910 F.3d
at 110; Friedman, 784 F.3d at 407. 6 Only two mention a
grandfather clause. See Worman, 922 F.3d at 31; NYSPRA,
804 F.3d at 251 n.19. None of the cases suggested that these
allegedly distinguishing features made a critical difference
to the courts’ analyses. In fact, NYSPRA involved two laws,
one of which included a grandfather clause, the other of
which did not, but the Second Circuit held that both laws
were constitutional. See 804 F.3d at 249, 251 n.19. While
an exception for possession or grandfathered weapons might
5
Kolbe applied intermediate scrutiny in the alternative, after holding
that the Second Amendment does not protect LCMs at all. 849 F.3d
at 139 (“[A]ssuming the Second Amendment protects the FSA-banned
assault weapons and large-capacity magazines, the FSA is subject to the
intermediate scrutiny standard of review.”). The Seventh Circuit’s
decision in Friedman is the only LCM ban case in which a court of
appeals did not apply intermediate scrutiny, but the court in that case did
not enunciate any level of scrutiny at all. See 784 F.3d 406.
6
The only exception is the Maryland law at issue in Kolbe, 849 F.3d
at 122, that the majority cites as an example.
74 DUNCAN V. BECERRA
be relevant to the burden analysis, we have never held that
such exceptions are required. 7
As for the majority’s comment that decisions from other
Circuits conflate assault weapon and LCM bans, I read those
cases differently. Association of New Jersey Rifle & Pistol
Clubs, 910 F.3d 106, involved only an LCM ban, so it could
not have improperly “conflated” the analysis. Additionally,
even the cases involving multiple types of restrictions
separately analyze the distinct bans. In fact, in Fyock, we
referred to Heller II as a “well-reasoned opinion.” 779 F.3d
at 999. Yet today, the majority effectively ignores Heller II.
In short, I think the majority’s distinctions constitute too thin
a reed on which to support a conflict with our sister Circuits.
The majority also departs from our Circuit’s decision in
Fyock, reasoning that Fyock was decided on a different
record, using a different standard of review. 8 Maj. Op.
at 53–55. The relevant undisputed facts here, however, are
identical to the facts at issue in Fyock. Specifically, the laws
at issue “restrict[] possession of only a subset of magazines
that are over a certain capacity.” Fyock, 779 F.3d at 999.
7
It would be surprising if a person’s Second Amendment rights
turned on whether a person had the foresight to purchase a later-banned
firearm before a law was enacted. Similarly, a ban on sale but not
possession makes a practical difference only if nearby jurisdictions allow
sale, meaning that under the majority’s analysis, the constitutionality of
a law in one jurisdiction would turn on laws enacted in neighboring
jurisdictions.
8
Ironically, the majority’s attempt to distinguish Fyock on the
ground of its “unique facts” based on Sunnyvale’s size, affluency, and
crime rate is exactly the type of policy judgment in which even the
majority acknowledges courts should not engage. Moreover, the Fyock
decision did not find these facts important enough to mention, so I cannot
conclude that they are relevant distinguishing factors.
DUNCAN V. BECERRA 75
The abuse of discretion standard gave the district court
leeway in finding those facts, but if the district court had
applied the wrong legal standard—such as an incorrect level
of scrutiny—“[a]n error of law necessarily constitutes an
abuse of discretion.” Akopyan v. Barnhart, 296 F.3d 852,
856 (9th Cir. 2002); see also Cooter & Gell v. Hartmarx
Corp., 496 U.S. 384, 405 (1990). In other words, if
intermediate scrutiny were the wrong legal standard for
cases presenting these facts, applying that level of scrutiny
necessarily would have been an abuse of discretion. Fyock
held, however, that intermediate scrutiny was the correct
standard. I would hold that Fyock requires this panel to
apply intermediate scrutiny in this case as well.
III. Applying Intermediate Scrutiny
Having determined that § 32310 is subject to
intermediate scrutiny, I also part ways with the majority’s
alternative holding that § 32310 does not satisfy that
standard. Again, the majority’s decision conflicts with
Fyock and all six of our sister Circuits to have addressed the
issue.
“Intermediate scrutiny requires (1) a significant,
substantial, or important government objective, and (2) a
‘reasonable fit’ between the challenged law and the asserted
objective.” Pena, 898 F.3d at 979 (quoting Jackson,
746 F.3d at 965). While the challenged law must “promote[]
a ‘substantial government interest that would be achieved
less effectively absent the regulation,’” the test does not
require that the government choose “the ‘least restrictive
means’ of achieving [its] interest.” Id. (quoting Fyock,
779 F.3d at 1000).
I agree with the majority that California has satisfied the
first part of the test by showing a significant, substantial, or
76 DUNCAN V. BECERRA
important government objective. Maj. Op. at 57, 59, 63. I
disagree, however, that § 32310 is not a “reasonable fit” for
achieving that objective, particularly when we are reviewing
a summary judgment decision. See Hayes v. Cty. of San
Diego, 736 F.3d 1223, 1232 (9th Cir. 2013) (“[W]e view the
evidence in the light most favorable to Appellant in
reviewing summary judgment . . . .”).
“When considering California’s justifications for the
statute, we do not impose an ‘unnecessarily rigid burden of
proof,’ and we allow California to rely on any material
‘reasonably believed to be relevant’ to substantiate its
interests in gun safety and crime prevention.” Pena,
898 F.3d at 979 (quoting Mahoney v. Sessions, 871 F.3d 873,
881 (9th Cir. 2017)). The “analysis of whether there is a
‘reasonable fit between the government’s stated objective
and the regulation’ considers ‘the legislative history of the
enactment as well as studies in the record or cited in pertinent
case law.’” Id. (quoting Fyock, 779 F.3d at 1000) (internal
quotation marks omitted). We must “giv[e] the [state] ‘a
reasonable opportunity to experiment with solutions to
admittedly serious problems.’” Jackson, 746 F.3d at 966
(quoting City of Renton v. Playtime Theatres, Inc., 475 U.S.
41, 52 (1986)).
Like Sunnyvale in Fyock, California “presented
evidence that 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.”
779 F.3d at 1000; Excerpts of Record (“ER”) 357 (“[T]he
use of LCMs in massacres resulted in a 59 percent increase
in fatalities per incident.”); ER 405 (“[T]he available
evidence suggests that gun attacks with semiautomatics—
including both assault weapons and guns equipped with
LCMs—tend to result in more shots fired, more persons
DUNCAN V. BECERRA 77
wounded, and more wounds inflicted per victim than do
attacks with other firearms.”); ER 756 (“[I]t is common for
offenders to fire more than ten rounds when using a gun with
a large-capacity magazine in mass shootings.”); ER 756–57
(“[C]asualties were higher in the mass shootings that
involved large-capacity magazine guns than other mass
shootings. In particular, we found an average number of
fatalities or injuries of 31 per mass shooting with a large-
capacity magazine versus 9 for those without.”); ER 972.
It “also presented evidence that large-capacity
magazines are disproportionately used in mass shootings as
well as crimes against law enforcement, and it presented
studies showing that a reduction in the number of large-
capacity magazines in circulation may decrease the use of
such magazines in gun crimes.” Fyock, 779 F.3d at 1000;
ER 358 (“[S]ince 1968, LCMs 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—
establishing a relationship between LCMs and the deadliest
gun massacres.”); ER 405 (“It also appears that guns with
LCMs have been used disproportionately in murders of
police.”); ER 418 (“Consistent with prior research, we also
found that LCM firearms are more heavily represented
among guns used in murders of police and mass murders.”);
ER 756 (“We found that large-capacity magazines were used
in the majority of mass shootings since 1982 . . . .”). “[I]t
strains credulity to argue that the fit between the Act and the
asserted governmental interest is unreasonable.” Worman,
922 F.3d at 40. To the extent that the district court weighed
this evidence against contrary evidence, it was inappropriate
to do so in the context of a motion for summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)
(“[A]t the summary judgment stage the judge’s function is
78 DUNCAN V. BECERRA
not himself to weigh the evidence and determine the truth of
the matter . . . .”).
This evidence is not based on pure speculation.
California offered evidence based on different data sources,
from multiple experts. California also pointed to evidence
that the federal ban on assault weapons and LCMs was
beginning to have an effect—and likely would have had a
larger effect in the absence of a grandfather clause—when it
expired in 2004. See, e.g., ER 415 (opining that the federal
ban “may have had a more substantial impact on the supply
of LCMs to criminal users by the time it expired in 2004”);
ER 419 (discussing an “upward trend in criminal use of
LCM firearms” after the 2004 expiration of the LCM ban,
suggesting that the federal ban may have had an effect).
California’s decision to pass a similar law finds support in
the past federal experience.
The majority faults § 32310 for being “a blanket ban on
all types of LCMs everywhere in California for almost
everyone.” Maj. Op. at 63. Actually, California offered
evidence to explain why the law’s scope is a “reasonable fit,”
notwithstanding its breadth. For example, “the majority of
guns used in mass shootings were obtained legally.”
ER 296. Contrary to the majority’s suggestion, this
argument would not justify “ban[ning] virtually anything if
the test is merely whether something causes social ills when
someone other than its lawful owner misuses it.” Maj. Op.
at 64. It is merely one factor to consider in determining
whether there is a “reasonable fit” between the state’s goals
and the scope of the law.
Importantly, while § 32310 prohibits certain types of
magazines, it leaves many other types of magazines (and
firearms) available to law-abiding citizens to use for self-
defense. Cf. Jackson, 746 F.3d at 968 (“There is no evidence
DUNCAN V. BECERRA 79
in the record indicating that ordinary bullets are ineffective
for self-defense.”). Just like the ban on particular types of
ammunition in Jackson was “a reasonable fit for achieving
its objective of reducing the lethality of ammunition because
it targets only that class of bullet which exacerbates lethal
firearm-related injuries,” id. at 969, § 32310 is a reasonable
fit for achieving the state’s objective because it targets only
the types of magazines most likely to present increased risk.
That § 32310 will not prevent all mass shootings, 9 or that
it is not the least restrictive means of doing so, does not
render the law unconstitutional. See Pena, 898 F.3d at 979
(explaining that intermediate scrutiny does not require that
the government choose “the ‘least restrictive means’ of
achieving [its] interest” (quoting Fyock, 779 F.3d at 1000)).
This is not to suggest that intermediate scrutiny does not
have bite. I agree with the majority that it does. 10 At the
same time, the Court should not improperly transform
intermediate scrutiny into strict scrutiny. “Our role is not to
re-litigate a policy disagreement that the California
legislature already settled, and we lack the means to resolve
that dispute. Fortunately, that is not our task.” Pena, 898
F.3d at 980. Because “California’s evidence ‘fairly
9
If the majority is going to rely on nationwide statistics about the
prevalence of LCMs, it stands to reason that it should also use nationwide
statistics about the use of LCMs in mass shootings. However, its
intermediate scrutiny analysis mentions only 17 shootings in California.
See Maj. Op. at 65.
10
It is unnecessary to decide whether “Turner deference” is relevant
to the question before this Court, because the outcome is the same
regardless. But to the extent that the majority identifies any confusion
about the applicability of Turner deference or the meaning of
intermediate scrutiny in this Court’s precedents, I respectfully suggest
that is reason for the Circuit to consider this case en banc.
80 DUNCAN V. BECERRA
support[ed]’ its conclusions,” id. (quoting Jackson, 746 F.3d
at 969), I would hold that § 32310 satisfies intermediate
scrutiny.
This conclusion is consistent with Fyock and all our
sister Circuits to resolve this question. In every case, the
court has held that the LCM restrictions at issue satisfy
intermediate scrutiny. See Heller II, 670 F.3d at 1264 (“We
conclude the District has carried its burden of showing a
substantial relationship between the prohibition of . . .
magazines holding more than ten rounds and the objectives
of protecting police officers and controlling crime.”);
Worman, 922 F.3d at 40 (holding that a ban on LCMs “does
not impermissibly intrude upon [Second Amendment]
right[s] because it withstands intermediate scrutiny”);
NYSRPA, 804 F.3d at 264 (holding that a ban on LCMs
“survive[s] intermediate scrutiny”); Ass’n of N.J. Rifle &
Pistol Clubs, 910 F.3d at 122 (“[T]he Act survives
intermediate scrutiny, and like our sister circuits, we hold
that laws restricting magazine capacity to ten rounds of
ammunition do not violate the Second Amendment.”);
Kolbe, 849 F.3d at 140 (“Being satisfied that there is
substantial evidence indicating that the FSA’s prohibitions
against assault weapons and large-capacity magazines will
advance Maryland’s goals, we conclude that the FSA
survives intermediate scrutiny.”). 11 The record in this case
is nearly identical to the records in those other cases, with
11
The majority calls Kolbe an “outlier” that has been rejected by
other Circuits, Maj. Op. at 26, but only with respect to its holding that
LCMs are not protected by the Second Amendment. Kolbe’s alternative
holding—that, assuming LCMs are protected, intermediate scrutiny
applies and was satisfied—is consistent with every other Circuit to
answer that question, as described in the text above.
DUNCAN V. BECERRA 81
many of the same experts and studies. I would not depart
from those well-reasoned opinions.
IV. Conclusion
Because I would hold that intermediate scrutiny applies
and § 32310 satisfies that standard, I would reverse the
district court’s grant of summary judgment in Plaintiffs’
favor. 12 I respectfully dissent.
12
Given the majority’s opinion on the Second Amendment issue, as
a result of which it did not reach the Takings Clause issue, I express no
opinion on that issue.