Today the Ninth Circuit Court of Appeals upheld a federal district count injunction against a California law to confiscate firearms magazines that hold over 10 rounds. The Ninth Circuit's 2-1 opinion is here, and the dissent is here. My analysis of the 2017 district court opinion is here.

Background: In 2016, California voters enacted an initiative that, among other things, dispossessed magazine owners of their property. Possession of firearms magazines over 10 rounds was forbidden. Current owners of magazines required to turm them over to the government, or to a gun store, or destroy the magazines, or move them out of state. The ban was to take effect on July 1, 2017.

In late June 2017, Federal District Judge Roger Benitez (S.D. Calif.) issued a preliminary injunction against the confiscation. He found that the plaintiffs had established a liklihood that they would succeed on the Second Amendment and Fifth Amendment claims (the latter involving taking of property without just compensation). The case is Duncan v. Becerra, since Xavier Becerra is Attorney General of California. The case is being litigated by Michel Associates, the leading firearms law firm in California.

Issue on appeal: In an appeal of a preliminary injunction, the appellate court reviews the district court's injunction for "abuse of discretion." The appellate judges "determine only whether the district court correctly distilled the applicable rules of law and exercised permissible discretion in applying those rules to the facts at hand." The 2-1 appellate panel held that the district court had not abused its discretion, and so the preliminary injunction was upheld.

The majority opinion was written by Judge N.R. Smith, who was nominated to the 9th Circuit in 2005 by President Bush, and confirmed in 2007. Judge Deborarh A. Batts joined the opinion. She was appointed to the Southern District of New York in 1994 by President Clinton, is now on senior status, and was sitting on the panel by designation. The dissent was written by Judge John Clifford Wallace; he was appointed in 1972 by President Nixon, and has been on senior status since 1996.

Rationale: For the majority, this seemed to be an easy case. The district judge had correctly found that prohibiting magazines over 10 rounds implicates the Second Amendment right, as other courts have done. (Indeed, as nearly every court to consider the issue has done.)

The next question was whether the district court had applied the correct legal test. The district court had applied one test based on the straightforward language of Heller (which prohibits bans on arms that "in common use" and "typically used by law-abiding citizens for lawful purposes"). The district court also applied a means-end balancing test, namely intermediate scrutiny. The result was the same under either test.

According to the Ninth Circuit, the district court had correctly followed the rules of Second Amendment intermediate scrutiny created by the Ninth Circuit. Because magazine bans are not traditional in the U.S., the government had the burden of proving that the ban was lawful.

The district court finding that the government had failed to carry its burden of proof was not an abuse of discretion. "The district court's review of the evidence included numerous judgment calls regarding the quality, type, and reliability of the evidence, as well as repeated credibility determinations." The district court had concluded that magazine confiscation was not a good fit for any of the government's proferred interests.

On appeal, "California articulates no actual error made by the district court, but, rather, multiple instances where it disagrees with the district court's conclusion or analysis regarding certain pieces of evidence. This is insufficient to establish that the district court's findings of fact and its application of the legal standard to those facts were 'illogical, implausible, or without support in inferences that may be drawn from facts in the record.'"

In a 2015 case, a different three-judge panel of the Ninth Circuit had upheld a district court's decision not to grant a preliminary injunction against a similar confiscation law enacted by a Bay Area town. Fyock v. Sunnyvale, 779 F.3d 991 (9th Cir. 2015). Although the evidence in the Fyock and Duncan cases have some differences, the key point was that neither decision by the district judges in those cases as an "abuse of discretion. Rather, the decision to grant or not grant the preliminary injunction was based on the district judges' reasonable discretion in weighing the evidence before them. When a preliminary injunction is being appealed, the only job for the appellate judges is see if there is an abuse of discretion; the appellate judges are not supposed to re-weigh the evidence. The fact that two district judges saw similar evidence and came to different conclusions does not mean that either judge is guilty of abuse of discretion.

The dissent: The majority wrote that Judge Wallace's dissent was improperly reweighing the evidence. For example, Judge Wallace wrote that the confiscation law could be upheld based on some statistics supplied by one of Michael Bloomberg's organizations. Yet the district court had specifically explained why those statistics lacked reliability and credibility: they were "incomplete studies from unreliable sources upon which experts base speculative explanation and predictions."

Like the Second Circuit in another magazine ban case, Judge Wallace seemed to favor a very weak standard of intermediate scrutiny review for Second Amendment cases: as long as the government could provide some evidence, that was sufficient–notwithstanding the other side's evidence showed that the government evidence is flawed or unpersuasive. (My analysis of the Second Circuit case is here.)

Fifth Amendment takings: The majority found no abuse of discretion in the district court's decision on the Fifth Amendment Takings Clause. The statute obviously deprived the plaintiffs of their property. The fact that the State was exercising its police power did not grant the State an exemption from the Takings Clause.

The dissent pointed out that the plaintiffs could still retain their magazines by moving them out of state, so there was no physical taking. The majority pointed out that even if the plaintiffs could retain ownership, the new statute forbade them to retain possession.

Next steps: While the preliminary injunction appeal was in progress, District Judge Benitez has kept the case moving forward. Judge Wallace wrote that "The district court is to be commended for following our constant admonition not to delay trial preparation awaiting an interim ruling on the preliminary injunction….The district court has properly proceeded with deliberate speed towards a trial, which will allow it to decide this case with a full and complete record and a new review. … I credit the district court for ensuring the case did not stall awaiting disposition of this appeal."

Attorney General Becerra has the option of petitioning the full Ninth Circuit for an en banc rehearing. Such petitions typically take at least several months. By the time an en banc court was assembled, with time for pro/con briefing and oral argument, the preliminary injunction issue might be moot, since the district court by then would have issued a final ruling. But Ninth Circuit en banc can be very hostile to the Second Amendment, as Justices Thomas and Gorsuch observed in dissenting from denial of certiorari in a Ninth Circuit en banc case nullifying the right to bear arms. So a speedy en banc reversal of today's decision is not out of the question.

My brief: Joseph Greenlee and I submitted an amicus brief to the Ninth Circuit. The brief argued that the correct standard of review is the one from Heller: bans on arms "in common use" that are "typically used by law-abiding citizens for lawful purposes" are categorically unconstitutional. The brief provided data showing that magazines over 10 rounds meet this standard, as the standard has been elucidated by various lower courts.

Conversely, Heller allows bans on arms that are "dangerous and unusual." Magazines over 10 rounds (especially, handgun magazines of 11-21) are the opposite of unusual. They are the standard magazines for many common firearms. If the California law had been limited only to non-standard magazines (e.g., a 35-round aftermarket magazine for handguns), the analysis might be different.

Nor are all magazines over 10 rounds "dangerous," especially when compared to handguns. Handguns are about 1/3 of the gun supply, but they are used in about 2/3 of gun crime. In contrast, so-called "large" magazines are used in mass shootings (the only types of crimes for which the Attorney General attempted to justify the ban) in the same proportion that they exist in the overall supply of magazines (about half).

Heller did not assert that handguns are in fact superior to long guns for self-defense; rather, Heller was based on the fact that handguns are often the chosen means for self-defense by law-abiding citizens. Likewise, magazines over 10 rounds are commonly chosen for self-defense, and the Second Amendment precludes the government from second-guessing common self-defense choices. There are good reasons for law-abiding citizens to have such magazines, because the defender's reserve ammunition capacity can be decisive in whether or not criminal attackers prevail.