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Second Amendment
9th Circuit dissenters criticize court’s ‘blank check’ for gun restrictions, including ban on high-capacity gun magazines
Adam Winkler, a professor at the University of California at Los Angeles School of Law: “There are good arguments to be made, but the court didn’t offer them.” Image from Shutterstock.
An en banc federal appeals court ruled 7-4 this week that California may enforce its ban on high-capacity gun magazines pending appeal.
The 9th U.S. Circuit Court of Appeals at San Francisco temporarily allowed enforcement of the law in an Oct. 10 decision, report Reuters and the Los Angeles Times via How Appealing. The law bans gun magazines with more than 10 rounds.
The majority said the state “makes strong arguments” that the law comports with the Second Amendment under the 2022 U.S. Supreme Court decision in New York State Rifle & Pistol Association Inc. v. Bruen.
The Bruen decision held that the Second Amendment protects a person’s right to carry a handgun for self-defense outside the home. The decision said gun regulations are constitutional when “consistent with the nation’s historical tradition of firearm regulation.”
The 9th Circuit dissenters said the ban on high-capacity gun magazines fails under the Bruen framework. The majority did not examine historical tradition and instead “resorts to simply citing various nonbinding district court decisions,” the dissent said.
“If the protection of the people’s fundamental rights wasn’t such a serious matter, our court’s attitude toward the Second Amendment would be laughably absurd,” said the dissent written by Judge Patrick J. Bumatay. “For years, this court has shot down every Second Amendment challenge to a state regulation of firearms—effectively granting a blank check for governments to restrict firearms in any way they pleased.”
Bumatay’s dissent was joined by three other judges. One of them, Judge Ryan D. Nelson, wrote separately to criticize the court’s decision to allow the same en banc panel that heard a prior appeal to hear the new one in a “comeback case.”
“No other circuit court would allow a prior en banc panel to hear a comeback case without an intervening
majority vote of the active judges,” Nelson wrote.
Bumatay and Nelson are appointees of former President Donald Trump. The majority opinion does not list an author.
The Los Angeles Times spoke with Adam Winkler, a professor at the University of California at Los Angeles School of Law, who said it appeared that the majority didn’t make “any real effort to grapple” with Bruen issues.
“There are good arguments to be made, but the court didn’t offer them,” Winkler said.
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