Ninth Circuit Heard Oral Argument In NRA-Backed Challenge To California’s Magazine Ban

[Charlie T Waite]

Today, an 11-judge en-banc panel of the Ninth Circuit Court of Appeals heard oral arguments in Duncan v. Bonta, the NRA-backed challenge to California’s ban on magazines capable of holding more than 10 rounds of ammo. The case was argued by the Kirkland & Ellis law firm.

One of the highlights was an exchange between judge Lawrence VanDyke and the attorney representing California. California argued that banning “large capacity magazines” was necessary to reduce gun crimes where more than 10 rounds of ammo were used. Those crimes are relatively rare. But at the same time, California argued that the ban is trivial because law-abiding citizens rarely use 10 rounds of ammo in self-defense situations. In other words, California argued that rarely occurring events justified its authority to ban the magazines, but the ban was trivial because law-abiding citizens rarely need 10 rounds of ammo to defend themselves. Judge VanDyke then accused California’s counsel of making a “heads we win, tails you lose” argument by “using rarity in two different ways.”  

Another highlight was when the Plaintiffs’ attorney rattled off facts about the historical prevalence of “large capacity magazines.” She noted that the Winchester Model1866 rifle had a 17-round capacity. It was a very common rifle on the market the same year that the Fourteenth Amendment was ratified, thereby incorporating the Second Amendment against the states. The fact that the Winchester 1866 and other firearms that held more than 10 rounds of ammunition were so prevalent at the time serves as a strong indication that those arms are protected by the Second Amendment. 

The argument can be viewed on the Ninth Circuit’s YouTube channel.