FPC to Supreme Court in Duncan brief: Force ‘bitter medicine’ upon defiant lower courts or Second Amendment is meaningless

[Charlie T Waite]

Firearms Policy Coalition (FPC) and FPC Action Foundation (FPCAF) announced the filing of an important brief asking the U.S. Supreme Court to grant certiorari in Duncan v. Bonta (formerly Duncan v. Becerra), a case challenging California’s ban on magazines capable of holding more than 10 rounds of ammunition. The brief is available at FPCLaw.org.

In 2020, a three-judge panel of the Ninth Circuit Court of Appeals struck down the ban, holding that it violates the Second Amendment. The decision was based in part on the Supreme Court’s ruling in Heller that held that arms “in common use” and “typically possessed by law-abiding citizens for lawful purposes” cannot be banned. The court then decided to rehear the case before an 11-judge en banc panel. The en-banc Ninth Circuit overturned the panel’s ruling and upheld California’s prohibition despite the fact that magazines with greater than 10 round capacities are some of the most common arms in the nation—over 100 million are owned nationwide. 

Beyond seeking review of California’s unconstitutional ban on protected arms in Duncan, FPC’s brief argues for the nation’s highest court to address the incorrigibility of the lower lower courts. FPC’s brief spotlights how courts across the country continue to rule with utter disregard for the Supreme Court’s prior Second Amendment decisions, including Heller, McDonald, and others. Specifically, FPC’s brief cites critical analysis from Ninth Circuit Judge Lawrence VanDyke’s dissenting opinion in Duncan:  

When a significant number of lower courts determine that their own views trump Supreme Court precedent, they threaten the ideal that courts are engaged in the law rather than politics. Indeed, a dissenting judge in this case alleged that “[t]he majority of our court distrusts gun owners” and argued that it “is simply not plausible” to suggest that “our judges’ personal views about the Second Amendment and guns have not affected our jurisprudence.” Duncan, 19 F.4th at 1159, 1166 (VanDyke, J., dissenting). 

As Judge VanDyke observed, “[u]ntil the Supreme Court forces our court to do something different . . . the Second Amendment will remain essentially an ink blot in this circuit.” Duncan, 19 F.4th at 1167 (VanDyke, J., dissenting).

“The Supreme Court has previously addressed arms prohibitions on four occasions, yet the lower courts continue to ignore its precedents and apply their own tests,” said FPCAF’s Director of Constitutional Studies, Joseph Greenlee, who authored the brief. “We urge the Court to use this opportunity to send a message to the lower courts while also holding California’s magazine confiscation unconstitutional.”   

FPC and FPCAF were joined on the brief by the John Locke Foundation, Independence Institute, and William Wiese, the lead plaintiff in the first legal challenge to California’s magazine ban, the FPC-led Wiese v. Bonta. Several attorneys worked on the brief, including David Kopel of the Independence Institute, Jon Guze of the John Locke Foundation, George Lee of Seiler Epstein LLP, and George Mocsary, who is a professor at the University of Wyoming Law School and an FPC Adjunct Scholar. 

Individuals who would like to join the FPC Grassroots Army or donate to support pro-Second Amendment programs to protect and restore the right to keep and bear arms should visit JoinFPC.org. For more on FPC’s lawsuits and other pro-Second Amendment initiatives, visit FPCLaw.org and follow FPC on Instagram, Twitter, Facebook, YouTube.