California Tries to Save Gun Magazine Confiscation Scheme

Fed appeals court deemed magazine ban unconstitutional

Getty Images
September 1, 2020

California Democrats are launching a longshot legal maneuver to protect a gun-control law that a federal appeals court declared unconstitutional.

Attorney General Xavier Becerra (D.) requested an "en banc" review of a three-judge panel that ruled the state's ban on the possession of any magazine holding more than 10 rounds, even those Californians previously bought legally, ran afoul of the Second Amendment. Such a review would convene a randomly-chosen 11-member panel of Ninth Circuit judges. Chuck Michel, president of the California Rifle & Pistol Association, said gun-rights advocates are willing to take the case all the way to the Supreme Court if Becerra succeeds in his appeal.

"This case may present the opportunity to set things straight on the broader issue of what the standard of review test should be when considering any Second Amendment challenge," he told the Washington Free Beacon. "The Supreme Court seems inclined to do away with the complicated subjective tests that many courts have wrongly applied in Second Amendment cases, in favor of a clearer, more objective 'originalist' approach that considers the text, history, and tradition of a law to determine what infringements might be tolerated."

Becerra said in a statement that he disagreed with the initial ruling and will "continue to use every tool we have to defend the constitutionality of our laws."

In 2016, a Ninth Circuit "en banc" panel overturned a similar three-judge panel's decision in Peruta v. San Diego, which declared California's restrictive gun-carry law unconstitutional. President Donald Trump has since appointed 10 new judges to the circuit, which may make the new panel more sympathetic toward gun-rights arguments. If the panel rules in favor of the plaintiffs, the outcome could have a significant impact on the future of magazine bans or mass confiscation orders.

Gun-rights advocates have been disappointed by the Supreme Court's reluctance to take Second Amendment cases in recent years. While the High Court reaffirmed that modern devices like stun guns are covered by Second Amendment protections in the unanimous Caetano v. Massachusetts in 2016, it has denied numerous challenges to state gun restrictions.

The confiscation measure is not being enforced due to the rulings, but the ban on sales of magazines capable of holding more than ten rounds remains in place as the case is being deliberated.