A three-judge panel for 9th Circuit Court today slapped down California’s ban on “large capacity magazines” by declaring the ban unconstitutional. The court held that:

  • magazines are “protected arms” under the Second Amendment
  • so-called “large capacity magazines” are “commonly owned” and not unusual
  • the ban “substantially burdened” the right of self defense
  • the state’s ban was not the least restrictive means to achieve its interests

Judge Kenneth Lee, a Trump appointee, also noted in his opinion the racist origin of gun control (pg. 34-38), writing:

“Perhaps the most poignant and persuasive reminder of the fundamental right to self-defense rests in the denial of that right to Black Americans during tragic chapters of our country’s history. After the founding, Southern states often severely limited, or outright prohibited, firearm possession by slaves, freedmen, and others.12 The judicial branch, too, played a role in denying this fundamental right of self- defense to Blacks. In the infamous Dred Scott v. Sanford decision, Chief Justice Taney recited a parade of horribles if Black Americans were to be considered citizens: it would give Blacks the “right to enter every other State whenever they pleased,” to exercise “full liberty of speech,” to “hold public meetings upon political affairs,” and “to keep and carry arms wherever they went.” 60 U.S. 393, 417 (1857).
It did not get much better even after a bloody war that tore the country apart. Post-Civil War state legislation and the Black Codes in the South deprived newly freed slaves of their Second Amendment rights. McDonald, 561 U.S. at 771. Meanwhile, armed bands of ex-Confederates roamed the countryside forcibly disarming and terrorizing African- Americans. See id. at 772–73. The Radical Republicans in Congress fought back against these “systematic efforts . . . to disarm” Black Americans by enacting the Freedmen’s Bureau Act of 1866 and the Civil Rights Acts of 1866, both of which guaranteed all persons the right of self-defense. Id. at 771–74.
But laws promising protection and equality for African- Americans rang hollow because, in the post-Reconstruction era, the Ku Klux Klan and other marauding bands of terrorists slaughtered thousands of unarmed Black Americans. See generally Allen W. Trelease, White Terror: The Ku Klux Klan Conspiracy and Southern Reconstruction (1971); see also Robert J. Kaczorowski, Federal Enforcement of Civil Rights During the First Reconstruction, 23 Fordham Urb. L. J. 155, 156–57 (1995). Not surprisingly, Black Americans embraced their right to self-defense, understanding that protections offered by the state may be promising in theory but fatal in fact. Ida B. Wells — the crusading journalist who co-founded the NAACP — wrote that “a Winchester rifle should have a place of honor in every black home, and it should be used for that protection which the law refuses to give.” Ida B. Wells, Southern Horrors and Other Writings: The Anti- Lynching Campaign of Ida B. Wells, 1892–1900 70 (Jacqueline Jones Royster ed., 1997). Martin Luther King, Jr., despite his non-violent approach to protest, owned numerous firearms and hired armed men to guard his house during the Montgomery Bus Boycott in 1956. See Annelieke Dirks, Between Threat and Reality: The National Association for the Advancement of Colored People and the Emergence of Armed Self-Defense in Clarksdale and Natchez, Mississippi, 1960–1965, 1 J. for the Study of Radicalism 71, 73 (2007). One civil rights activist who visited Dr. King’s home during that time described the house as an “arsenal.” Id.

Stories of other civil rights activists exercising their right to self-defense are legion. While the NAACP espoused nonviolence, many of its members carried firearms for self- protection, and for good reason. See id. at 71. Aaron Henry, then a branch president of the NAACP, would openly display his firearm after his house was firebombed in 1963. See id. When NAACP activist Hartman Turnbow tried to register to vote, nightriders lit his house on fire with Molotov cocktails. See id. at 72. Turnbow recounted that he grabbed his rifle, escaped the burning building, and exchanged gunfire with two white men waiting outside. See id. The men fled once Turnbow started shooting back. See id. Ida B. Wells documented that “[o]f the many inhuman outrages of [that] year, the only case where the proposed lynching did not occur, was where the men armed themselves . . . and prevented it. The only times an Afro-American who was assaulted [and] got away has been when he had a gun and used it in self-defense.” Ida B. Wells, supra.
During the crucible of the civil rights movement, Black American veterans from World War II and the Korean War founded the Deacons for Defense and Justice to protect Black people from racial violence at the hands of the Ku Klux Klan. See generally Lance Hill, The Deacons for Defense: Armed Resistance and the Civil Rights Movement (Univ. of N.C. Press ed., 2004). In 1966, the small Louisiana town of Bogalusa integrated the local junior high school to the ire of the local Klan. See id. at 1. Armed with guns, this roving band of racist terrorists arrived at the junior high school. See id. Their intentions were obvious: In that small town, two African-Americans, one of whom was a deputy sheriff, had been recently killed by white people. See id. But this time around, the Klan encountered something unexpected at the entrance of the school: The Deacons for Defense and Justice — armed with revolvers and rifles, and rooted in righteousness and resolution. Outgunned by the Deacons, the Klan fled. See id. As one member of the Deacons noted afterwards, “From that day forward, we didn’t have too many more problems.” Id. at 2.

These terrible events did not occur long ago in faraway lands. They occurred on American soil, some less than sixty years ago. And tragically, they are not unique. Indeed, Black Americans’ experience throughout the civil rights movement was just the latest iteration in an ongoing struggle to defend hearth and home from those who wished them ill.


Our country’s history has shown that communities of color have a particularly compelling interest in exercising their Second Amendment rights. The Second Amendment provides one last line of defense for people of color when the state cannot — or will not — step in to protect them. This remains true today across all communities of color.”

Chuck Michel and the California Rifle and Pistol Association led the fight on this:

“Initially won through a positive ruling by the United States District Court in San Diego, the state quickly appealed — and Judge Benitez was forced to stay his ruling to allow the purchase of magazines holding more than 10 rounds of ammunition until the appeal was made to the Ninth Circuit. CRPA’s legal team quickly answered the State’s appeal and presented oral arguments.

‘Today’s decision in Duncan v. Becerra is a major victory for the Second Amendment, both in California and across the country,’ said Chuck Michel, president and General Counsel of the California Rifle & Pistol Association.

In its case, CRPA demonstrated how prohibiting law-abiding citizens from manufacturing, obtaining, selling, transferring, or even possessing standard-issue magazines for firearms violates the constitution.

‘After years of fighting, the Court decided in favor of our plaintiffs’ challenge against the state’s ban on standard capacity magazines that hold more than 10 rounds,’ said Michel.

The court noted that the state’s efforts to ban these magazines does not pass the strict scrutiny or intermediate scrutiny tests and is a heavy burden on the Second Amendment rights of Californians.

‘This is a huge win specifically for the right to possess these valuable self-defense tools. But more generally, this case may present the Supreme Court with an opportunity to set things straight on the underlying issue of what the standard of review test should be when considering any Second Amendment challenge,” Michel said. “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,’ he concluded.”

It’s not over yet, though. California’s Attorney General Xavier Becerra is reviewing the decision and could very well request an en banc review of the case (which, if the 9th circuit voted to do, would mean the case is reheard by an 11 judge panel). If you’re wondering whether or not you can now buy “large capacity magazines” if you live in California, read this from CRPA:

“Today’s opinion, however, should not be read as immediately ending the ban on acquiring magazines over 10 rounds. While possession of these magazines remains legal under the injunction issued by the district court in 2017, it is unclear whether today’s decision lifts the district court’s 2019 order staying the injunction that would have halted the enforcement of the manufacture and acquisition ban. According to the terms of that order, it remains in effect “pending final resolution” of the Duncan appeal. And because the state of California may petition for an 11-judge en banc panel to rehear the case or file a petition directly to the Supreme Court of the United States, it may be months before this appeal is finally resolved. Put simply, take caution! It is unclear whether California residents may begin to purchase magazines over 10 rounds yet.”

Via AP:

“Gun owners cannot immediately rush to buy high-capacity magazines because a stay issued by the lower court judge remains in place.

But Becerra did not say if the state would seek a further delay of Friday’s ruling to prevent an immediate buying spree if the lower court judge ends that restriction. Gun groups estimated that more than a million high-capacity ammunition magazines may have legally flooded into California during a one-week window before the judge stayed his ruling three years ago.

Becerra also did not say if he would ask a larger 11-judge appellate panel to reconsider the ruling by the three judges, or if he would appeal to the U.S. Supreme Court.”

The fight isn’t over, but that doesn’t mean today’s victory should be any less celebrated — and it also highlights the importance of voting to protect the Second Amendment.