U.S. appeals court upholds California’s ban on large-capacity firearms magazines

Closeup of an assault weapon.
A custom-made semiautomatic hunting rifle with a high-capacity detachable magazine is displayed at TDS Guns in Rocklin, Calif.
(Rich Pedroncelli / Associated Press)

A federal appeals court decided Tuesday to uphold California’s ban on large-capacity ammunition magazines in a ruling that is likely to lead to the court’s approval of the state’s ban on assault weapons.

In an en banc decision, the U.S. 9th Circuit Court of Appeals ruled 7-4 that a state law that limits the size of magazines — ammunition feeding devices for firearms — does not significantly interfere with the right to self-defense. The court noted that there was no evidence that a person has been unable to defend a home because of lack of a large-capacity magazine.

During the past 50 years, the court said, large-capacity magazines have been used in about three-quarters of mass shootings that resulted in 10 or more deaths, and in 100% of massacres with 20 or more deaths.


“The ban on legal possession of large-capacity magazines reasonably supports California’s effort to reduce the devastating damage wrought by mass shootings,” Judge Susan P. Graber, a Clinton appointee, wrote for the court.

Two other gun control cases have been put on hold pending a decision in the magazine case. Tuesday’s decision indicates that California’s ban on assault weapons, which a lower court had struck down, is also likely to be ruled constitutional.

The four Republican appointees on the panel dissented — one of them accusing the majority of anti-gun bias — and a gun rights group said it would ask the U.S. Supreme Court to overturn the ruling.

A majority of justices on the Supreme Court has expressed support for limiting gun regulations, and the court is expected next year to strike down laws in California and New York that deny permits for most people to carry concealed weapons in public.

California’s large-capacity magazine ban, approved by voters in 2016, limits possession to magazines that hold 10 or fewer rounds of ammunition. A district judge and a divided three-judge 9th Circuit panel struck down the law, which Tuesday’s ruling revived.

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“Large-capacity magazines allow a shooter to fire more bullets from a single firearm uninterrupted,” Graber wrote, “and a murderer’s pause to reload or switch weapons allows potential victims and law enforcement officers to flee or to confront the attacker.”


The court noted that Washington, D.C., and eight other states have also imposed restrictions on large-capacity magazines and that six other federal courts of appeals have upheld the laws.

“The ban on large-capacity magazines has the sole practical effect of requiring shooters to pause for a few seconds after firing 10 bullets, to reload or to replace the spent magazine,” Graber wrote. “Nothing in the record suggests that the restriction imposes any more than a minimal burden on the 2nd Amendment right to keep and bear arms.”

U.S. District Judge Roger T. Benitez overturned both the magazine ban and the bar on assault weapons. In the assault weapons case, Benitez likened an AR-15 semiautomatic rifle to a Swiss Army knife and called it “good for both home and battle.”

Benitez, who was appointed by President George W. Bush, said the assault weapons ban unconstitutionally infringed on the rights of California gun owners and “has had no effect” on curtailing mass shootings.

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In a dissent Tuesday, 9th Circuit Judge Patrick J. Bumatay, a Trump appointee, said the banned magazines were “commonly owned by millions of law-abiding citizens for lawful purposes.”

“These magazines are neither dangerous and unusual, nor are they subject to longstanding regulatory measures,” Butamay, a Trump appointee, wrote.


Judge Lawrence VanDyke, another Trump appointee, wrote separately in a dissent that accused his colleagues of infusing their personal views into the law.

“The majority of our court distrusts gun owners and thinks the 2nd Amendment is a vestigial organ of their living constitution,” VanDyke wrote.

VanDyke’s dissent, which no other judge signed, was unusual. Instead of focusing solely on the law, Van Dyke questioned the other judges’ neutrality.

VanDyke said that mass shootings were indeed “horrific” but also statistically rare. Large-scale magazines may be needed for self-defense when someone is attacked by a group of assailants, he said. The majority’s “views drive this circuit’s case law, ignoring the original meaning of the 2nd Amendment and fully exploiting the discretion inherent in the Supreme Court’s cases,” Van Dyke wrote.

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Judge Andrew D. Hurwitz, an Obama appointee, objected.

VanDyke’s dissent was as inappropriate and factually unfounded as “a statement by the majority that today’s dissenters are willing to rewrite the Constitution because of their personal infatuation with firearms,” Hurwitz wrote.

As to VanDyke’s contention that mass shootings were rare, Hurwitz shot back: “The people of California should not be precluded from attempting to prevent mass murders simply because they don’t occur regularly enough in the eyes of an unelected Article III judge.”

Chuck Michel, president of the California Rifle & Pistol Assn., said his group would ask the 9th Circuit to put a hold on the decision while the association seeks review in the U.S. Supreme Court.


The ban on possession of large-scale magazines had been stayed pending the outcome of the case and should continue to be blocked until the Supreme Court decides whether to weigh in, he said.

Michel predicted the Supreme Court would change the legal ground rules for evaluating gun laws and said the 9th Circuit should have delayed a ruling until after the high court’s decision next year on permits for carrying concealed weapons.

Supporters of gun regulations praised the 9th Circuit decision.

“Today’s ruling is the latest recognition from the federal courts that reasonable gun safety laws are entirely consistent with the 2nd Amendment,” said Eric Tirschwell, executive director of Everytown Law, which litigates for a gun safety group. “This is great news for Californians and an important contribution to the centuries of legal precedent backing life-saving gun laws. “