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FOR PUBLICATION

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

V

IRGINIA

D

UNCAN

;

R

ICHARD

L

EWIS

;

P

ATRICK

L

OVETTE

;

D

AVID

M

ARGUGLIO

;

C

HRISTOPHER

W

ADDELL

;

C

ALIFORNIA

R

IFLE

&

P

ISTOL

A

SSOCIATION

,

I

NC

., a California corporation,

Plaintiffs-Appellees,

v. R

OB

B

ONTA

, in his official capacity as Attorney General of the State of California,

Defendant-Appellant.

No. 19-55376 D.C. No. 3:17-cv-01017-BEN-JLB OPINION Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding Argued and Submitted En Banc June 22, 2021 Pasadena, California Filed November 30, 2021 Before: Sidney R. Thomas, Chief Judge, and Susan P. Graber, Richard A. Paez, Marsha S. Berzon, Sandra S. Ikuta, Mary H. Murguia, Paul J. Watford, Andrew D. Hurwitz, Ryan D. Nelson, Patrick J. Bumatay and Lawrence VanDyke, Circuit Judges.

Case: 19-55376, 11/30/2021, ID: 12300758, DktEntry: 191-1, Page 1 of 170

2 D

UNCAN V

.

B

ONTA

Opinion by Judge Graber; Concurrence by Judge Graber; Concurrence by Judge Berzon; Concurrence by Judge Hurwitz; Dissent by Judge Bumatay; Dissent by Judge VanDyke

SUMMARY

*

Second Amendment

The en banc court reversed the district court’s summary judgment and remanded for entry of judgment in favor of Defendant Rob Bonta, Attorney General for the State of California, in an action raising a facial challenge to California Penal Code section 32310, which prohibits, with certain exceptions, possession of large-capacity magazines, defined as those that can hold more than ten rounds of ammunition. California law allows owners of large-capacity magazines to modify them to accept ten rounds or fewer. Owners also may sell their magazines to firearm dealers or remove them from the state. And the law provides several exceptions to the ban on large-capacity magazines, including possession by active or retired law enforcement officers, security guards for armored vehicles, and holders of special weapons permits.

*

This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.


D

UNCAN V

.

B

ONTA

3 Plaintiffs, who include persons who previously acquired large-capacity magazines lawfully, bring a facial challenge to California Penal Code section 32310. They argue that the statute violates the Second Amendment, the Takings Clause, and the Due Process Clause. The court applied a two-step framework to review the Second Amendment challenge, asking first whether the challenged law affects conduct protected by the Second Amendment, and if so, what level of scrutiny to apply. The court noted that ten sister circuits have adopted a substantially similar two-step test. The court assumed, without deciding, that California’s law implicates the Second Amendment, and joining its sister circuits that have unanimously applied intermediate scrutiny to other laws banning or restricting large-capacity magazines, determined that intermediate scrutiny applied because the ban imposed only a minimal burden on the core Second Amendment right to keep and bear arms. Applying intermediate scrutiny, the court held that section 32310 was a reasonable fit for the important government interest of reducing gun violence. The statute outlaws no weapon, but only limits the size of the magazine that may be used with firearms, and the record demonstrates (a) that the limitation interferes only minimally with the core right of self-defense, as there is no evidence that anyone ever has been unable to defend his or her home and family due to the lack of a large-capacity magazine; and (b) that the limitation saves lives. The court noted that in the past half-century, large-capacity magazines have been used in about three-quarters of gun massacres with 10 or more deaths and in 100 percent of gun massacres with 20 or more deaths, and more than twice as many people have been killed or injured in mass shootings that involved a large-capacity magazine as compared with mass shootings that involved a smaller-capacity magazine. Accordingly, the ban on legal
