Three years ago, I wrote a column questioning the constitutional and practical effect of gun control reforms pushed through after the Las Vegas massacre, including limits on the capacity of magazines. The moves were being oversold in the media as reforms that would make such attacks less likely or deadly while also ignoring the constitutional standard for the review of such measures.  Now, one of those reforms, California’s ban on high-capacity gun magazines, has been struck down by a panel on the United States Court of Appeals for the Ninth Circuit.  Notably, the magazine laws were one of the most promising areas of gun control laws after the Court’s 2008 decisions in District of Columbia v. Heller. Indeed, while I doubted its efficacy, I thought that limits on magazines could potentially pass constitutional muster under Heller with a properly crafted and supported law.

At issue was Proposition 63, a resolution enacted in 2016, making magazines with a capacity of over 10 rounds unlawful.

The decision affirmed U.S. District Judge Roger Benitez’s decision last year granting summary judgment in favor of Virginia Duncan and the California Pistol & Rifle Association.  Lee was joined by U.S. Circuit Judge Consuelo Callahan but a dissent was written by U.S. District Judge Barbara Lynn, sitting by designation from the Northern District of Texas.

In a 66-page order, U.S. Circuit Judge Kenneth Lee found Proposition 63 “struck at the core right of law-abiding citizens to self-defend by banning LCM [large-capacity magazine] possession within the home.”

As discussed in the earlier column, the problem was satisfying a strict scrutiny test with a rational basis.  Once the Supreme Court found gun ownership to be an individual constitutional right, it triggered a strict scrutiny test and the “most rigorous and exacting standard of constitutional review.” Miller v. Johnson, 515 U.S. 900, 920 (1995). As such, it requires that a state law be “narrowly tailored to achieve a compelling interest.”

The two-judge majority found that the law missed that constitutional mark. Notably, the panel held that the law does not even meet the lower intermediate standard of review.  I agree with the panel in rejecting a type of agency deference under cases like Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622 (1994) that would effectively gut the protections of the right itself:

“The state cannot infringe on the people’s Second Amendment right, and then ask the courts to defer to its alleged “expertise” once its laws are challenged. Put another way, intermediate scrutiny cannot mean Chevron-like deference. Indeed, this very argument advanced by the state was roundly rejected by the majority in Heller. Despite Justice Breyer’s dissenting opinion explicitly advancing Turner deference, see 554 U.S. at 690–91, 704–05, the majority in Heller did not once mention Turner and its progeny. To apply Turner today would amount to an abdication of our judicial independence and we refuse to do so.”

While I agree that many of these laws appear based on the lower rational basis test, the opinion in my view sweeps too broadly. For example, I do not agree that there was a need to make exception for high crimes areas in limiting magazine capacity:

As discussed above, section 32310 provides few meaningful exceptions for the class of persons whose fundamental rights to self-defense are burdened. The scope of section 32310 likewise dooms its validity. Section 32310 applies statewide. It necessarily covers areas from the most affluent to the least. It prohibits possession by citizens who may be in the greatest need of self-defense like those in rural areas or places with high crime rates and limited police resources. It applies to nearly everyone. It is indiscriminating in its prohibition. Nor is the law limited to firearms that are not commonly used for self-defense. These are not features of a statute upheld by courts under the least restrictive means standard.

My problem with capacity limits is that they are effectively meaningless to anyone who spends a little time practicing with their weapon. I previously noted that limiting magazine capacity would likely have a marginal impact at best on such mass shootings since most gun owners can swap out magazines within a few seconds. However, I do not see how the burden of limiting shots to ten rounds in a magazine changes significantly between neighborhoods. The vast majority of shootings involve only a couple rounds.

I am not convinced the majority on the Supreme Court would find that such LCM limits cannot be sustained under the higher standard of review.  Indeed, a property tailored and supported law could in my view still pass constitutional muster. I do not however see how it would have the substantial impact that politicians have suggested on gun fatalities, as discussed below.

The majority expressly limited the impact of this ruling and indicated that other gun control measures might still satisfy the constitutional test:

“We also want to make clear that our decision today does not address issues not before us. We do not opine on bans on so-called “assault weapons,” nor do we speculate about the legitimacy of bans on magazines holding far larger quantities of ammunition. Instead, we only address California’s ban on LCMs as it appears before us. We understand the purpose in passing this law. But even the laudable goal of reducing gun violence must comply with the Constitution. California’s near-categorical ban of LCMs infringes on the fundamental right to self-defense. It criminalizes the possession of half of all magazines in America today. It makes unlawful magazines that are commonly used in handguns by lawabiding citizens for self-defense. And it substantially burdens the core right of self-defense guaranteed to the people under the Second Amendment. It cannot stand.”

The panel also noted that the law might have satisfied its review with a few basic accommodations like a grandfather clause for those who already owned high-capacity magazines or carve-outs for certain areas.

The loser in these fights remains the voters who were sold a bill of goods by politicians who proclaimed that they were going to “stop the carnage” by passing a series of gun control measures that offered more political than practical benefits. As noted in the earlier columns, politicians were fast to ride the wave of anger and frustration but were not willing to admit that the range of permissible limits is quite limited after Heller. Instead, they oversold laws banning things like “bump stocks” as major new reforms.  The media played into this false narrative in unquestionably covering the campaign for gun control with little acknowledgement of the marginal impact of such measures even if they could pass the high standard of review.

Indeed, one of the more interesting aspects of the opinion is found in a footnote. Footnote 8 states that the new law is based on a false factual narrative that these magazines are the cause or substantial contributor to gun deaths:

8 Dangerousness is a more difficult question because weapons are necessarily dangerous. The “very attributes that make handguns particularly useful for self-defense are also what make them particularly dangerous.” Heller, 554 U.S. at 711 (Breyer, J., dissenting). While we do not opine on the dangerousness of LCMs, we note that statistics in the record show that criminal use of LCMs is relatively low compared to their market saturation. Despite nearly 115 million LCMs in circulation in America today, between 1982 and 2012 LCMs were used 31 times in an incident where four or more people were killed. Let us be perfectly clear: We do not cite these statistics to downplay the gravity of these tragic and heartbreaking events. Rather, they are necessary to discern the “broad patterns of use and subjective motives of gun owners” when assessing whether “typical possession” is for lawful purposes. See New York State Rifle & Pistol Ass’n v. Cuomo, 804 F.3d 242, 256 (2d Cir. 2015). Based on the statistics in the record, we conclude that LCMs are in fact both commonly owned and typically possessed for lawful purposes.

The point is that the vast majority of owners of LCMs are clearly using them for lawful purposes and it is not demonstrated that the magazines are a meaningful contributor to deaths from violent crime. This is an example of the unsatisfied burden for gun control advocates. They cannot pass these laws on soundbites and assumptions. They have to create a factual foundation for particular limits and why they are needed to achieve the reduction of criminality or fatalities. Instead, leading politicians just treated such reforms as self-evident and substantial limitations on gun violence. Now years later, as the outrage has subsided, the law has collapsed by its own weight.

For all of the passions expressed after the horrific shootings, little effort was made to properly craft or support this new law. Even if it were sustained it would not likely have made a material difference in the actual fatalities from these crimes. Yet, politicians effectively cashed out on the wave of public emotion by citing these marginal measures as bold and impactful forms of gun control.  That may be the real crime.