Ninth circuit logoThree years ago I wrote a column questioning the constitutional and practical implications of gun control reforms following the Las Vegas massacre, including limiting the capacity of magazines. The moves have been oversold in the media as reforms that would make such attacks less likely or fatal while ignoring the constitutional standard for reviewing such measures. One of these reforms, California's ban on high capacity gun magazines, was put down by a panel of the United States Court of Appeals for the ninth circuit. Magazine laws, in particular, were one of the most promising areas of gun legislation following the 2008 District of Columbia Court rulings v. Heller. Though I doubted its effectiveness, I thought that the restrictions on magazines under Heller could possibly be a constitutional pattern with law properly drafted and supported.

It was about Proposition 63, a resolution that was passed in 2016 that makes magazines with a capacity of more than 10 rounds illegal.

The decision upheld US District Judge Roger Benitez's decision last year to pass a summary judgment in favor of Virginia Duncan and the California Pistol & Rifle Association. Lee was escorted by U.S. Circuit Judge Consuelo Callahan, but a dissent was drafted by U.S. District Judge Barbara Lynn, named by the Northern District of Texas.

In a 66-page decision, US Circuit Judge Kenneth Lee found that Proposition 63 "violated the core right of law-abiding citizens to defend themselves by banning the possession of LCM (Large-Capacity Magazines) within the home."

As discussed in the previous column, the problem was meeting a rigorous exam test with a rational foundation. When the Supreme Court found that gun ownership is an individual constitutional right, it triggered a rigorous exam test and the "strictest and strictest standard of constitutional examination." Miller v. Johnson, 515, US 900, 920 (1995). As such, it requires that state law be "closely tailored to an overriding interest".

The two-judge majority found that the law had missed this constitutional mark. In particular, the panel found that the law does not even meet the lower mid-term review standard. I agree with the panel rejecting any form of regulatory approval in cases such as Turner Broadcasting System, Inc. v F.C.C., 512 US 622 (1994) that would effectively invalidate the protection of the law itself:

"The state cannot violate the people's second right of amendment and then ask the courts to postpone its alleged 'expertise' once its laws are challenged. In other words, a mid-term review cannot be chevron-like deference. This very state-made argument was made flatly rejected by the majority in Heller. Despite the dissenting opinion of Justice Breyer, who explicitly promotes the deference of Turner, see 554 USA, 690–91, 704–05, the majority in Heller did not mention Turner and his descendants once. Applying Turner today would mean a waiver of our judicial independence and we oppose it. "

While I agree that many of these laws are based on the lower rational base test, I think the opinion is too broad. For example, I disagree that it was necessary to make exceptions for high crime areas in order to limit magazine capacity:

As explained above, Section 32310 contains only a few sensible exceptions for the group of people whose basic rights to self-defense are encumbered. The scope of § 32310 also condemns its validity. Section 32310 applies nationwide. It necessarily covers areas from the most affluent to the least affluent. It prohibits possession by citizens who may be in need of self-defense most, such as in rural areas or in places with high crime rates and limited police resources. It applies to almost everyone. It is indiscriminate in its prohibition. Nor is the law limited to firearms, which are not typically used for self-defense. These are not features of a law that is upheld by the Least Restrictive Intermediate Standard Courts.

My problem with capacity constraints is that they are practically meaningless to anyone who spends a little time practicing with their gun. I previously noted that limiting magazine capacity would likely have a marginal impact on such mass shootings at best, as most gun owners can swap magazines out in a matter of seconds. However, I don't see how limiting the shots to ten rounds in a magazine significantly changes the exposure between neighborhoods. The vast majority of shootouts only involve a few rounds.

I am not convinced that the majority of the Supreme Court would find that such LCM limits cannot be met under the higher audit standard. Indeed, I believe that a bespoke and assisted law could still pass the constitutional pattern. However, I do not see how this would affect the significant impact on gun deaths proposed by politicians, as discussed below.

The majority specifically limited the impact of this ruling, indicating that other gun control measures might still pass the Constitutional Test:

“We also want to make it clear that our decision today will not affect problems that are not ahead of us. We neither comment on bans on so-called “offensive weapons” nor do we speculate about the legitimacy of bans on magazines with much larger quantities of ammunition. Instead, we're just looking at the California ban on LCMs as it appears before us. We understand the purpose of this law being passed. But the laudable goal of reducing armed violence must also comply with the constitution. The almost categorical ban on LCMs in California violates the basic right to self-defense. It now criminalizes the possession of half of all American magazines. Illegal magazines are produced, which are often used in handguns by illegal citizens for self-defense. And it weighs heavily on the core right to self-defense guaranteed to people under the second amendment. It cannot stand. "

The panel also noted that the law may have satisfied its review with some basic provisions like a grandfather clause for those who already owned high-capacity magazines or outsourced areas.

The loser in these struggles remains the voters, sold to a bill of materials by politicians who announced that they would stop the carnage by adopting a series of gun control measures that offered more political than practical benefits. As noted in previous columns, politicians were quick to find themselves in the wave of anger and frustration, but unwilling to admit that Heller's range of allowable limits is quite limited. Instead, they have oversold laws banning things like "bump stocks" as major new reforms. The media played into this false narrative by undoubtedly covering the gun control campaign without acknowledging the minor impact of such measures, even if they could pass the high standard of testing.

Indeed, one of the most 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 essential contributor to gun death:

8 Dangerousness is a tougher question as weapons are necessarily dangerous. The "properties that make handguns particularly useful for self-defense also make them particularly dangerous." Heller, 554, USA, 711 (Breyer, J., Dissens). While we do not go into the dangers of LCMs, we note that the statistics in the records show that criminal use of LCMs is relatively low compared to their market saturation. Although nearly 115 million LCMs are in circulation in America today, LCMs were used 31 times between 1982 and 2012 in an incident that killed four or more people. Let's be very clear: we're not quoting these statistics to downplay the severity of these tragic and heartbreaking events. Rather, they are necessary in order to identify the “broad usage patterns and subjective motives of gun owners” when assessing whether “typical possession” is intended for legitimate purposes. See New York State Rifle & Pistol Ass & # 39; n vs. 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 usually owned for lawful purposes.

The point is that the vast majority of owners of LCMs are clearly using them for lawful purposes and there is no evidence that the magazines are any significant contributor to violent crime death. This is an example of the unsatisfied burden on gun control advocates. You cannot apply these laws to soundbites and assumptions. You need to provide a factual basis for certain limits and explain why they are needed to reduce crime or death. Instead, leaders treated such reforms as a matter of course and as a major curtailment of armed violence. Now, years later, when the indignation has subsided, the law has collapsed at its own weight.

For all the passions that emerged after the terrible shootings, little effort was made to properly formulate or support this new law. Even if it were sustained, it likely would not have made a material difference in the actual deaths of these crimes. However, politicians have effectively benefited from the wave of public emotion by citing these marginal measures as bold and powerful forms of gun control. That can be the real crime.

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