Duncan v Becerra (three judge panel of Ninth Circuit upholds District Court's summary judgement striking down California's large magazine ban)

Link to Opinion of the Court in Duncan v Becerra.

Opinion by United States Circuit Judge Kenneth K. Lee, joined by United States Circuit Judge Consuelo M. Callahan. Dissent by Chief United States District Judge Barbara M. G. Lynn of the United States District Court for the Northern District of Texas, sitting with the Ninth Circuit by designation.

Both the majority and the dissent found that the statute imposed a burden on Second Amendment protected conduct. However, the majority proceeded under strict scrutiny and under that standard, found that the statute unconstitutionally burdened protected Second Amendment conduct. The dissent proceeded under intermediate scrutiny and under that lower standard found that the statute did not unconstitutionally burden protected Second Amendment conduct.

As the majority carefully points out, the statute fell because it was ridiculously broad and stated that a narrowly written statute, omitting common used magazines, could survive strict scrutiny.

This was a well written decision, that leaves the door open for California to write a new, more narrowly targeted statute. California retains the ability to carefully outlaw certain high capacity magazines, why the basic right of Californian’s to keep and bear arms is protected, including the right to retain and to purchase modest capacity magazines that have been long in existence.

This decision strikes the perfect balance between the State’s ability to legislate in the interest of public safety and the public’s right to keep and bear arms.

It is a half-assed work around because they couldn’t figure out a way to win.

“Help us help you violate The Diminished Right”

Where is that in the Constitution?

1 Like

The 9th Circuit Court of Appeals is not the left-leaning Court that it used to be.

I take a nuanced, not absolutist view of things.

People have rights.

States have powers, including the power to legislate in the interest of public safety.

Courts must thread the fine line between those two.

Just accept that I won’t accept the absolutist view that you and others hold to. :smile:

I accept a nuanced view of the Constitution. :smile:

You accept a work around of the Bill of Rights.


Including violating a Constitutional amendment? Where do you find that?

And again, I would state that I do not take an absolutist view of the Second Amendment, a view shared by Justices Scalia and Thomas and frankly every Federal Judge who has ever considered the Second Amendment. Not one has ruled that there is an absolute right to own any and everything you want with no restrictions at all. Not one.

And the vast majority of Second Amendment advocates share that view. Only a small minority share the absolutist view.

You cannot get a machine gun without possessing the requisite license and paying the requisite tax. Very few gun rights advocates are in favor of changing that.

The majority certainly did not work around the Second Amendment. They adopted a view that provides robust Second Amendment protection for California residents (and residents in the broader Ninth Circuit States).

And they insisted on a standard of review, strict scrutiny, which ensures that the Second Amendment will get the highest level of protection and respect possible.

I am a strong Second Amendment advocate.

I own an AR-15 and an AK-47, among numerous other weapons with high capacity magazines.

I find this ruling to be in line with the vision set by Justice Scalia in Heller.

I am satisfied with the decision.

There are limits the Federal Government and the States can rightly place in the name of public safety and I accept them.

And when those laws go too far, such as in California, I will happily challenge them in court.

I don’t accept the premise that the court “worked around” the Second Amendment.

Rather, they complied with the Constitution as a whole, balancing the public safety power of the State with the Second Amendment right of the people.

A least Trump can count one good legacy for his Presidency. He has turned the Ninth Circuit into a respectable appeals court.

Even when they rule to the left, their opinions are more solidly grounded in the law.

And who determines the nuance?

1 Like

Scalia waffled and hedged in Heller. It was a garbage decision.

The Constitution was written to protect rights, not be “reasonable”.

1 Like

Where do I find this prior restraint “safety power” in the Constitution that allows a compromise of an Amendment?

The DC court has always been worse than the 9th.

You know, the invisible word “unless” that comes after “shall not be infringed”.

1 Like

states do have authority, all the authority they retained in the constitution that is not precluded by it… like infringing on rights.

you can’t own a “machine gun” because a machine gun is a crew served weapon. the 2nd is an individual right. it guarantees the government cannot infringe on you individual right to keep and bear arms. an individual cannot “bear” a crew served weapon in combat, it takes a team. there are no “team rights”.