In this case, the Ninth Circuit, sitting en banc, upheld the constitutionality of California’s ban on what it calls “large-capacity magazines”—firearm magazines that can accept more than ten rounds of ammunition.
In dissent, Judge Bumatay, joined by Judges Ikuta and Nelson, explained that interpreting the Second Amendment under District of Columbia v. Heller requires courts to consider its text, history, and tradition, instead of applying a tiers-of-scrutiny approach.
Judge Bumatay then applied his proposed text, history, and tradition test and ultimately concluded that the law violated the Second Amendment. First, he explained that the Second Amendment applies to magazines because most firearms would be inoperable without them. Second, he surveyed the historical record to show that firearms and magazines that hold more than ten rounds enjoy a long historical pedigree that reaches back before the Founding. In addition, such firearms were widely possessed at the time of the Second Amendment’s incorporation through the Fourteenth Amendment. Judge Bumatay also explained that such magazines are in common use for lawful purposes today, like self-defense. Finally, he looked once again to the historical record, finding that the California law had no meaningful historical analogues. In other words, as discussed in Heller, the law was not a longstanding regulatory measure that enjoyed presumptive lawfulness. Instead, the first apparent regulations on magazine size were enacted in the 20th century. But for a regulatory measure to be longstanding, by the dissent’s approach, its analogues must date to the Founding. Based on all this evidence, the dissent concluded that California’s law is unconstitutional.
Judges Graber, Berzon, and Hurwitz filed separate concurring opinions. Judge Graber defended the tiers-of-scrutiny approach as consistent with Heller’s analogies to the First Amendment. Judge Berzon responded to Judge Bumatay’s text, history, and tradition proposal. Judge Hurwitz responded to Judge VanDyke’s dissent.
Judge VanDyke filed a separate dissenting opinion criticizing the Ninth Circuit’s Second Amendment jurisprudence and suggesting that both the tiers-of-scrutiny and text, history, and tradition approaches are too manipulable to properly cabin the judicial role.