Last Friday, August 14, the U.S. Court of Appeals for the Ninth Circuit issued its Duncan v. Becerra opinion. The 2-1 opinion, with Judge Kenneth Lee writing for the majority, held that Judge Roger Benitez, U.S. District Court for the Southern District of California, correctly ruled that California’s ban on magazines which hold more than 10 rounds of ammunition was unconstitutional. Judge Consuelo Callahan joined the opinion, and Chief Judge Barbara Lynn, U.S. District Court for the Northern District of Texas and sitting by designation, dissented.

The key legal points are that (1) Standard-capacity magazines which normally hold more than 10 rounds are not unusual, are in common use, and have been since before the nation’s founding (the opinion stated that there were approximately 115 million standard-capacity magazines in the U.S. as of 2015, and are legal under federal law); (2) Standard-capacity magazines have a long history in the U.S. and the world; the opinion noted that the first firearm that could fire more than 10 rounds without reloading was invented in 1580. By comparison, limitations on magazine capacities are fairly recent and thus not considered long-standing; (3) California's blanket ban was not narrowly tailored to the least restrictive means, imposed an unconstitutional burden on the people’s constitutional rights, and failed both strict and intermediate scrutiny analyses.

As of this writing, California Attorney General Xavier Becerra has not yet publicly stated whether he will ask for en banc review or directly petition for certiorari. It also is possible that one of the Ninth Circuit’s judges will request a sua sponte en banc call. Because the Ninth Circuit has so many judges, its en banc court consists of the Chief Judge and ten randomly drawn non-recused judges; senior judges may not serve en banc unless they served on the 3-judge panel.