In the links at the bottom of last week’s newsletter, we mentioned a decision from the Ninth Circuit Court of Appeals upholding California’s magazine ban. It’s worth breaking that down a bit more.
First, a procedural history:
May 17, 2017: The California Rifle & Pistol Association sues the state of California in federal court. The CRPA is challenging on Second Amendment grounds the state’s ban on magazines holding more than 10 rounds.
March 29, 2019: Judge Roger Benitez strikes down the mag ban as unconstitutional. Freedom Week begins.
April 1, 2019: California files a motion with Benitez to stay his ruling pending appeal.
April 4, 2019: Benitez grants the motion. Freedom Week ends. Also, California’s appeal to the Ninth Circuit begins on this date.
A bit of context on federal courts. There are three levels: district court, circuit court, and Supreme Court. The district court is the one where the initial trial happens. The 50 states of the US are broken down into 89 districts. If you don’t like what the district court did, you can appeal to the circuit court that your district is under. There are 12 geographical circuit courts. The Ninth Circuit covers appeals from the district courts in Washington, Idaho, Montana, Oregon, California, Nevada, Arizona, Alaska, and Hawaii. Then if you don’t like the circuit court’s ruling, you can appeal to the Supreme Court. But unlike lower courts, the Supreme Court is permitted to deny requests to hear appeals (and in fact does deny about 98% of such requests).
August 14, 2020: A three-judge panel of the Ninth Circuit rules 2-1 to affirm Judge Benitez’s ruling that the mag ban is unconstitutional. They stay their judgement pending further appeals, so there isn’t a Freedom Week this time around.
August 28, 2020: California appeals for an en banc rehearing. That’s the federal court version of a do-over — it means the three-judge panel’s ruling would be vacated (i.e. rendered as if it never happened) and the case would be reheard “en banc”, i.e. with a bigger group of judges. In most circuits this means the entire group of judges, but the Ninth Circuit is so big that they hear cases en banc with an 11-judge group, not the full group of 29 judges who are on the court.
February 25, 2021: The Ninth Circuit grants the motion for an en banc rehearing.
June 22, 2021: Oral arguments take place for the en banc rehearing.
November 30, 2021: The en banc court rules 7-4 to reverse Benitez’s ruling and uphold California’s magazine ban.
Ok, so with characteristic speed the federal courts have spent 4 years shaking this out. And it’s not done yet — the CRPA will now appeal to the Supreme Court, and if SCOTUS agrees to hear the case, the ruling would come down in 2023. That all means that for at least the next ~2 years, the en banc Ninth Circuit’s ruling is the final word.
“Ninth Circuit upholds gun restriction” isn’t a terribly novel article though. What was novel about it is the dissents. Particularly the one from Judge Lawrence VanDyke (starting on page 143 of the court’s ruling). We excerpted some it last week, but it’s worth a deeper dive.
Federal judges have written plenty of strong Second Amendment defenses (some as opinions for their court and some as dissents). See, for example, Judge Stephanos Bibas on New Jersey’s magazine ban, then-Seventh Circuit Judge Amy Coney Barrett on the lifetime gun possession prohibition for felons, and then-D.C. Circuit Judge Brett Kavanaugh on D.C.’s assault weapon ban.
VanDyke went harder though. His central premise wasn’t just that the law demands that California’s magazine ban must fall. It was that the Ninth Circuit (and other courts who’ve made similar rulings) only upheld the law because of the judges’ personal affinity for gun control. The idea that judges personal biases might color their opinions is a familiar discussion in most of society. But judges themselves are decidedly not open to that discussion. They don’t like to talk about it, and they certainly don’t make it the centerpiece of an opinion they write.
VanDyke put it like this:
The truth is that what our court calls “intermediate scrutiny” when reviewing Second Amendment cases doesn’t even rise to the level of real rational basis review. That’s a bold claim, I know. But think about it: if your state banned all cars, forcing all its citizens to use bicycles because many people are killed by drunk drivers (not to mention automobile accidents generally), would you think that was rational? No. What if California just banned all large vehicles (trucks, vans, etc.) because on rare occasions some crazed individual intentionally drives his car into a group of people, and large cars presumably do more damage? I doubt it. But that is what California has done here — banned a type of firearm magazine that has obvious self-defense benefits when used against a group of assailants, based on a purported harm that, while high-profile, is statistically extraordinarily improbable. Much more improbable than harm from misuse of a car. And while cars are not expressly protected by the Constitution, “arms” are.
The reason I think most of my colleagues on this court would genuinely struggle more with a car ban than they do with a gun ban is that they naturally see the value in cars. They drive cars. So they are willing to accept some inevitable amount of misuse of cars by others. And my colleagues similarly have no problem protecting speech — even worthless, obnoxious, and hateful speech — because they like and value speech generally. After all, they made their careers from exercising their own speech rights. On the other hand, as clearly demonstrated by this case, most of my colleagues see “limited lawful” value in most things firearm-related.
But the protections our founders enshrined in the Bill of Rights were put there precisely because they worried our future leaders might not sufficiently value them. That is why our court’s “intermediate scrutiny” balancing approach to the Second Amendment is no more appropriate here than it would be for any other fundamental right. As the Supreme Court explained in rejecting Justice Breyer’s “‘interest-balancing’ approach,” noting that “no other enumerated constitutional right[‘s] … core protection” was subject to such a test,
[t]he very enumeration of the right takes out of the hands of government — even the Third Branch of Government — the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.
By the standards of federal judges’ writing, that’s shots fired. So much so that Judge Andrew Hurwitz, who was in the majority on this case, wrote a separate concurrence to chastise VanDyke:
The crucial issue here is what level of scrutiny to apply to the California law. We can respectfully disagree whether the measures California has adopted violate the Second Amendment. But an attack on the personal motives of the members of this Court who reach the same result in this case as every other Circuit to address this issue neither advances our discourse nor gives intellectual support to the legal positions argued by my respected dissenting colleagues. I start from the assumption that Judge VanDyke, whose dissent displays an admirable knowledge of firearms and ammunition, dissents today not because of his personal experiences or policy preferences but instead because he sincerely believes that his oath of fidelity to the Constitution requires that we invalidate what our colleague Judge Lee described in the now-vacated majority opinion for the three-judge panel as a “well-intentioned” law designed by the sovereign state of California to “curb the scourge of gun violence.” I simply ask that today’s majority, each of whom took the very same oath, be treated with the same level of respect.
Sounds reasonable enough. There’s value in collegiality. And even if it is partially a convenient fiction, the appearance of impartiality has value for the legitimacy of courts as an institution. But VanDyke dedicated a section of his dissent to addressing that too:
Judge Hurwitz has penned a short concurrence respectfully characterizing as inappropriate and hyperbolic my observations regarding how my colleague’s personal views influence our court’s Second Amendment cases. I agree that it is a troubling charge to posit personal views as a driving force behind judicial decision-making, and not one I make lightly. But whatever else it may be, my claim is hardly hyperbolic. Here are the facts: We are a monstrosity of a court exercising jurisdiction over 20% of the U.S. population and almost one-fifth of the states—including states pushing the most aggressive gun-control restrictions in the nation. By my count, we have had at least 50 Second Amendment challenges since Heller—significantly more than any other circuit—all of which we have ultimately denied. In those few instances where a panel of our court has granted Second Amendment relief, we have without fail taken the case en banc to reverse that ruling. This is true regardless of the diverse regulations that have come before us—from storage restrictions to waiting periods to ammunition restrictions to conceal carry bans to open carry bans to magazine capacity prohibitions—the common thread is our court’s ready willingness to bless any restriction related to guns. Respectfully, Judge Hurwitz’s claim that our judges’ personal views about the Second Amendment and guns have not affected our jurisprudence is simply not plausible. Res ipsa loquitur.
Judge Hurwitz’s own concurrence demonstrates this reality. In defending the validity of California’s interest, he doesn’t dispute that mass shootings are “infrequent,” but expressly dismisses that reality as irrelevant. Why? Because, in his view, “hardly anyone is untouched by the[] devastation.” His proof? A very personal anecdote about losing our beloved colleague to a mass shooting. No one disputes the depth of that tragedy, which is exactly why such uncommon occurrences nonetheless deeply influence my colleagues’ views about gun control and the Second Amendment. But the fact that members of our court have been personally affected by a mass shooting is not a legitimate reason to ignore the undisputed statistical rarity when weighing the government’s interest in its ban—it falls in the same category as choosing to drive instead of flying because you know someone who was tragically killed in a rare commercial airline accident. As a personal psychological phenomenon, such exaggeration of risks is completely understandable. As a legal matter, it should have no place in applying fundamental constitutional rights, including the Second Amendment. And just as irrelevant is Judge Hurwitz’s reliance on yet more personal anecdotes — that “[o]ther members of the Court have lost family and friends to gun violence” — that are entirely unrelated to mass shootings. Defending California’s regulation by sharing such deeply personal examples only demonstrates just how hard it is for any judge, including my esteemed and talented colleagues, to evaluate these cases in the objective and detached manner required when the legal test itself offers no meaningful guiderails.
It is important to emphasize that I point to my valued colleagues’ personal views not to engage in some unrelated ad hominem attack, but rather because the impact of those views is directly relevant to the purpose of this dissent. When judges are effectively told to balance the necessity for some particular gun-control regulation against that regulation’s effect on the “core” of the Second Amendment, there isn’t much for the judges to work with other than their own personal views about guns and the Second Amendment. Whether judges intend to bring in their personal views or not, those views inescapably control our holdings when applying a test as malleable as our Second Amendment intermediate scrutiny standard.
The rest of VanDyke’s opinion goes more to the heart of the case itself, and is well worth reading. We included a long excerpt in last week’s newsletter, the gist of which was this:
…the majority’s focus on the fact that only 2.2 bullets are used on average in a self-defense shooting, and concluding that a law banning more than that “interferes only minimally with the core right of self-defense,” is grossly misplaced. An average of 0.0 rounds are fired on average in preventing government tyranny. And the average person will fire an average of 0.0 rounds in self-defense in their entire lifetime. If the rarity alone of exercising one’s Second Amendment rights cuts so dispositively against their protection, then the Second Amendment protects nothing.
Yet when it comes to the uncommonness of mass shootings — the reason California says it needs its magazine ban — the majority counts that as nothing. You would think that if the government seeks to interfere with a fundamental right, the infrequency of the claimed harm would be a very important consideration. For example, if the government sought to ban some type of communication because it very infrequently resulted in harm, we would never countenance that. On the other hand, where some type of communication frequently results in harm, it might survive heightened scrutiny (e.g., fighting words).
Here, California relies on a statistically very rare harm as justifying its ban, but a harm that, while infrequent, grabs headlines and is emotionally compelling. The emotional impact of these tragedies does all the work for the government and our court. But if a court was going to balance a fundamental right against a claimed harm, that is precisely where judges must cut through the emotion and do their job of holding the government to its (supposedly heightened) burden. The majority here doesn’t even try.
From there, VanDyke moves from critiquing the statistical case to critiquing the foundational philosophical case. Highlighting a theme we’ve written about before (e.g. in “Guns are specifically designed to kill: the logic error behind the whole gun debate” and in “OSD 120: Guns are dangerous. That’s a feature, not a bug.”), VanDyke focuses on how the majority’s finding that magazine capacity makes a weapon more effective is an argument against mag bans. And on the way to that argument, VanDyke’s opinion amusingly turns into a gun review YouTube channel for a couple paragraphs:
The majority’s uneven treatment of rarity is not the only example where its anti Second Amendment bias shows through in how it reads the record. The majority questions whether law-abiding citizens even want higher capacity magazines for self defense, speculating “whether circulation percentages of a part that comes standard with many firearm purchases meaningfully reflect an affirmative choice by consumers.” But such musings only reveal a clear lack of knowledge about guns — or even basic economics, apparently. In free countries like this one, unless a market is interfered with by regulations like the one at issue in this case, it generally provides what consumers want. The market for self-defense firearms is no exception. Until only a few years ago, if you wanted a “micro-compact” firearm for self-defense (of the type that serves little or no military usage), you were generally limited to a six to eight-round magazine capacity. For example, the KelTec P3AT came with a six-round magazine, as did the Ruger LCP, Glock 43, Kimber Solo, and Walther PPK (of James Bond fame). The Kahr PM9 and Sig Sauer P238 offered six or seven-round magazines, while the Smith & Wesson M&P Shield came with seven or eight rounds. Not too long ago, it was basically impossible to find a lightweight, micro-compact firearm even capable of holding 10 rounds in its magazine.
Then, in 2019, Sig Sauer released the P365, which took the self-defense market by storm because suddenly law-abiding citizens could have the same size micro compact firearm, but now carrying 12 or 15 rounds in its magazine. Other companies quickly followed suit, with Springfield Armory releasing the Hellcat (11 to 13-round magazines), Ruger releasing the Max-9 (12+1), Smith & Wesson releasing the M&P Shield Plus (13+1), and Kimber releasing the R7 Mako (13+1). Aftermarket magazine manufacturers like Shield Arms released flush-fitting magazines holding 15 rounds for diminutive guns like the Glock 43x and 48.
All this has happened in just the past few years, in segment of the firearms market that has essentially no “military” application. It has happened because many law-abiding citizens want higher capacity magazines for one purpose: self-defense. The majority’s odd speculation that maybe the self-defense market doesn’t want higher capacity magazines is as uninformed as wondering why cruise-control comes standard on their cars since nobody in their urban neighborhood wants it.
While the majority is happy to engage in ill-informed speculation when it comes to limiting gun rights, it demonstrates a distinct lack of imagination and basic logic when it comes to understanding why so many citizens desire a magazine holding over 10 rounds. First, the majority posits a classic false dilemma (a.k.a. an either-or fallacy) by waxing on at length about how larger magazines “provide significant benefits in a military setting,” not self-defense. Of course, almost every attribute of a weapon that makes it more effective for military purposes also makes it more effective for self defense: more accurate, faster firing, the ability to engage multiple targets quickly — these are all characteristics of a weapon that make it better for both military and self defense purposes. The majority’s fixation on the effectiveness of higher-capacity magazines in the military context does not somehow demonstrate that the magazines are not also useful for self-defense.
The majority relatedly adopts California’s argument that magazines over 10 rounds are “dangerous” when misused. Again, essentially every attribute of a weapon that makes it more effective for self-defense makes it more dangerous when misused. Good sights on a handgun make it more effective for lawful self-defense — but also make it more dangerous when misused. A pistol that doesn’t malfunction is really nice to have in a self-defense situation — but is also more dangerous when misused. Modern hollow-point ammunition, with its dramatically increased stopping potential, has seriously improved the performance of handguns in a self-defense situation—but of course also make the handgun more dangerous when misused. This type of logic, applied the way the majority does, would justify banning all semi-automatics since they are more dangerous than revolvers, all revolvers since they are more dangerous than derringers, all derringers since they are more dangerous than knives … until we are left with toothpicks. That is why the Supreme Court in Heller only talked about weapons that are both “dangerous and unusual” being outside the purview of the Second Amendment. 554 U.S. at 627 (emphasis added) (citation omitted). The mere fact that some attribute (like a larger capacity magazine) might make a weapon more “dangerous” when misused cannot be a basis to avoid the Second Amendment — if so, the Second Amendment protects only nerf guns.
There’s only one thing we can say to that: we’re looking forward to hearing the Supreme Court take a side in the Glock vs. Sig flamewar 😉
This week’s links
Video game developer Ward B accuses Kalashnikov of stealing a shotgun design from a video game and turning it into a real gun
Render is fine.
Duke Center for Firearms Law: Scholarship highlight
This blog is worth following. Here they highlight some recent gun-related law review articles. Thanks to a newsletter reader for sending this one in.
Rebels in Myanmar are using JStark’s FGC-9
Conflicts like these are complicated, and it’s rare that there’s a crisp delineation between good guys and bad guys. 3D-printed guns can empower either, but their advantage tends to accrue to the decentralized parties.
The en banc Sixth Circuit allows the ATF’s bump stock ban to stand
The court split 8-8, and in a tie, the lower court’s ruling stands. The lower court had ruled in favor of the ATF, so the bump stock ban stands. The next step is to try to get the Supreme Court to hear an appeal.
OSD office hours
If you’re a new gun owner, thinking about becoming one, or know someone who is, come to OSD office hours. It’s a free video call with an OSD team member to ask any and all your questions.
Merch
Top-quality shirts, hats, and patches with OSD vibes.
Support
Like what we’re doing? You can support us at the link below.