Duncan v. Becerra: Urging Reversal of Dangerous Outlier Ninth Circuit Decision
Case Information: Duncan v. Becerra, No. 19-55376 (9th Cir. amicus brief filed Sep. 8, 2020).
At Issue: On August 14, 2020, a divided three-judge panel of the 9th Circuit appeals court released an opinion striking down California’s large capacity magazine (LCM) ban on Second Amendment grounds. This outlier opinion departs from the unanimous consensus of other federal appeals courts, which have upheld LCM bans in other states. In response, California filed an en banc petition for the case to be re-heard by a panel of 11 judges. We filed an amicus brief in support of this petition.
**NOTE: most of California’s LCM restrictions remain in effect pending final judgments by the Ninth Circuit and the district court. The state of California therefore continues to restrict the manufacture, importation, sale, and transfer of large-capacity magazines. However, courts have blocked California from enforcing its ban on the possession of previously-owned LCMs (adopted in 2016 pursuant to Proposition 63).**
Our Brief: Our brief, filed jointly with March for Our Lives Action Fund, Brady, Everytown for Gun Safety, and Team ENOUGH, argues that the panel decision should be reheard because it contradicts decisions in every other federal circuit to rule on the matter, which have all found that LCM restrictions are constitutional. In reaching its decision, instead of following 9th Circuit caselaw and Heller, the panel effectively used a “common use” test, which gives absolute constitutional protection to any commercially successful firearm or accessory. We argue that by using this unsupported test, the panel created several inter-circuit conflicts, and divorced the Second Amendment from its core protection of responsible individual self-defense. We further argue that the panel’s historical analysis was lacking, and in conflict with Heller, and that its heightened scrutiny analysis contradicts pre-existing 9th Circuit law, by redefining what a “class” of weapons is. We also argue that the decision compromises Americans’ right to legislate on the issue of gun violence and denies historically under-protected groups the ability to determine their own safety.