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By David L. Hudson Jr., published on December 16, 2021

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The 9th U.S. Circuit Court of Appeals relied on principles from First Amendment law in rejecting a Second Amendment challenge to a California law banning large-capacity magazines.


The law at issue defines large-capacity magazines as those that can hold more than 10 rounds of ammunition. The law provides exceptions for active or retired law enforcement officers, security guards for armored vehicle, and those with special weapons permits.


A group of individuals, who possessed such large-capacity magazines before the law’s passage, challenged the law in federal court in 2017. They argued that the law infringed on their Second Amendment right to keep and bear arms. The Second Amendment reads in full: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”


In District of Columbia v. Heller (2008), the U.S. Supreme Court for the first time held that the Second Amendment protected an individual right to keep and bear arms rather than merely a collective right of a militia. Two years later, in McDonald v. City of Chicago(2010), the Court incorporated the Second Amendment right, meaning that it applies not just to the federal government but also to state and local governments.


In Heller, the Supreme Court drew analogies to First Amendment law. For example, the Court reasoned that just as the First Amendment protected the right of the people, so did the Second Amendment. Also, the Court reasoned that just as the First Amendment doesn’t protect all forms of speech, the Second Amendment doesn’t protect individuals’ rights to have any kind of weapon.


What the Supreme Court did not do in Heller was identify a standard of review to determine whether certain laws violated the Second Amendment.


In the California case, a federal district court granted summary judgment to the plaintiffs in 2019. A three-judge panel affirmed this ruling by a 2-1 vote in 2020. The state of California then petitioned for en banc, or full panel, review.


The en banc majority reversed the panel and upheld the law in its Nov. 30, 2021, decision in Duncan v. Bonta. Writing for the majority, Judge Susan P. Graber reasoned that a two-step process applies. The first question is whether the challenged law affects the Second Amendment. If it does, then the court applies intermediate scrutiny.


The 9th Circuit reasoned that the state law survived intermediate scrutiny.


Graber wrote that “many mass shootings involve large-capacity magazines” and the law is narrowly drafted to address such concerns. She concluded that the law is a “reasonable fit for the compelling goal of reducing gun violence.”


In a somewhat unusual separate concurring opinion, Graber further emphasized the importance of drawing on First Amendment analogies. She reasoned the law affected the Second Amendment but passed intermediate scrutiny. She noted that six other circuit courts of appeal had upheld similar laws. Furthermore, Graber followed the Supreme Court’s guidance in relying in part on First Amendment law.


“The Court regularly assesses First Amendment challenges using intermediate and strict scrutiny, depending on the nature of the law and the context of the challenge,” Graber wrote. “We see no reason why those same standards do not apply to Second Amendment challenges as well.”


In a separate concurrence, Judge Marsha S. Berzon drew another analogy to First Amendment law, writing: “Although its reach extends to modern weapons just as the First Amendment protects modern forms of speech … the Second Amendment has multiple limitations.”


The judges in the majority were not the only ones to draw meaning from the First Amendment. Judge Lawrence Van Dyke, in his dissenting opinion, questioned the way his colleagues balanced away a constitutional right. He explained: “We don’t protect the free speech of the taciturn any less than the loquacious,” he wrote. “We don’t protect the free exercise of religion in proportion to how often people go to church.”


Van Dyke also criticized his colleagues in the majority for applying less-rigorous scrutiny in Second Amendment cases than in First Amendment free-speech cases.


The 9th Circuit en banc decision in Duncan v. Bonta shows a continued tendency on the part of lower courts, just as the Supreme Court did in Heller, to draw analogies to First Amendment law. The pattern likely will continue.


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David L. Hudson Jr. is a professor at Belmont University College of Law who writes and speaks regularly on First Amendment issues. He is the author of Let the Students Speak: A History of the Fight for Free Expression in American Schools (Beacon Press, 2011), and of First Amendment: Freedom of Speech (2012). Hudson is also the author of a 12-part lecture series, Freedom of Speech: Understanding the First Amendment (2018), and a 24-part lecture series, The American Constitution 101 (2019).




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