Duncan v. Becerra Analysis by Henry Kramer       

A victory!  On August 14, 2020, the U.S. Court of Appeals for the Ninth Circuit issued its opinion in Duncan v. Becerra, a key case addressing both the Second Amendment and to a lesser extent the Fifth Amendment (takings without compensation).  The result was a considerable victory for the plaintiff and the California Rifle & Pistol Association. 

Before we celebrate this victory for the Second Amendment, another hurdle may emerge. The three judge panel drawn in Duncan happened to include two Republicans (one appointed by Bush and one by Trump) and one Democrat appointee.  The Democrat appointee dissented.  There may be a request for a new hearing by the entire circuit court, (called an en banc review), which could set aside the panel decision.  Liberal judges appointed by Democrats outnumber Republicans on the full Ninth Circuit so the panel decision may still be reversed.

The case also presents a split in opinions within the U.S. Circuit courts and enhances the chances the U.S. Supreme Court may hear the case.  The opinion was replete with legal analysis including citing both U.S. legal history and British legal history (from before independence).

This decision will be binding precedent only within the Ninth Circuit which covers the western part of the country.  It has no effect on federal law in New York which is in the Second Circuit.

What did the court hold?  Judge Lee, the Trump appointee, wrote in the court’s majority opinion: “In the wake of heart-wrenching and highly publicized mass shootings, the state of California barred its citizens from owning so-called ‘large capacity magazines’ (LCMs) that hold more than ten rounds of ammunition. But even well-intentioned laws must pass constitutional muster. California's near-categorical ban of LCMs strikes at the core of the Second Amendment — the right to armed self-defense. Armed self-defense is a fundamental right rooted in tradition and the text of the Second Amendment. Indeed, from pre-colonial times to today's post-modern era, the right to defend hearth and home has remained paramount”.

“California's law imposes a substantial burden on this right to self-defense. The ban makes it criminal for Californians to own magazines that come standard in Glocks, Berettas, and other handguns that are staples of self-defense. Its scope is so sweeping that half of all magazines in America are now unlawful to own in California. Even law-abiding citizens, regardless of their training and track record, must alter or turn over to the state any LCMs that they may have legally owned for years - or face up to a year in jail”.

“The state of California has latitude in enacting laws to curb the scourge of gun violence, and has done so by imposing waiting periods and many other limitations. But the Second Amendment limits the state's ability to second-guess a citizen's choice of arms if it imposes a substantial burden on her right to self-defense. Many Californians may find solace in the security of a handgun equipped with an LCM: those who live in rural areas where the local sheriff may be miles away, law-abiding citizens trapped in high-crime areas, communities that distrust or depend less on law enforcement, and many more who rely on their firearms to protect themselves and their families. California's almost-blanket ban on LCMs goes too far in substantially burdening the people's right to self-defense. We affirm the district court's summary judgment, and hold that California Penal Code section 32310's ban on LCMs runs afoul of the Second Amendment.”

The court also found that the Fifth Amendment’s provision against taking property without compensation was violated.  Advocates for the Fifth Amendment should join with us in defense of the U.S. Constitution.

California was coming for the guns lawfully owned by its law abiding citizens, including those used to defend hearth and home.  This is only the beginning.  If we do not resist, they will not only disarm this nation, they will then come for the other amendments, including the First Amendment (free speech) and the Fifth Amendment (taking without compensation).  All Americans should join us in our fight to preserve the Constitution and vote in November for president and down the ballot as well for candidates who will fight to preserve all our constitutional and legal rights.