State cap on guns’ ammo upheld
Appeals court says the ban on large-capacity magazines does not hinder self-defense.
By Maura Dolan, LA Times
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A 30-round magazine, left, and a 10-round magazine, right, rest below an AR-15 rifle at the Ammunition Storage Component company in New Britain, CT. Charles Krupa/AP/REX/Shutterstock |
SAN FRANCISCO — A federal appeals court on Tuesday upheld California’s ban on large-capacity ammunition magazines, a ruling likely to lead to the court’s approval of the state’s ban on assault weapons.
In an en banc decision, the U.S. 9th Circuit Court of Appeals ruled 7 to 4 that a state law that limits the size of magazines — ammunition feeding devices for firearms — does not significantly interfere with the right to self-defense. The court noted that there was no evidence that a person has been unable to defend a home because of lack of a large- capacity magazine.
During the past 50 years, the court said, large-capacity magazines have been used in about three-fourths of mass shootings that resulted in 10 or more deaths and in 100% of those with 20 or more deaths.
“The ban on legal possession of large-capacity magazines reasonably supports California’s effort to reduce the devastating damage wrought by mass shootings,” Judge Susan P. Graber, a Clinton appointee, wrote for the court.
Two other gun control cases had been put on hold pending a decision in the magazine case. Tuesday’s decision suggests that California’s ban on assault weapons, which a lower court had struck down , is also likely to be ruled constitutional.
The four Republican appointees on the panel dissented — one of them accusing the majority of anti-gun bias — and a gun rights group said it would ask the U.S. Supreme Court to overturn the ruling.
A majority of the justices on the Supreme Court has expressed support for limiting gun regulations, and the court is expected next year to strike down laws in California and New York that deny permits for most people to carry concealed weapons in public.
California’s large-capacity magazine ban, approved by voters in 2016, limits possession to magazines that hold 10 or fewer rounds of ammunition. A district judge and a divided three-judge 9th Circuit panel had struck down the law, which Tuesday’s ruling revived.
“Large-capacity magazines allow a shooter to fire more bullets from a single firearm uninterrupted,” Graber wrote, “and a murderer’s pause to reload or switch weapons allows potential victims and law enforcement officers to flee or to confront the attacker.”
The court noted that Washington, D.C., and eight other states have also imposed restrictions on large-capacity magazines and that six other federal courts of appeals have upheld the laws.
“The ban on large-capacity magazines has the sole practical effect of requiring shooters to pause for a few seconds after firing 10 bullets, to reload or to replace the spent magazine,” Graber wrote.
“Nothing in the record suggests that the restriction imposes any more than a minimal burden on the 2nd Amendment right to keep and bear arms.”
U.S. District Judge Roger T. Benitez overturned both the magazine ban and the bar on assault weapons. In the assault weapons case, Benitez likened an AR-15 semiautomatic rifle to a Swiss Army knife and called it “good for both home and battle.”
Benitez, who was appointed by President George W. Bush, said the assault weapons ban unconstitutionally infringed on the rights of California gun owners and “has had no effect” on curtailing mass shootings.
In a dissent Tuesday, 9th Circuit Judge Patrick J. Bumatay, a Trump appointee, said the banned magazines were “commonly owned by millions of law-abiding citizens for lawful purposes.”
“These magazines are neither dangerous and unusual, nor are they subject to longstanding regulatory measures,” Butamay wrote.
Judge Lawrence VanDyke, another Trump appointee, wrote a separate dissent that accused his colleagues of infusing their personal views into the law.
“The majority of our court distrusts gun owners and thinks the 2nd Amendment is a vestigial organ of their living constitution,” VanDyke wrote.
VanDyke’s dissent, which no other judge signed, was unusual. Instead of focusing solely on the law, VanDyke questioned the other judges’ neutrality.
VanDyke said mass shootings were indeed “horrific” but also statistically rare. Large-scale magazines might be needed for self- defense if someone is attacked by a group of assailants, he said.
The majority’s “views drive this circuit’s case law, ignoring the original meaning of the 2nd Amendment and fully exploiting the discretion inherent in the Supreme Court’s cases,” VanDyke wrote.
Judge Andrew D. Hurwitz, an Obama appointee, objected.
VanDyke’s dissent was as inappropriate and factually unfounded as “a statement by the majority that today’s dissenters are willing to rewrite the Constitution because of their personal infatuation with firearms,” Hurwitz wrote.
As to VanDyke’s contention that mass shootings were rare, Hurwitz said: “The people of California should not be precluded from attempting to prevent mass murders simply because they don’t occur regularly enough in the eyes of an unelected Article III judge.”
Chuck Michel, president of the California Rifle & Pistol Assn., said his group would ask the 9th Circuit to put a hold on the decision while the association seeks review in the U.S. Supreme Court.
The ban on possession of large-scale magazines had been stayed pending the outcome of the case and should continue to be blocked until the Supreme Court decides whether to weigh in, he said.
Michel predicted the Supreme Court would change the legal ground rules for evaluating gun laws and said the 9th Circuit should have delayed a ruling until after the high court’s decision next year on permits for carrying concealed weapons.
Supporters of gun regulations praised the 9th Circuit decision.
“Today’s ruling is the latest recognition from the federal courts that reasonable gun safety laws are entirely consistent with the 2nd Amendment,” said Eric Tirschwell, executive director of Everytown Law, which litigates for a gun safety group. “This is great news for Californians and an important contribution to the centuries of legal precedent backing lifesaving gun laws.”
L.A. council votes to ban ‘ghost guns’
Action comes amid a surge in seizures of the untraceable weapons, usually sold in kits.
By Julia Wick, LA Times, staff writer Kevin Rector contributed to this report.
Untraceable, unserialized and relatively easy to assemble at home, so-called ghost guns are typically sold in kits — no background check necessary.
Police say the use of ghost guns in Los Angeles has soared in recent years, in line with broader trends across the nation.
The number of ghost guns seized by the Los Angeles Police Department has increased by approximately 400% since 2017, with an even sharper uptick this year, according to an Oct. 19 report issued by the department.
In that same report, the LAPD described the use of ghost guns as “an epidemic not only in Los Angeles but nationwide.”
The department confiscated 813 ghost guns in 2020. During the first 11 months of 2021, 1,780 ghost guns — more than double last year’s total — were seized by the LAPD, Chief Michel Moore said Tuesday. Ghost guns have been used in 24 murders, eight attempted murders, 60 assaults with a deadly weapon and 20 robberies this year, Moore said.
On Tuesday, Los Angeles joined a growing list of California cities that are cracking down on ghost guns, with the City Council voting unanimously to ban the untraceable firearms.
The ordinance, which Mayor Eric Garcetti is expected to sign, bans the possession, sale, purchase, receipt or transportation of firearms without serial numbers, as well as the parts used to make them. Violators could be fined up to $1,000 and receive up to six months in jail.
Speaking at a news conference after the vote, Moore made clear that he did not think the ban would solve gun violence in Los Angeles.
“But this is a feeder system to that problem,” he said. “And much like automobile safety, it is accomplished through a series of progressive steps.”
Councilman Paul Koretz said that he and Councilman Paul Krekorian requested this ordinance in August “following an increase in shootings, gun-related homicides, and a surge in the number of ghost guns marketed to those who are unable to purchase firearms legally.”
Ghost guns are exempt from laws requiring background checks and waiting periods because they are sold as unassembled kits, according to the motion introduced by Koretz and Krekorian.
“One of the most successful strategies this nation has adopted to reduce gun violence is background checks. ... Background checks work , ” Krekorian said. “And yet, we now have an entire industry of manufacturers, the sole purpose of which is to evade background checks.”
California Sens. Dianne Feinstein and Alex Padilla weighed in to support the ordinance before its passage, calling it “an important effort” to help keep the weapons off the street, in a letter sent last week to council President Nury Martinez.
“Similar initiatives have already been implemented in San Diego and San Francisco, and we commend the Los Angeles City Council for considering a similar measure,” Feinstein and Padilla wrote. San Diego’s and San Francisco’s bans were both approved in September.
Efforts to stem the spread of ghost guns in California extend beyond local legislation.
In October, Gov. Gavin Newsom signed legislation that adds ghost guns to the list of weapons that law enforcement can seize under gun violence or domestic violence restraining orders. Newsom also signed a law in 2019 that will require the sale of components used to build ghost guns to be carried out through a licensed vendor, but that law won’t go into effect until 2024.
In February, City Atty. Mike Feuer announced a city lawsuit against a major manufacturer of ghost gun parts , Polymer80.
