9th circuit panel debates authority to hear California’s large capacity magazine ban

An en banc panel of the 9th U.S. Circuit Court of Appeals, during a high-stakes oral argument Tuesday over whether California’s large capacity magazine ban is constitutional, debated whether they even had the statutory authority to hear the case.

One member of the panel, Senior 9th Circuit Judge Susan P. Graber, – an appointee of President Bill Clinton – even asked whether the matter should be heard by the entire 29-member court “due to its importance,” something that has never been done.

The outcome of the appeal of Senior U.S. District Judge Roger T. Benitez’s decision striking down the law is expected to go the state’s way, as a majority of the panel’s 11 members – all appointees of Democratic presidents – already have ruled in its favor. Duncan v. Bonta, 23-55805 (9th Circ., filed Sept. 25, 2023).

Erin E. Murphy, a partner with Clement & Murphy PLLC, argued that the limited en banc panel should not consider the case because it is a new appeal, on remand from the U.S. Supreme Court following its June 2022 decision which adopted a new “history and tradition” standard for evaluating the constitutionality of state gun laws. New York State Rifle and Pistol Association v. Bruen, 20-843 (S. Ct., filed Dec. 17, 2020).

“But there wasn’t any decision,” said Senior 9th Circuit Judge Marsha L. Berzon, a Clinton appointee. “It was vacated by the Supreme Court.”

“That is correct, but that doesn’t mean this court didn’t issue a decision,” Murphy replied, referring to the same panel’s ruling in 2021 overturning an earlier decision in the same case by Benitez, an appointee of President George W. Bush. The 9th Circuit panel sent Duncan back to Benitez after the Bruen ruling.

Murphy suggested that the 9th Circuit start again with a full vote of the judges who are active on the 9th Circuit now, because senior judges – five of whom are on the 11-member panel because they took senior status between 2021 and today – are ineligible to participate. “You would have to have a new panel,” she said.

Berzon, one of those senior judges, disagreed. “There wasn’t a decision on the case or controversy, which is what started in the district court, which is still ongoing,” she told Murphy.

Murphy, however, said that position does not fit within 28 U.S.C. §46(c), which she said does not allow senior judges to continue participating in a new appeal even if they heard the case originally, when they were active judges.

As judges quarreled with each other, Senior 9th Circuit Judge Sidney R. Thomas, another Clinton appointee, cut in. “Why do you think this is unusual?” he asked. “We’ve been doing it this way for over a quarter of a century in countless cases. Senior judges stay on, after remand from the Supreme Court or the district court. ... Every other circuit does it the same way.”

9th Circuit Judge Ryan D. Nelson, an appointee of President Donald Trump, disagreed. “Every other circuit doesn’t do it our way. That’s the point.”

Chief Judge Mary Murguia chided Nelson for interrupting, saying the exchange was between Thomas and Murphy.

Nelson was irritated. “I was responding to a statement by another panel member that is not accurate,” he said. “This is a rehearing of a prior case.”

Solicitor General Michael J. Mongan said the en banc panel should consider the case. “I don’t think it’s sensible to read that senior judges only get one shot,” he said.

The debate over the limited en banc panel has raged for months, including over whether the same panel could issue a stay of Benitez’s order against the law, which would have allowed sales of large capacity magazines pending appeal. The panel reinstated the stay in October, by the same 7-4 vote along partisan lines.

The battle over the large capacity magazine law is expected to land before the Supreme Court eventually. In the meantime, the outcome of the case is expected to influence 9th Circuit appeals in several other Second Amendment cases over gun laws in California and other states.

On the merits, Mongan and Murphy debated whether large-capacity magazines are protected under the Second Amendment due to Bruen. Murphy said they are.

“Our tradition is one of protecting the right to possess arms that are in common use today,” she told the panel. “Even if they might be dangerous, if they’re in common use today, you can’t ban them.”

Mongan, however, said limiting magazines to 10 rounds is constitutional. “The record here establishes that large capacity magazines are not self-defense weapons,” he said. “These are especially dangerous devices that allow an attacker to maximize casualties with a huge volume of uninterrupted fire.”