Second Amendment Update; P.C. § 32310 and “Large Capacity Magazines"

By popular vote, Proposition 63 was passed on November 9, 2016, amending Penal Code § 32310 (to be effective July 1, 2017), outlawing (with limited exceptions) “large capacity magazines.” A large capacity magazine is one that holds more than ten rounds of ammunition.  In 2017, a federal district court judge found Section 32310 to be an unconstitutional violation of the Second Amendment (see Duncan v. Becerra (June 29, 2017) 2017 U.S. Dist. LEXIS 101549), putting implementation of the amended Section 32310 on hold.  This lower court ruling was initially upheld by a three-judge panel of the Ninth Circuit Court of Appeal in a split, two-to-one decision.  (Duncan v. Becerra (9th Cir. Aug. 14, 2020) 970 F.3rd 1133.)  Well, if you thought we were done with this topic, you were wrong.  An en banc panel (eleven justices) of the Ninth Circuit Court of Appeal just reversed itself, finding Pen. Code § 32310 to be constitutional and enforceable.  In Duncan v. Bonta (9th Cir. Nov. 30, 2021) __ F.4th __ [2021 U.S. App. LEXIS 35256], an 8-to-3 decision, the Court used what it referred to as an “intermediate scrutiny” test (requiring only that the statute show a “reasonable fit with an important governmental interest,” while “leav(ing) open ample alternative means of exercising that right”) in holding that California’s large capacity magazine restrictions do not violate the Second Amendment, the Takings Clause, nor the Due Process Clause.  If you don’t know what the “Takings Clause” refers to, I’ll tell you.  Simply put, under the Fifth Amendment, a governmental agency is prohibited from taking one’s private property without just compensation.  “Due process,” of course, requires that everyone be treated with “fundamental fairness,” typically referring to the necessity of an evidentiary court hearing prior to depriving a ....

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