Two 9th Circuit Court of Appeals Judges’ Rx for Troubled Times: AR-15’s, Glocks, & Large Capacity Magazines
A Message from the President of Americans Against Gun Violence
September 19, 2020
On August 14, 2020, in a 2-1 decision, a three judge panel of the 9th Circuit Court of Appeals ruled that California’s ban on civilian ownership of large capacity magazines (defined as magazines that hold more than 10 rounds and abbreviated as “LCM’s”) violates the Second Amendment. The ban had been approved by almost a two to one margin by California voters in 2016 as part of Proposition 63, but two days before the law was due to go into effect, the gun lobby challenged the ban as being unconstitutional in the case of Duncan v. Becerra. A district court judge, Roger Benitez, appointed by President George W. Bush, initially granted a temporary injunction against enactment of the ban and later, on March 29, 2019, issued a ruling making the injunction permanent. California Attorney General Xavier Becerra appealed Benitez’s ruling to a three judge panel of the 9th Circuit Court of Appeals, and in 2-1 decision in which a Trump appointee, Judge Kenneth Lee, wrote the majority opinion, and in which a George W. Bush appointee, Judge Consuelo Callahan, concurred, the 9th Circuit Court panel agreed with Benitez that the LCM ban violates the Second Amendment.
Please make a contribution to Americans Against Gun Violence to help overturn this terrible decision. Read on for more details.
The Second Amendment states, in its entirety:
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.
Among the many absurdities in Judge Lee’s majority opinion in Duncan v. Becerra is the argument that LCM’s were in common usage in 1791 when the Second Amendment was adopted.[i] Of course, there is no mention of LCM’s in the Second Amendment itself or in historical records concerning the writing and ratification of the Amendment. Nor, in fact, is there anything in these records to suggest that the founders who wrote, debated, and ratified the Second Amendment ever intended or understood it to confer an individual right to own any kind of gun or gun-related paraphernalia outside of service in a well regulated militia. Prior to 2008, the Supreme Court had specifically ruled on four separate occasions[ii] that the Second Amendment did not confer an individual right to own guns. Specifically, in the 1939 Miller decision, the Court ruled unanimously:
“With obvious purpose to assure the continuation and render possible the effectiveness of [a well regulated militia] the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.”[iii]
Quoting from another section of the Miller decision, Supreme Court Justice Harry Blackmun reiterated in his majority opinion in the 1980 case of Lewis v. United States:
“The Second Amendment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia.’”[iv]
In an interview on the PBS News Hour in 1991, the late Supreme Court Chief Justice Warren Burger called the gun lobby’s misrepresentation of the Second Amendment “one of the greatest pieces of fraud - I repeat the word, ‘fraud,’ - on the American public by special interest groups that I have ever seen in my lifetime.”[v] Sadly, though, in 2008, a narrow 5-4 majority of the Supreme Court became a party to this fraud by ruling in the case of District of Columbia v. Heller that Washington DC’s partial handgun ban violated the Second Amendment.[vi] The majority opinion in the Heller decision, which was written by the late Supreme Court Justice Antonin Scalia, has been publicly condemned by respected constitutional authorities as a “radical departure” from prior legal precedent,[vii] an example of “snow jobs” produced by well-staffed justices,[viii] and as “gun rights propaganda passing as scholarship.”[ix] In his book, The Making of a Justice, the late Supreme Court Justice John Paul Stevens wrote, “Heller is unquestionably the most clearly incorrect decision that the Court announced during my tenure on the bench.”[x] Legal scholars have privately described the Heller decision to me as “an abomination.”
Justice Scalia’s majority opinion in the Heller decision is rife with internal contradictions, gross misrepresentations of historical facts, circular reasoning, and bombastic, mocking, and at times frankly juvenile rhetoric. I’ve discussed some of the more egregious portions of the Heller majority opinion in prior Americans Against Gun Violence president’s messages, and we issued a press release concerning the 2019 injunction issued by Judge Benitez in the Duncan v. Becerra case. Both Scalia’s 64 page majority opinion and Benitez’s 86 page injunction read more like gun lobby manifestos than the carefully reasoned opinions of objective jurists.
The majority opinion written by Judge Kenneth Lee in the 9th Circuit panel’s decision last month takes the fraudulent misrepresentation of the Second Amendment to a shocking new low. In ruling that California’s LCM ban violates the Second Amendment, Lee regurgitates much of the misinformation contained in the Heller decision and the Benitez injunction. He goes further, though, to imply that because AR-15’s are now “the most popular rifle in American history,”[xi] they should also be constitutionally protected, even though these assault rifles have been used in numerous horrific mass shootings over the past several decades, including the worst mass shooting in U.S. history – the Las Vegas massacre in 2017 in which 58 people were killed and over 400 wounded.[xii] Lee further states that in light of the current civil unrest in our country, “…communities of color have a particularly compelling interest in exercising their Second Amendment rights” to arm themselves with such weapons.[xiii] Lee is apparently oblivious to the fact that there is already a plethora of guns – and correspondingly, extraordinarily high rates of gun violence - in low income communities of color in our country.[xiv] Lee goes on to refer sanctimoniously to the Glock handgun, which comes with a standard 17 round magazine, as “America’s gun.”[xv] Lee is again apparently oblivious to the fact that Glock handguns are made by an Austrian company and that like AR-15’s, Glocks have also been used in numerous horrific mass shootings in the United States, including the mass shooting at the Emanuel African Methodist Episcopal Church in Charleston, South Carolina in 2015, in which Dylan Roof, intent on starting a “race war,” murdered nine African American parishioners and wounded two others.[xvi]
Based on Judge Lee’s majority opinion in Duncan v. Becerra, it appears that the vision that he and his fellow 9th Circuit Court Judge Consuelo Callahan hold for the future of our country is one in which all prudent and good American adults arm themselves with AR-15’s, Glock handguns, and LCM’s and remain constantly on guard - whether they’re in their homes or out in public at places such as churches, workplaces, recreational venues, shopping centers, educational institutions, etc. – ready to shoot back at bad Americans who attack them with similar weapons. Lee and Callahan provide no formula, though, for determining which good Americans with AR-15’s, Glocks, and LCM’s will subsequently become bad Americans with AR-15’s, Glocks, and LCM’s. Nor can they provide such a formula. The vast majority of mass shooters in the United States obtain their guns legally under our country’s lax firearm laws,[xvii] and it’s impossible to determine with any acceptable degree of accuracy which “good guys with guns” will one day become “bad guys with guns.”
At Americans Against Gun Violence, we have a very different vision for the future of our country. We believe that we have both the ability and the moral responsibility to reduce rates of gun violence in the United States to levels comparable to those in the other high income democratic countries of the world – countries in which mass shootings, shootings of civilians by police, and shootings of police by civilians, occur rarely, if ever; and in which the overall rate of gun related deaths is, on average, one tenth the rate in our country.[xviii] We further believe that there is overwhelming evidence that in order to reduce rates of gun related deaths and injuries in our country to levels comparable to those in the other advanced democratic countries of the world, we must adopt comparably stringent gun control laws. And in order to adopt such laws, we must overturn the rogue Heller decision and the progeny of Heller, including the 9th Circuit Court panel’s ruling in Duncan v. Becerra.
The Heller decision is worse than a “radical departure” from prior legal precedent; worse than a “snow job,” worse than “gun rights propaganda passing as scholarship;” worse than a “fraud on the American people;” worse, even, than “an abomination.” By creating a constitutional obstacle, where none previously existed, to the adoption of stringent gun control laws in the United States comparable to the laws in all the other high income democratic countries of the world, Heller is literally a death sentence for tens of thousands of Americans annually.
Other democratic countries like Australia[xix] and New Zealand[xx] have reacted swiftly and definitively to mass shootings by banning civilian ownership of all automatic and semi-automatic firearms. And Great Britain, which has one of the lowest rates of gun deaths in the world (1/52nd the rate in the United States), has gone a step further by banning all handguns.[xxi]
At a more fundamental level, though, the guiding policy for gun ownership in the United States is backwards as compared with all other high income democratic countries. In every other advanced democratic country, a person seeking to acquire a gun must first prove that he or she has a legitimate reason to own a firearm and can handle one safely before being allowed to purchase one. This kind of guiding policy is termed “restrictive.”[xxii] And most other advanced democratic countries, realizing that there is no net protective value in owning or carrying a gun, do not accept “self defense” as a legitimate reason for owning a firearm.[xxiii]
In the United States, however, even before the Heller decision created a constitutional right to keep a handgun in the home, it has long been the policy that anyone of a certain age who seeks to acquire a gun can legally do so unless the government can prove through a rudimentary background check that he or she falls into one or more narrow categories of persons being prohibited from owning firearms. This guiding policy is termed, “permissive.”[xxiv]
In order to reduce rates of gun related deaths and injuries in the United States to levels comparable to those in the other high income democratic countries of the world, we must change the guiding policy for firearm ownership in our country from a permissive one to a restrictive one – which brings us back to overturning the Heller decision, which effectively codified a permissive guiding policy for firearm ownership into the U.S. Constitution. Furthermore, we should enact bans on all automatic and semi-automatic long guns, for which there is no legitimate civilian use, just as Australia and New Zealand did; and we should follow the example of Great Britain and ban all handguns, which confer no net protective value to honest, law-abiding citizens, and which are the weapons used in approximately 80% of all gun related deaths in our country.[xxv]
Please make a contribution to Americans Against Gun Violence to support our efforts to overturn the Heller decision and adopt stringent gun control laws in the United States comparable to the laws in the other high income democratic countries of the world. Read on for more details.
Americans Against Gun Violence is the only national organization in our entire country that openly advocates overturning the Heller decision and adopting stringent gun control laws in the United States comparable to the laws in the other high income democratic countries of the world. In fact, one of the main reasons for our founding Americans Against Gun Violence in 2016 was to fill the need for such an organization. We were the only organization in the country to file an amicus curiae (friend of the court) brief in 2019 calling on the Supreme Court to take the opportunity of the case of the New York State Rifle and Pistol Association v. New York City (NYRPA v. NYC) to reverse the Heller decision. This was the first Second Amendment case that the Supreme Court had agreed to hear since the Heller case in 2008 and the related case of McDonald v. Chicago in 2010, in which the Court ruled that the Heller decision applied to the 50 states as well as to the District of Columbia. For better or for worse, given the current composition of the Supreme Court, New York City decided to repeal its strict laws concerning transporting handguns in the city before the Supreme Court heard oral arguments in the NYRPA v. NYC case, and the Court ended up declaring the case moot. Our amicus brief stands, nevertheless, as a landmark document on the Supreme Court docket, putting the Court on notice that we recognize the fraudulent nature of the Heller decision and that we will not allow this fraud to go unchallenged.
California Attorney General Becerra announced on August 28, 2020, that he is appealing to the 9th Circuit Court for an en banc review of the split decision by the three judge panel in the case of Duncan v. Becerra. If the Court grants his appeal, then the case will be reheard by Chief Judge Sidney Thomas, who was appointed by President Clinton, and ten other 9th Circuit Court judges drawn at random from the full 29 judge 9th Circuit Court, seven of whom are now Trump appointees.
The 9th Circuit Court of Appeals doesn’t have the authority to reverse or contradict the Supreme Court’s Heller decision, but it can note the multiple internal contradictions, gross misrepresentations of historical facts, and instances of circular reasoning in Scalia’s majority opinion, to which I’ve referred above; and in light of these serious problems with the Heller decision, it can apply Heller as narrowly as possible in the case of Duncan v. Becerra. In the Heller case, the Supreme Court was asked to answer the question of whether Washington DC’s partial ban on keeping handguns in the home violated the Second Amendment. The five member majority ruled – wrongly – that it did. There is no mention of LCM’s, though, in the Heller decision. Without reversing or contradicting Heller, the 9th Circuit en banc panel could simply state that neither the Second Amendment nor the Heller decision apply to California’s LCM ban.
Of greater nationwide importance, though, than ensuring that California’s LCM ban finally goes into effect, is the need to overturn the ruling by Judges Lee and Callahan to ensure that their ruling in Duncan v. Becerra and the horribly flawed reasoning behind this ruling don’t serve as precedents for other appeals court cases across the country. An en banc panel of the 9th Circuit Court should note the multiple egregious errors and distortions of the truth in Judge Lee’s majority opinion, including the misstatements of fact that Lee imported from Scalia’s majority opinion in the Heller decision; and the panel should emphasize the need to interpret the Heller decision as narrowly as possible in other appeals court cases. The en banc panel should also address the shocking and irresponsible implications by Judge Lee that civilian ownership of assault weapons is also a Second Amendment right and that members of minority groups in the United States should “exercise their Second Amendment rights” by acquiring such weapons in order to protect themselves from oppression.
If the 9th Circuit Court does grant Attorney General Becerra’s appeal for an en banc review of the August 14 ruling in Duncan v. Becerra – and court watchers expect that it will - we plan to file an amicus brief in support of the California LCM ban, but we will have only 21 days from the time that the appeal is granted to do so. Amicus briefs in Supreme Court and Appeals Court cases must be filed in a special format by attorneys who are members of the relevant federal court bars. Although we received considerable pro bono assistance in filing our amicus brief in the 2019 Supreme Court case of the NYRPA v. NYC, the process of filing the brief still cost us about $14,000. We need to raise a similar amount of money in order to be prepared to file an amicus brief in the case of Duncan v. Becerra. Please make a contribution now to Americans Against Gun Violence to help ensure that we are able to file an amicus brief in this important case and in other similar cases involving the Second Amendment. Americans Against Gun Violence is a 501(c)(3) nonprofit organization, and donations are tax deductible to the full extent allowed by state and federal tax regulations.
There are many other ways in which we can all work together to help stop the epidemic of gun violence that afflicts our country. Abraham Lincoln once said:
“Public sentiment is everything. With public sentiment, nothing can fail; without it, nothing can succeed. Consequently, he who molds public sentiment goes deeper than he who enacts statutes or pronounces decisions. He makes statutes and decisions possible or impossible to be executed.”
We can all exert an influence on public sentiment, day in and day out. One way is by contacting media outlets when they misrepresent issues related to gun violence, including the true history and intent of the Second Amendment. We need to teach print, radio, and TV journalists to replace terms like “Second Amendment advocates” and “gun rights organizations” with the terms, “gun control opponents” and “the gun lobby.” We also need to educate journalists, lawmakers, teachers, and members of the general public, as well as friends, family members, and colleagues, concerning the fact that there was no constitutional right, Second Amendment or otherwise, for anyone to own a gun in our country outside of service in a well regulated militia prior to the rogue 2008 Heller decision; and that we must overturn Heller in order to adopt stringent gun control laws in our country comparable to the laws that have long been in effect in all the other high income democratic countries of the world.
I don’t recommend arguing with ardent NRA supporters about gun control. I’ve come to the conclusion that just as there is no effective medical treatment for rabies once the infection has spread to the brain, there is no way to reason with rabid gun control opponents. At the same time, though, we should not allow this small segment of our population to control public policy or to claim the moral and patriotic high ground for hijacking and rewriting a constitutional amendment in order to support their pathological obsession with acquiring entire arsenals of firearms that are specifically designed to kill and maim large numbers of people in a short period of time.
Of course, we need to stay in touch with our elected officials and with candidates for office, particularly during this important election season. We shouldn’t let politicians get away with statements like, “I support the Second Amendment,” without clarifying to which version of the Amendment they’re referring – the original one, which begins with the phrase, “A well regulated militia being necessary to the security of a free state,” or the gun lobby’s rewrite, which effectively deletes that phrase.[xxvi] Similarly, we shouldn’t allow even the most progressive politicians to make statements such as, “I support sensible firearm regulations,” without pinning them down concerning whether they support overturning the Heller decision and adopting stringent gun control laws in our country comparable to the laws in other high income democratic countries, including a complete ban on civilian ownership of all automatic and semi-automatic firearms, comparable to the laws in Australia and New Zealand; and a complete ban on civilian ownership of handguns, comparable to the laws in Great Britain. And if they don’t support such measures, we should ask them why not, given the overwhelming evidence that the adoption of such laws would save tens of thousands of American lives annually.[xxvii]
And finally, for the benefit of future generations if not for our own, we must never give up. Judge Lee makes no mention of school shootings in his majority opinion in Duncan v. Becerra, nor does he make any other acknowledgement of the devastating impact that gun violence is having on our children and our youth. Children under the age of 15 in the United States are killed by guns at a rate that is 12 times higher than in the other industrialized countries of the world,[xxviii] and high school age youth are murdered by guns at a rate that is 82 times higher.[xxix]
We clearly face formidable obstacles in our mission to stop our country’s epidemic of gun violence - an epidemic that, unlike Covid-19, disproportionately afflicts our children and our youth – and it’s difficult to avoid becoming discouraged at times. I urge you, though, to read the heart wrenching essays of this year’s Americans Against Gun Violence National High School Essay Contest winners, which are posted on the High School Essay Contest page of our website, along with a moving video message from Dr. Michael North of Scotland who helped choose the winners in this year’s contest. Dr. North lost his five year old daughter, Sophie, in the mass shooting at the elementary school in Dunblane, Scotland in 1996. He subsequently helped lead a campaign that succeeded in achieving a complete ban on civilian handgun ownership in Great Britain. There hasn’t been another school shooting since the ban went into effect.[xxx] In his video message, Dr. North speaks about the importance of providing a platform for U.S. high school students to air their own perspectives concerning the epidemic of gun violence in our country. Dr. North also speaks about the hope that the students’ essays give him that the United States will one day take definitive action to stop this shameful epidemic.
After you read the students’ essays and view Dr. North’s message, I hope you’ll consider making a contribution to our High School Essay Contest Fund in order to help ensure that we’re able to offer the contest again in 2021, and I hope that you’ll also join me in pledging to redouble our efforts to prove through our actions, and not just our words, that we are a country that loves its children more than its guns.
Bill Durston, MD
President, Americans Against Gun Violence
Note: Dr. Durston is a board certified emergency physician and a former expert marksman in the U.S. Marine Corps, decorated for courage under fire during the Vietnam War.
[i] “Duncan v. Becerra, Court of Appeals, 9th Circuit 2020,” August 14, 2020, 22–23, https://scholar.google.com/scholar_case?case=6809998583405327539&q=Duncan+v.+becerra&hl=en&as_sdt=2006.
[ii] United States v. Cruikshank, 92 US 542 (Supreme Court 1876); Presser v. Illinois, 116 US (Supreme Court 1886); U.S. v. Miller, 307 U.S. 174 (1939) (n.d.); Lewis v. United States, No. 55 (U.S. 1980).
[iv] Lewis, 445.
[v] Warren Burger, PBS News Hour, December 16, 1991, https://vimeo.com/157433062.
[vi] District of Columbia v. Heller, 554 US (Supreme Court 2008).
[vii] “The Heller Decision and What It Means,” accessed July 10, 2017, http://smartgunlaws.org/gun-laws/the-second-amendment/the-supreme-court-the-second-amendment/dc-v-heller/.
[viii] Richard Posner, “In Defense of Looseness,” The New Republic, August 26, 2008, https://newrepublic.com/article/62124/defense-looseness.
[ix] Saul Cornell, “Originalism on Trial: The Use and Abuse of History in District of Columbia v. Heller,” Ohio State Law Journal 69 (2008): 625.
[x] John Paul Stevens, The Making of a Justice: Reflections on My First 94 Years (New York: Little, Brown, 2019), 482.
[xi] “Duncan v. Becerra, Court of Appeals, 9th Circuit 2020,” 25.
[xii] Julie Turkewitz, “Woman Injured in Las Vegas Shooting Dies 2 Years Later,” The New York Times, November 19, 2019, sec. U.S., https://www.nytimes.com/2019/11/19/us/las-vegas-shooting.html.
[xiii] “Duncan v. Becerra, Court of Appeals, 9th Circuit 2020,” 38.
[xiv] In 2018, the most recent year for which data are available, the rate of gun related homicides for persons classified as “Black” was 8 times the rate for persons classified as “White.” Police shootings accounted for 3% of gun homicides in “Blacks” and 8% of gun homicides in “Whites.” “Fatal Injury Data | WISQARS | Injury Center | CDC,” Centers for Disease Control and Prevention, accessed September 11, 2016, http://www.cdc.gov/injury/wisqars/fatal.html; “Fatal Force: Police Shootings Database,” Washington Post, accessed September 16, 2020, https://www.washingtonpost.com/graphics/investigations/police-shootings-database/.
[xv] “Duncan v. Becerra, Court of Appeals, 9th Circuit 2020,” 12.
[xvi] “Dylann Roof Said He Wanted To Start A Race War, Friends Say,” NPR.org, accessed September 16, 2020, https://www.npr.org/2015/06/19/415809511/dylann-roof-said-he-wanted-to-start-a-race-war-friends-say.
[xvii] Mark Follman, Gavin Aronsen, and Deanna Pan, “A Guide to Mass Shootings in America,” Mother Jones (blog), February 26, 2020, https://www.motherjones.com/politics/2012/07/mass-shootings-map/.
[xviii] Erin Grinshteyn and David Hemenway, “Violent Death Rates: The US Compared with Other High-Income OECD Countries, 2010,” The American Journal of Medicine 129, no. 3 (March 1, 2016): 266–73, https://doi.org/10.1016/j.amjmed.2015.10.025; Max Fisher and Josh Keller, “What Explains U.S. Mass Shootings? International Comparisons Suggest an Answer,” The New York Times, November 7, 2017, sec. Americas, https://www.nytimes.com/2017/11/07/world/americas/mass-shootings-us-international.html.
[xix] Philip Alpers, “The Big Melt: How One Democracy Changed after Scrapping a Third of Its Firearms,” in Reducing Gun Violence in America: Informing Policy with Evidence and Analysis (Baltimore: The Johns Hopkins University Press, 2013), 205–11; Rebecca Peters, “Rational Firearm Regulation: Evidence-Based Gun Laws in Australia,” in Reducing Gun Violence in America: Informing Policy with Evidence and Analysis (Baltimore: The Johns Hopkins University Press, 2013), 195–204.
[xx] “2019 Firearm Law Changes (Arms Amendment Bill 2),” New Zealand Police, accessed August 27, 2020, https://www.police.govt.nz/advice-services/firearms-and-safety/2019-firearm-law-changes-arms-amendment-bill-2.
[xxi] Michael J. North, “Gun Control in Great Britain after the Dunblane Shootings,” in Reducing Gun Violence in America: Informing Policy with Evidence and Analysis (Baltimore: The Johns Hopkins University Press, 2013), 185–93.
[xxii] George D. Newton and Franklin E. Zimring, “Firearm Licensing: Restrictive v Permissive,” Firearms & Violence in American Life: A Staff Report Submitted to the National Commission on the Causes and Prevention of Violence (Washington, D.C.: U.S. Government Printing Office, January 1, 1969).
[xxiii] “Gun Law and Policy: Firearms and Armed Violence, Country by Country,” GunPolicy.org, accessed November 18, 2019, https://www.gunpolicy.org/.
[xxiv] Newton and Zimring, “Firearm Licensing: Restrictive v Permissive.”
[xxv] Josh Sugarmann, Every Handgun Is Aimed at You: The Case for Banning Handguns (New Press, 2001).
[xxvi] Michael Waldman, “How the NRA Rewrote the Second Amendment,” POLITICO Magazine, May 19, 2014, http://www.politico.com/magazine/story/2014/05/nra-guns-second-amendment-106856.html.
[xxvii] North, “Gun Control in Great Britain after the Dunblane Shootings.”
[xxviii] “Rates of Homicide, Suicide, and Firearm-Related Death among Children--26 Industrialized Countries,” MMWR: Morbidity and Mortality Weekly Report 46, no. 5 (1997): 101–5.
[xxix] Ashish P. Thakrar et al., “Child Mortality In The US And 19 OECD Comparator Nations: A 50-Year Time-Trend Analysis,” Health Affairs 37, no. 1 (January 2018): 140–49, https://doi.org/10.1377/hlthaff.2017.0767.
[xxx] North, “Gun Control in Great Britain after the Dunblane Shootings.”