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Another from the 9th Circuit

Duncan v. Bonta, an en banc upholding California's ban on magazines holding more than ten rounds. More of the usual. It does get lively in the dissents and concurrences.

Judge Bumatay, dissenting (joined by two others):

"In reality, this tiers-of-scrutiny approach functions as nothing more than a black box used by judges to uphold favored laws and strike down disfavored ones. But that is not our role. While we acknowledge that California asserts a public safety interest, we cannot bend the law to acquiesce to a policy that contravenes the clear decision made by the American people when they ratified the Second Amendment."

"All this interest balancing is in blatant disregard of the Court's instructions. Nowhere in Heller or McDonald did the Supreme Court pick a tier of scrutiny for Second Amendment challenges. Nor did the Court compare the relative costs of firearms regulations to their potential public-safety benefits, adopt a sliding scale, look at alternative channels of self-defense, or see if there was a reasonable fit between the regulation and the state's objective. The absence of these balancing tools was not accidental. The Court made clear that such judicial balancing is simply incompatible with the guarantees of a fundamental right."

Judge VanDyke, dissenting:

"our court's Second Amendment jurisprudence can hardly be labeled angelic. Possessed maybe--by a single-minded focus on ensuring that any panel opinions actually enforcing the Second Amendment are quickly reversed. The majority of our court distrusts gun owners and thinks the Second Amendment is a vestigial organ of their living constitution. Those views drive this circuit's caselaw ignoring the original meaning of the Second Amendment and fully exploiting the discretion inherent in the Supreme Court's cases to make certain that no government regulation ever fails our laughably "heightened" Second Amendment scrutiny.

This case is par for the course. The majority emphasizes the statistical rarity of law-abiding citizens' need to fire more than an average of 2.2 shots in self-defense, but glosses over the statistical rarity of the harm that California points to as supporting its magazine ban."

Judge Hurwitz, concurring:

"I am reluctantly compelled to respond to the dissent of my brother Judge VanDyke, who contends that the "majority of our court distrusts gun owners and thinks the Second Amendment is a vestigial organ of their living constitution." That language is no more appropriate (and no more founded in fact) than would be a statement by the majority that today's dissenters are willing to rewrite the Constitution because of their personal infatuation with firearms."