Dissenting opinion by Circuit Judge Lawrence VanDyke

Duncan v. Bonta (United States Court of Appeals for the Ninth Circuit, Case No. 19-55376)

November 30, 2021

I largely agree with Judge Bumatay’s excellent dissent. And to paraphrase James Madison, if judges were angels, nothing further would need be said. But unfortunately, however else it might be described, 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. Instead of requiring the government to make an actual heightened showing, it heavily weighs the government’s claim that guns holding more than 10 rounds are dangerous (of course they are — all guns are) against a self-defense interest that the majority discounts to effectively nothing. Once again, our court flouts the Supreme Court’s exhortation against such a freestanding interest-balancing approach to the Second Amendment. District of Columbia v. Heller, 554 U.S. 570, 634 (2008).

If the Second Amendment is ever going to provide any real protection, something needs to change. I have some suggestions, which I offer below after first discussing some of the flaws in the majority’s analysis of this case.[1]

Footnote 1: Because Judge Bumatay’s dissent explains at length the shortcomings of the majority’s analysis, I provide only some supplemental observations.

Until the Supreme Court requires us to implement a paradigm shift, the Second Amendment will remain a second-class right — especially here in the Ninth Circuit.

It should be presumptively unconstitutional to burden constitutional rights. But looking at our court’s cases, you would assume that any burden on the right to bear arms is presumptively permitted. I’ve described before how our circuit’s version of Second Amendment heightened scrutiny has no height. It is practically indistinguishable from rational basis review. See Mai v. United States, 974 F.3d 1082, 1097–106 (9th Cir. 2020) (VanDyke, J., dissenting from denial of rehearing en banc). While our court gives lip service to Heller, its practice of effectively applying rational basis review ignores Heller’s admonition that if passing rational basis review was all that was required to overcome the right to keep and bear arms … the Second Amendment would be redundant … . Heller, 554 U.S. at 628 n.27.

The brokenness of our court’s balancing approach is particularly evident in this case, where the majority weighs rarity like lead when it favors the ban, but then weighs rarity like helium when it undermines California’s asserted interest. On one hand, the majority ignores the fact that California’s claimed reason for its ban — mass shootings — involves a harm that, while tragic and attention-grabbing, is thankfully extremely rare by any statistical metric. You are much more likely to be randomly injured or killed by a drunk driver than a mass shooter. But on the other hand, the majority emphasizes the rarity of any individual American’s use of ammunition in self-defense, latching onto California’s argument that only 2.2 rounds are used on average in a self-defense shooting, and concludes that any more rounds than that are thus outside the core of the Second Amendment.

We might call this Version 2.2 of the Second Amendment. It cannot be the right way to analyze an alleged violation of the right to bear arms. The average number of times that any law-abiding citizen ever needs to bear arms at all in a self-defense situation is far below one — most people will (thankfully) never need to use a gun to defend themselves. Thus, applying the majority’s rarity analysis, possession of a gun itself falls outside the core of the Second Amendment. But we know that cannot be true from Heller, where the Supreme Court determined self-defense … was the central component of the Second Amendment, notwithstanding the practical infrequency of any particular person’s need to actually defend herself with a gun. 554 U.S. at 599.

So the majority’s rarity balancing isn’t just lopsided — it starts from the wrong premise. We would never treat fundamental rights we care about this way, particularly those expressly enumerated in the Constitution. We don’t protect the free speech of the taciturn less than the loquacious. We don’t protect the free exercise of religion in proportion to how often people go to church. We wouldn’t even allow soldiers to be quartered only in those parts of your house you don’t use much. Express constitutional rights by their nature draw brighter and more prophylactic lines—precisely because those who recognized them were concerned that people like California’s government and the judges on our court will attempt to pare back a right they no longer find useful. This is the sentiment James Madison expressed in extolling the wisdom of descrying … the minute tax of 3 pence on tea, the magnitude of the evil comprized in the precedent. Let [us] exert the same wisdom, in watching agst every evil lurking under plausible disguises, and growing up from small beginnings. Madison’s Detached Memoranda, 3 Wm. & Mary Q. (3d ser.) 534, 557–58 (E. Fleet ed., 1946). The majority here extends our circuit’s practice of chipping away at a disfavored constitutional right, replacing the Second Amendment with their 2.2nd Amendment.

This case is the latest demonstration that our circuit’s current test is too elastic to impose any discipline on judges who fundamentally disagree with the need to keep and bear arms. I consequently suggest two less manipulable tests the Supreme Court should impose on lower courts for analyzing government regulations burdening Second Amendment rights, replacing the current malleable two-step, two-pronged inquiry with something that would require courts to actually enforce the second provision of the Bill of Rights.

First, the Supreme Court should elevate and clarify Heller’s common use language and explain that when a firearm product or usage that a state seeks to ban is currently prevalent throughout our nation (like the magazines California has banned here), then strict scrutiny applies. Second, the Court should direct lower courts like ours to compare one state’s firearm regulation to what other states do (here a majority of states allow what California bans), and when most other states don’t similarly regulate, again, apply strict scrutiny. Where many law-abiding citizens seeking to prepare to defend themselves have embraced a particular product or usage, or the majority of states have not seen a necessity to restrict it, real heightened scrutiny should be required instead of allowing our court to sloppily balance the citizen’s need against the government’s claimed harm.

No doubt these proposed tests are not perfectly satisfying — doctrinally or academically. Few actual legal tests are, since the application of legal rules happens in the messiness of the real world. Nor would these suggested tests address every situation. Judge Berzon observes, for example, that under the common use test I seek to invigorate, gun-adverse states like California will predictably react to new technologies by trying to kill the baby in the cradle — immediately banning any new technology before it can become commonly used. Perhaps so, but those are difficulties at the margin. Right now, as I discuss further below, we have a Second Amendment test that enables zero enforcement in this circuit. Ultimately, Judge Bumatay’s and Judge Berzon’s opinions converge at one very important point: neither our current two-step test nor any proposed alternative that allows much interpretative or balancing discretion will ultimately lead to consistent and rigorous enforcement of the Second Amendment — particularly with the many judges who disagree with its very purpose.[2]

Footnote 2: To be clear, I think Judge Bumatay has penned an exemplary dissent addressing text, tradition, and history. My objection is not that judges cannot do good analysis under this framework, but rather that without a more bright-line test there is far too much opportunity for manipulation, especially with a right as unpopular with some judges as the Second Amendment.

It’s now beyond obvious that you can’t expect our court to faithfully apply any Second Amendment test that allows us to exercise much discretion. Many fundamental rights are protected by more bright-line tests.[3]

Footnote 3: See David B. Kopel & Joseph G.S. Greenlee, The Federal Circuits’ Second Amendment Doctrines, 61 ST. LOUIS U.L.J. 193, 303 (2017) (Bright-line rules declaring certain government actions categorically unconstitutional, without the need for a means/ends test, are common in constitutional law. They are found in the First Amendment, Fifth Amendment, Sixth Amendment, Eighth Amendment, Tenth Amendment, and Fourteenth Amendment.) (footnotes omitted).

It’s past time we bring that to the Second Amendment.

I. The Majority Takes Our Circuit’s Heightened Scrutiny to a New Low.

I’ve observed before how, for Second Amendment cases, our circuit has watered down the reasonable fit prong of intermediate scrutiny to little more than rational basis review, starting by borrowing an inapt test from the First Amendment context and then weakening it with each passing case upholding government restrictions. Mai, 974 F.3d at 1101–04 (VanDyke, J., dissenting from denial of rehearing en banc). This case furthers that trend. Instead of demand[ing] a closer regulatory fit for a law that directly burdens a fundamental right, our en banc court fails to apply any real heightened scrutiny, or even just faithfully appl[y] the [heightened scrutiny] test as articulated in comparable First Amendment jurisprudence. Id. at 1104. Indeed, notwithstanding our court’s early commitment that we are … guided by First Amendment principles in applying the Second Amendment, Jackson v. City & Cnty. of San Francisco, 746 F.3d 953, 961 (9th Cir. 2014), it is telling that comparisons between the First and Second Amendment in this latest case have largely been dropped by the majority and relegated to concurring opinions — likely because it gets embarrassing and wearisome to constantly rationalize why we treat the Second Amendment so differently than its close constitutional neighbor.

In analyzing whether California’s magazine ban violates the Second Amendment, the majority here follows a now well-traveled path. It starts like many of our Second Amendment cases: by assuming, instead of deciding, that the Second Amendment even applies to California’s ban. See, e.g., Mai v. United States, 952 F.3d 1106, 1114–15 (9th Cir. 2020); Pena v. Lindley, 898 F.3d 969, 976 (9th Cir. 2018); Fyock v. City of Sunnyvale, 779 F.3d 991, 997 (9th Cir. 2015).[4]

Footnote 4: The majority claims that the current two-step inquiry faithfully adheres to Heller, since history, text, and tradition greatly inform step one of the analysis … . But this only illustrates my point about the malleability of our current framework. Our court consistently uses step one of our test to either: (1) wade through the complicated history to conclude the regulation does not burden conduct protected by the Second Amendment at all, see, e.g., Young v. Hawaii, 992 F.3d 765, 785 (9th Cir. 2021) (en banc) (As we might expect in this area, fraught with strong opinions and emotions, history is complicated, and the record is far from uniform.); or (2) as here, side-step this inquiry altogether by assuming the conduct implicates the Second Amendment, only to uphold the regulation at step two by applying an extremely loose balancing test (more on that below). It’s clear that history, text, and tradition are currently comatose in our circuit’s jurisprudence enforcing the Second Amendment — we only rely on it when deemed useful to support the conclusion that something falls outside our court’s illusory Second Amendment protection.

This itself is very telling. It emphasizes the practical vacuity of the second step in our court’s two-step test. The reason it is so effortless for our court to assume that the Second Amendment applies is because the plaintiff will always lose at our court’s step-two intermediate scrutiny. If we genuinely applied any form of heightened scrutiny, we would have to be more careful and concise about what activity or item warrants protection under the Second Amendment. And something is wrong when most of our court’s judges can’t bring themselves to say the Second Amendment actually covers anything beyond a Heller-style total handgun ban. It’s the judicial equivalent of holding your nose.

After the majority here assumes that California’s magazine ban implicates the Second Amendment at step one of our test, at step two it concludes that banning the most commonly purchased magazine used in handguns for self-defense only places a small burden on the exercise of the right to bear arms and thus only intermediate scrutiny applies. And by this point, we all know what that means: the regulation burdening the citizens’ Second Amendment rights always wins under our version of Second Amendment intermediate scrutiny. Repeatedly characterizing the legislation as a minimal burden, the majority decries any possible need for the banned magazines and relies heavily on the rarity of their full use in self-defense while giving no weight to the effectiveness of such magazines in self-defense.

Building on this rationale, Judge Graber’s concurrence provides a list of unrealistic alternatives one could use in lieu of a higher-capacity magazine: carry multiple guns; carry extra magazines; carry some loose rounds in your pocket; carry a cop (okay, I made that last one up). I doubt many who actually carry a gun for self-defense would find these alternatives realistic. And the majority references no heightened showing made by the government, other than listing past tragic events across the nation in which criminals misused guns. Those events were, of course, horrific. But citing select (and in this case, statistically very rare) examples of misuse cannot be a basis to overcome the Second Amendment. If it was, then the much more prevalent misuse of guns in criminal activity generally would suffice to ban all guns. That is why, when applying real heightened scrutiny, a substantial relation is necessary but not sufficient. Ams. for Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2384 (2021) (applying exacting scrutiny in a First Amendment case).

The truth is that what our court calls intermediate scrutiny when reviewing Second Amendment cases doesn’t even rise to the level of real rational basis review. That’s a bold claim, I know. But think about it: if your state banned all cars, forcing all its citizens to use bicycles because many people are killed by drunk drivers (not to mention automobile accidents generally), would you think that was rational? No. What if California just banned all large vehicles (trucks, vans, etc.) because on rare occasions some crazed individual intentionally drives his car into a group of people, and large cars presumably do more damage? I doubt it. But that is what California has done here — banned a type of firearm magazine that has obvious self-defense benefits when used against a group of assailants, based on a purported harm that, while high-profile, is statistically extraordinarily improbable.[5]

Footnote 5: By emphasizing their statistical rarity, I do not belittle the tragedy experienced by those affected by a mass shooting (any more than observing that airline crashes are thankfully rare detracts from the heartbreak of those involved when they happen).

Much more improbable than harm from misuse of a car. And while cars are not expressly protected by the Constitution, arms are.[6]

Footnote 6: Characterizing my car ban analogies as inapt, the majority says that California’s magazine ban is more akin to speed limits. But in attempting to trade my analogies for a more favorable one, the majority misses the obvious point: that in every context except our distorted Second Amendment jurisprudence, everyone agrees that when you evaluate whether a response to avoid some harm is rational — much less a reasonable fit — you take into account both the gravity of the possible harm and the risk of it occurring. The majority here completely ignores the latter. Perhaps if I use the majority’s own analogy it might click: If California chose to impose a state-wide 10 mph speed limit to prevent the very real harm of over 3,700 motor-vehicle deaths each year experienced from driving over 10 mph, no one would think such a response is rational — precisely because, even though the many deaths from such crashes are terrible, they are a comparatively rare occurrence (although much more common than deaths caused by mass shootings).

The reason I think most of my colleagues on this court would genuinely struggle more with a car ban than they do with a gun ban is that they naturally see the value in cars. They drive cars. So they are willing to accept some inevitable amount of misuse of cars by others. And my colleagues similarly have no problem protecting speech — even worthless, obnoxious, and hateful speech[7] — because they like and value speech generally.

Footnote 7: See, e.g., Sable Commc’ns of Cal., Inc. v. F.C.C., 492 U.S. 115, 126 (1989) (indecent … [expression] is protected by the First Amendment); Nat’l Socialist Party of Am. v. Vill. of Skokie, 432 U.S. 43, 44 (1977) (per curiam) (protecting the First Amendment rights of Nazis to protest).

After all, they made their careers from exercising their own speech rights. On the other hand, as clearly demonstrated by this case, most of my colleagues see limited lawful value in most things firearm-related.

But the protections our founders enshrined in the Bill of Rights were put there precisely because they worried our future leaders might not sufficiently value them. That is why our court’s intermediate scrutiny balancing approach to the Second Amendment is no more appropriate here than it would be for any other fundamental right. As the Supreme Court explained in rejecting Justice Breyer’s interest-balancing approach, noting that no other enumerated constitutional right[’s] … core protection was subject to such a test,

[t]he very enumeration of the right takes out of the hands of government — even the Third Branch of Government — the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.

Heller, 554 U.S. at 634–35.

The majority repeatedly denies that it is engaging in the type of judge-empowering interest-balancing inquiry rejected in Heller, insisting instead that it is merely applying our traditional test in this case. It’s doing both. Our traditional two-part test is a judge-empowering interest-balancing inquiry. It’s a convoluted, multi-step balancing test that weighs different considerations at different times so as to give judges maximum discretion and mask when they treat the same considerations differently at the various stages of the balancing (like here). When one steps back and evaluates our current Second Amendment test, it is clear the court is engaging in an interest-balancing test — it’s just that the balancing is done in two or more steps instead of all together.

What we call our two-step test really has three parts, since the second step is divided into two parts. A play in two acts, so to speak. Step II, Part I: the court determines the proper level of scrutiny, which includes weighing the severity of the law’s burden on the right. Step II, Part II: the court then applies the appropriate level of scrutiny (which, in our court’s case, is always intermediate), where the court weighs the government’s interest in the regulation (including reasonable fit). An ever-adapting script, it is always these two competing interests that drive the court’s analysis. Ultimately, the court is comparing the plaintiff’s burden against the state’s interest. If the burden on the plaintiff’s Second Amendment rights is great (i.e., near the mythical core of the Second Amendment), then the government is (theoretically) required to make a stronger showing of its interest and fit. And vice-versa. Like a good Marvel movie, there’s always lots of drama, but the result is fore-ordained.

This particularly pernicious balancing test is a shell game. The balancing is done piecemeal so that the court can use differently weighted scales at each step and obfuscate the stark disparity between how it weighs the impact from the claimed violation of an express constitutional right, versus how it weighs the government’s justification and the regulation’s fit. When weighing the impact on the elusive core of the Second Amendment, the court whips out a scale specially calibrated to always read minimal burden (unless the government officials were dumb enough to do exactly the same thing Washington, D.C. and Chicago did in Heller and McDonald: entirely ban all handguns). But when it comes time to weigh the government’s interest and the reasonableness of the regulation’s fit under intermediate scrutiny, the court puts away the first scale and pulls out a different scale calibrated to always read close enough, even where, as here, the fit between the ban and the ultrarare harm asserted is not even rational.

The majority acknowledges that, applying our super-pliable test, we have not struck down any state or federal law under the Second Amendment. But it insists we have carefully examined each challenge on its own merit. If every case without fail leads to the same anti-firearms conclusion, however, then at some point it begs credulity to deny that something else is driving the outcomes.

Judge Hurwitz has penned a short concurrence respectfully characterizing as inappropriate and hyperbolic my observations regarding how my colleague’s personal views influence our court’s Second Amendment cases. I agree that it is a troubling charge to posit personal views as a driving force behind judicial decision-making and not one I make lightly. But whatever else it may be, my claim is hardly hyperbolic. Here are the facts: We are a monstrosity of a court exercising jurisdiction over 20% of the U.S. population and almost one-fifth of the states — including states pushing the most aggressive gun-control restrictions in the nation. By my count, we have had at least 50 Second Amendment challenges since Heller — significantly more than any other circuit — all of which we have ultimately denied. In those few instances where a panel of our court has granted Second Amendment relief, we have without fail taken the case en banc to reverse that ruling. This is true regardless of the diverse regulations that have come before us — from storage restrictions to waiting periods to ammunition restrictions to conceal carry bans to open carry bans to magazine capacity prohibitions — the common thread is our court’s ready willingness to bless any restriction related to guns. Respectfully, Judge Hurwitz’s claim that our judges’ personal views about the Second Amendment and guns have not affected our jurisprudence is simply not plausible. Res ipsa loquitur.

Judge Hurwitz’s own concurrence demonstrates this reality. In defending the validity of California’s interest, he doesn’t dispute that mass shootings are infrequent, but expressly dismisses that reality as irrelevant. Why? Because, in his view, hardly anyone is untouched by the[] devastation. His proof? A very personal anecdote about losing our beloved colleague to a mass shooting. No one disputes the depth of that tragedy, which is exactly why such uncommon occurrences nonetheless deeply influence my colleagues’ views about gun control and the Second Amendment. But the fact that members of our court have been personally affected by a mass shooting is not a legitimate reason to ignore the undisputed statistical rarity when weighing the government’s interest in its ban — it falls in the same category as choosing to drive instead of flying because you know someone who was tragically killed in a rare commercial airline accident. As a personal psychological phenomenon, such exaggeration of risks is completely understandable. As a legal matter, it should have no place in applying fundamental constitutional rights, including the Second Amendment. And just as irrelevant is Judge Hurwitz’s reliance on yet more personal anecdotes — that [o]ther members of the Court have lost family and friends to gun violence — that are entirely unrelated to mass shootings. Defending California’s regulation by sharing such deeply personal examples only demonstrates just how hard it is for any judge, including my esteemed and talented colleagues, to evaluate these cases in the objective and detached manner required when the legal test itself offers no meaningful guide rails.

It is important to emphasize that I point to my valued colleagues’ personal views not to engage in some unrelated ad hominem attack, but rather because the impact of those views is directly relevant to the purpose of this dissent. When judges are effectively told to balance the necessity for some particular gun-control regulation against that regulation’s effect on the core of the Second Amendment, there isn’t much for the judges to work with other than their own personal views about guns and the Second Amendment. Whether judges intend to bring in their personal views or not, those views inescapably control our holdings when applying a test as malleable as our Second Amendment intermediate scrutiny standard. Without rules that actually bind judges, personal intuition inescapably fills the void. The result of individual judges applying a formless test is a world where equality of treatment is difficult to demonstrate and, in a multi-tiered judicial system, impossible to achieve … . Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 1182 (1989).

Instead of striving to avoid this inequality of treatment, the majority highlights the inequality among the circuits as a defense of our current two-step approach. They do this by citing one case to show our sister circuits, applying the same two-step inquiry that we apply today, have not hesitated to strike down provisions that go too far. This again bolsters my point. Because the prevailing two-step balancing test is so malleable and discretionary, one would expect that different judges with different conceptions of guns and gun rights would weigh the different considerations differently and come to different conclusions.[8]

Footnote 8: The majority defends our undefeated, 50–0 record against the Second Amendment by pointing out that the states in our circuit simply have more restrained gun-control laws than the states in other circuits. While the majority is apparently serious, this claim can’t be taken seriously given that our circuit’s jurisdiction includes states like California and Hawaii — which have enacted many of the most aggressive gun-control laws in the nation. The majority’s failure to comprehend that reality underscores my point that something other than objective and impartial application of the two-part test is driving the outcomes in our Second Amendment cases.

Until the Supreme Court forces our court to do something different than balance our view of the utility of some firearm product or usage against the government’s claimed harm from its misuse, the Second Amendment will remain essentially an inkblot in this circuit.

II. The Majority’s Second Amendment Scales Are Rigged.

Not content to just tilt the rules of the game heavily in the government’s favor via our pathetically anemic intermediate scrutiny, the majority here also stacks the evidentiary deck. The majority balances the average rarity of the use of ammunition in lawful self-defense situations as weighing heavily against its protection under the Second Amendment. Meanwhile, it studiously ignores the rarity of the harm (mass shootings) that California puts forward to support its ban. As explained, such balancing should have no place in a case like this — the founders already settled the weighty interest citizens have in lawfully bearing commonplace self-defense arms like those California has banned here. But the stark disparity between how the majority treats the very same attribute depending on whether it supports or undercuts the majority’s desired outcome illustrates well that, even if we thought balancing might have a proper role in evaluating our Second Amendment rights, we can’t expect judges who fundamentally disagree with the Second Amendment to fairly read the scales.

The reality is that essentially everything the Second Amendment is about is rare, for which we all should be very grateful. Government tyranny of the sort to be met by force of arms has been, in the short history of our country, fortunately rare. The actual need for any particular person to use her firearm to defend herself is, again, extremely rare — most of us will thankfully never need to use a gun to defend ourselves during our entire life.[9]

Footnote 9: Observing the rarity does not diminish the fact that thousands of citizens use their firearms for lawful self-defense each year. It simply means that as a percentage of the population generally, or even lawful gun owners, that percentage is tiny.

And in those rare instances where a firearm is used in self-defense, the amount of ammunition needed is generally very little — oftentimes none at all. It is certainly true that most of us will use exactly zero rounds of ammunition to defend ourselves — ever. So if the Second Amendment protects anything, it is our right to be prepared for dangers that, thankfully, very rarely materialize.

Given that, the majority’s focus on the fact that only 2.2 bullets are used on average in a self-defense shooting, and concluding that a law banning more than that interferes only minimally with the core right of self-defense, is grossly misplaced.[10]

Footnote 10: California currently allows more than 2.2 rounds in a magazine, and does not prohibit carrying multiple magazines. But don’t be fooled. Under the majority’s Version 2.2 of the Second Amendment, there is no reason a state couldn’t limit its citizens to carrying a (generous) 3 rounds total for self-defense.

An average of 0.0 rounds are fired on average in preventing government tyranny. And the average person will fire an average of 0.0 rounds in self-defense in their entire lifetime. If the rarity alone of exercising one’s Second Amendment rights cuts so dispositively against their protection, then the Second Amendment protects nothing.

Yet when it comes to the uncommonness of mass shootings — the reason California says it needs its magazine ban — the majority counts that as nothing. You would think that if the government seeks to interfere with a fundamental right, the infrequency of the claimed harm would be a very important consideration. For example, if the government sought to ban some type of communication because it very infrequently resulted in harm, we would never countenance that. On the other hand, where some type of communication frequently results in harm, it might survive heightened scrutiny (e.g., fighting words).

Here, California relies on a statistically very rare harm as justifying its ban, but a harm that, while infrequent, grabs headlines and is emotionally compelling. The emotional impact of these tragedies does all the work for the government and our court. But if a court was going to balance a fundamental right against a claimed harm, that is precisely where judges must cut through the emotion and do their job of holding the government to its (supposedly heightened) burden. The majority here doesn’t even try.[11]

Footnote 11: The majority implies that by emphasizing the rarity of mass shootings, I omit the other relevant part of the analysis: the incredible harm caused by mass shootings. I’m not ignoring the incredible harm; I’m simply saying that, just as we do with all serious harms, we must evaluate the seriousness of that harm along with the probability of it occurring. For example, no one doubts that commercial airline crashes, when they occur, result in incredible harm. And yet no government has seriously considered banning commercial flights. Why? Because airplane crashes are extremely rare — just like mass shootings. The majority’s response — doubling down on its emphasis of the harm while continuing to intentionally avoid its rarity — demonstrates that it is the majority, not me, that omits … [a] critical part of the analysis.

The majority’s uneven treatment of rarity is not the only example where its anti-Second Amendment bias shows through in how it reads the record. The majority questions whether law-abiding citizens even want higher capacity magazines for self-defense, speculating whether circulation percentages of a part that comes standard with many firearm purchases meaningfully reflect an affirmative choice by consumers. But such musings only reveal a clear lack of knowledge about guns — or even basic economics, apparently. In free countries like this one, unless a market is interfered with by regulations like the one at issue in this case, it generally provides what consumers want. The market for self-defense firearms is no exception. Until only a few years ago, if you wanted a micro-compact firearm for self-defense (of the type that serves little or no military usage), you were generally limited to a six to eight-round magazine capacity. For example, the KelTec P3AT came with a six-round magazine, as did the Ruger LCP, Glock 43, Kimber Solo, and Walther PPK (of James Bond fame). The Kahr PM9 and Sig Sauer P238 offered six or seven-round magazines, while the Smith & Wesson M&P Shield came with seven or eight rounds. Not too long ago, it was basically impossible to find a lightweight, micro-compact firearm even capable of holding 10 rounds in its magazine.

Then, in 2019, Sig Sauer released the P365, which took the self-defense market by storm because suddenly law-abiding citizens could have the same size micro-compact firearm, but now carrying 12 or 15 rounds in its magazine. Other companies quickly followed suit, with Springfield Armory releasing the Hellcat (11 to 13-round magazines), Ruger releasing the Max-9 (12+1), Smith & Wesson releasing the M&P Shield Plus (13+1), and Kimber releasing the R7 Mako (13+1). Aftermarket magazine manufacturers like Shield Arms released flush-fitting magazines holding 15 rounds for diminutive guns like the Glock 43x and 48.

All this has happened in just the past few years, in a segment of the firearms market that has essentially no military application. It has happened because many law-abiding citizens want higher-capacity magazines for one purpose: self-defense. The majority’s odd speculation that maybe the self-defense market doesn’t want higher capacity magazines is as uninformed as wondering why cruise-control comes standard on their cars since nobody in their urban neighborhood wants it.

While the majority is happy to engage in ill-informed speculation when it comes to limiting gun rights, it demonstrates a distinct lack of imagination and basic logic when it comes to understanding why so many citizens desire a magazine holding over 10 rounds. First, the majority posits a classic false dilemma (a.k.a. an either-or fallacy) by waxing on at length about how larger magazines provide significant benefits in a military setting, not self-defense. Of course, almost every attribute of a weapon that makes it more effective for military purposes also makes it more effective for self-defense: more accurate, faster firing, the ability to engage multiple targets quickly — these are all characteristics of a weapon that make it better for both military and self-defense purposes. The majority’s fixation on the effectiveness of higher-capacity magazines in the military context does not somehow demonstrate that the magazines are not also useful for self-defense.

The majority relatedly adopts California’s argument that magazines over 10 rounds are dangerous when misused. Again, essentially every attribute of a weapon that makes it more effective for self-defense makes it more dangerous when misused. Good sights on a handgun make it more effective for lawful self-defense — but also make it more dangerous when misused. A pistol that doesn’t malfunction is really nice to have in a self-defense situation — but is also more dangerous when misused. Modern hollow-point ammunition, with its dramatically increased stopping potential, has seriously improved the performance of handguns in a self-defense situation — but of course also make the handgun more dangerous when misused. This type of logic, applied the way the majority does, would justify banning all semi-automatics since they are more dangerous than revolvers, all revolvers since they are more dangerous than derringers, all derringers since they are more dangerous than knives … until we are left with toothpicks. That is why the Supreme Court in Heller only talked about weapons that are both dangerous and unusual being outside the purview of the Second Amendment. 554 U.S. at 627 (emphasis added) (citation omitted). The mere fact that some attribute (like a larger capacity magazine) might make a weapon more dangerous when misused cannot be a basis to avoid the Second Amendment — if so, the Second Amendment protects only nerf guns.

The majority also latches onto California’s argument that mass shootings often involve large-capacity magazines. That is hardly surprising, given that, as the majority itself acknowledges, [m]ost pistols are manufactured with magazines holding ten to seventeen rounds, and many popular rifles are manufactured with magazines holding twenty or thirty rounds (citation and internal quotation marks omitted). So, in other words, mass shootings involve the most common types of firearms. This is the sort of evidence that suffices to meet our circuit’s heightened review under the Second Amendment?

The majority also relies on the argument that limiting magazine capacity provides precious down-time during reloading, giving victims and law enforcement officers time to fight back. But here again, that same down-time applies equally to a mother seeking to protect herself and her children from a gang of criminals breaking into her home, or a law-abiding citizen caught alone by one of the lawless criminal mobs that recently have been terrorizing cities in our circuit. The majority focuses only on ways higher capacity magazines might cause more harm in the very rare mass shooting, while dismissing the life-threatening impact of being forced to reload in a self-defense situation as a mere inconvenience, and characterizing as mere speculat[ion] … situations in which a person might want to use a large-capacity magazine for self-defense.

Ultimately, it is not altogether surprising that federal judges, who have armed security protecting their workplace, home security systems supplied at taxpayer expense, and the ability to call an armed marshal to their upper-middle-class home whenever they feel the whiff of a threat, would have trouble relating to why the average person might want a magazine with over ten rounds to defend herself. But this simply reinforces why those same judges shouldn’t be expected to fairly balance any Second Amendment test asking whether ordinary law-abiding citizens really need some firearm product or usage.

III. The Supreme Court Needs to Constrain Lower Courts’ Discretion.

We need tests that require real heightened scrutiny and will pull our courts out of the habit of inverted deference to burdens on Second Amendment rights. In that vein, I propose several less-discretionary tests the Supreme Court should impose to cabin my errant brethren.

A. Common Use

My first proposal is for the Supreme Court to put real teeth into a consideration that has been around since at least as far back as 1939 when the Supreme Court noted that the Second Amendment’s reference to the Militia signified that the arms referenced by that provision are those of the kind in common use at the time. United States v. Miller, 307 U.S. 174, 179 (1939). Again in Heller, the Court reiterated that the sorts of weapons protected by the Second Amendment are those in common use at the time. 554 U.S. at 627 (quoting Miller, 307 U.S. at 179). Reinforcing this precedent, the Supreme Court should make clear that any regulation that prohibits a firearm product or usage that is in common use nationally must pass strict scrutiny. Not only would that curtail lower courts’ abuse of their discretion in applying the Second Amendment, but it would also help address a perennial line-drawing difficulty inherent in the right to keep and bear arms.

One of the ongoing problems with defining the contours of any constitutional right is determining how it applies to technologies that did not exist when the constitutional provision was enacted. For example, how does the First Amendment apply to social media or blog posts? But that problem is particularly vexing in applying the Second Amendment because arms by their very nature change over time as technology advances. As the Court in Heller correctly observed, the Second Amendment does not protect only those arms in existence in the 18th century … . We do not interpret constitutional rights that way. Id. at 582. But while we know that the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding, id. (emphasis added), in an age where weapons run the gamut from fighter jets to tanks to fully-automatic machine guns to AR-15s to handguns to pocketknives, which weapons are protected by the Second Amendment and which are not? As this case and others like it demonstrate, we cannot rely on insular federal judges to weigh which weapons are appropriate for self-defense — they honestly don’t have a clue, and their intuitions about firearms are not good. And we can’t rely on governments to decide — that’s who the Second Amendment was intended to protect against. But as Heller discusses, we can look to what weapons law-abiding citizens have chosen to defend themselves — that is, what weapons are currently in common use … for lawful purposes. Id. at 624 (internal quotation marks omitted).

Here, law-abiding citizens across the nation have purchased literally millions upon millions of the type of magazines that California has banned. Americans currently possess between seventy to one hundred million of those magazines for self-defense.[12]

Footnote 12: 67% of gun owners say self-defense is a major reason why they own their firearm. See Kim Parker, et al., The demographics of gun ownership in the U.S., PEW RESEARCH CENTER (June 22, 2017); see also Christopher S. Koper et al., An Updated Assessment of the Federal Assault Weapons Ban: Impacts on Gun Markets and Gun Violence, 1994–2002, (June 2004).

The majority here concludes that banning them is a small burden on the Second Amendment because they provide at most a minimal benefit for civilian, lawful purposes. Millions of our fellow Americans disagree with my seven colleagues in the majority, evincing by their purchase and keep[ing] of those magazines that they consider them necessary for self-defense. That should count for something — actually, it should count for a lot, especially for a constitutional guarantee that ostensibly protects the right of the people to keep and bear arms. As the Heller Court explained in rejecting the argument that handguns could be banned because rifles weren’t, it was enough to note … that the American people have considered the handgun to be the quintessential self-defense weapon. Id. at 629. That same rationale should apply for any firearm product or usage that law-abiding citizens across the nation have chosen for self-defense.

B. State Law Survey

A government should also have to meet strict scrutiny if it bans a firearm product or usage that is allowed throughout most of our nation. If most of the states in the Union allow a particular item to be used in the course of exercising a Second Amendment right, then the government’s justification for forbidding or restricting that item or usage should be subjected to strict scrutiny.

Our court has often cited the practice of other states when it suits its purpose in analyzing constitutional rights. See, e.g., Young, 992 F.3d at 805 (analyzing the Second Amendment, the court observed [i]n contrast to these states, other states — also from the South — upheld good-cause restrictions on the open carry of certain dangerous firearms); Family PAC v. McKenna, 685 F.3d 800, 811 n.12 (9th Cir. 2012) (First Amendment); S. Or. Barter Fair v. Jackson County, 372 F.3d 1128, 1131 (9th Cir. 2004) (First Amendment); Cammack v. Waihee, 932 F.2d 765, 766–67 (9th Cir. 1991) (Establishment Clause). Indeed, the majority does so here, strangely observing that California is not alone because a few other states and local governments also ban some magazines (even though a super-majority of states don’t).

The majority’s instinct that it makes sense to look at other states is right; its execution is just wrong. The fact that a handful of states similarly regulate should not help justify infringement of a fundamental right. But the fact that most other states — here, 41 states and the federal government — don’t similarly regulate should cause a court to suspect that maybe the government’s supposed justification for its ban is lacking.

Like looking at common use, considering other states’ regulation would have at least one serious incidental side-benefit: it would reduce the troubling balkanization that currently afflicts a fundamental right supposedly protected by the Constitution. Right now, a lawful gun owner's ability to lawfully keep and bear arms is subject to a widely varying patchwork quilt of state and local restrictions and bans that would be an embarrassment for any other constitutional right. Requiring governments to satisfy real heightened scrutiny before they step too far out of line with what is working in most other jurisdictions would help deter states like California from using their laboratory of democracy to conduct ongoing experiments on how to subject a fundamental right to death by a thousand cuts. See Teixeira v. Cty. of Alameda, 873 F.3d 670, 694 (9th Cir. 2017) (en banc) (Tallman, J., concurring).

Our court is fond of saying that Second Amendment rights are not absolute. See, e.g., Young, 992 F.3d at 793; Silveira v. Lockyer, 312 F.3d 1052, 1063 (9th Cir. 2002) abrogated on other grounds by Heller, 554 U.S. 570; United States v. Vongxay, 594 F.3d 1111, 1117 (9th Cir. 2010). I don’t disagree with that truism — I just disagree with our court’s reliance on it to uphold every single firearm regulation, ever. Requiring that any regulation that prohibits a firearm product or usage in common use must pass strict scrutiny would not mean that a government would be helpless to address substantial genuine threats from weapons or uses protected by the Second Amendment. It would just mean that those governments would actually need to make a real heightened showing of harm, and a response that is narrowly tailored to that harm. That shouldn’t be asking too much for a constitutionally protected right.

If ever there was a case study illustrating Madison’s concern about evil lurking under plausible disguises, and growing up from small beginnings, it is our circuit’s Second Amendment jurisprudence. In the thirteen years since the Supreme Court ruled in Heller that the Second Amendment guarantee[s] the individual right to possess and carry weapons in case of confrontation, 554 U.S. at 592, our court has trimmed back that right at every opportunity — to the point that now, in the nine Western states covered by our court, the right to keep and bear arms means, at most, you might get to possess one janky handgun and 2.2 rounds of ammunition, and only in your home under lock and key.

That’s it.

That’s ridiculous, and so I must respectfully dissent.