Ninth Circuit, 3 Judge Panel: Magazines Protected by Second Amendment
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Ninth Circuit Panel Ruling Holds California Magazine Ban UnconstitutionalU.S.A. –-(AmmoLand.com)- On 4 April, 2019, the Honorable Roger T. Benitez issued a stay on his finding the ban on magazines over 10 rounds was unconstitutional under the Second Amendment. The stay was issued pending an appeal to the Ninth Circuit. On 14 August, 2020, the three-judge panel issued their opinion. The three-judge panel of the Ninth Circuit upheld Judge Benitez confirming the magazine ban as unconstitutional. It was a split decision, with Judge Lee, appointed by President Trump, and Judge Callahan, appointed by President Bush, agreeing the ban on magazines is unconstitutional; and Judge Lynn, appointed by President Clinton, dissenting. Here is the link to the opinion by the three-judge panel. The opinion and dissent follow what has become the typical split in the courts on the power of the Constitution. One side claims words mean things, and limits on government power, placed in the Constitution, must be honored. The other side has dominated for 70 years. It has the essential Progressive view of the Constitution. In that view, the Constitution is infinitely malleable; the meaning of words can be changed as the current court deems necessary to adapt the Constitution to the meaning judges (or more properly, Progressives) wish it to mean at any time. If it is to the advantage of Progressives to uphold the First Amendment; it will be upheld. If it is to the advantage of Progressives to ignore or dismiss the Second Amendment; it will be ignored or dismissed. The essence of the opinion is expressed in these two paragraphs, taken from the text: As for prong one of our analysis, the record shows that LCMs are not subject to the exceptions announced in Heller. Magazines are protected arms, and larger capacity magazines are not unusual. LCMs have never been subject to longstanding prohibitions. And a historic analysis fails to persuade that LCMs otherwise fall outside constitutional protections. We hold that California Penal Code section 32310 burdens protected conduct and proceed to the second prong of the analysis. Stated another way, and reinforced in this paragraph: Put another way, a “substantial burden” on the Second Amendment is viewed not through a policy prism but through the lens of a fundamental and enumerated constitutional right. We would be looking through the wrong end of a sight-glass if we asked whether the government permits the people to retain some of the core fundamental and enumerated right. Instead, Heller counsels us to look at whether the government regulation restricts the core fundamental right from the outset. In other words, we look to what a restriction takes away rather than what it leaves behind. Here, California’s law takes away a substantial swath of the core constitutional right of self-defense because it bans possession of half of all magazines in America today, even though they are common in guns used for self-defense. In short, a law that takes away a substantial portion of arms commonly used by citizens for self-defense imposes a substantial burden on the Second Amendment. Lawyers (judges) are expert wordsmiths or they do not rise in their professions. When the Constitution confounds their purposes they can find a convoluted method of confounding the Constitution. Thus we have the complicated, absurd construct in the Ninth Circuit to find ways to effectively dismiss and neuter the Second Amendment. Judge Lynn attempts to use the construct in her dissent. Essentially, the dissent consists of these claims:
- Large capacity magazines are not arms
- The Second Amendment applies to magazines, but they are not central to the “core” of the Second Amendment
- The purposes of the government are more important;
- Therefore, intermediate scrutiny applies in this case;
- Intermediate scrutiny has, essentially, whatever meaning we assign to it;
- Therefore the Second Amendment does not apply to magazines that have over 10 rounds.
- Because, other circuits have already approved of this method to circumvent the Second Amendment.