Content warning: gun violence, abuse
As gun sales continue to surge across the country, California voters watched a 2016 gun safety measure get tossed out by a federal appeals court. On Aug. 14, a three-judge panel voted 2-1 to strike down a law restricting large-capacity ammunition magazines. The law was originally adopted by the California Legislature in 2000 and strengthened by voters as part of the Safety for All Act of 2016.
The law at issue prohibits ammunition feeding devices that allow a gun user to fire more than 10 bullets without pausing to reload. Voters adopted this measure because such large-capacity magazines, or LCMs, enable shooters to kill more victims more quickly. The state affiliate of the National Rifle Association challenged this law, arguing that restricting LCMs burdens the 2nd Amendment rights of law-abiding citizens.
In the Duncan v. Becerra ruling, the appeals court agreed with the NRA. As a lifelong Californian, I am deeply scared by this outcome — and not just because it will make it harder to prevent mass shootings. If the ruling stands, California will be unable to restrict the lethal accessories used in up to 40% of violent crimes and most of the deadliest mass shootings over the past 10 years. But the real damage of this decision is even more sweeping. It casts aside the safety of countless Californians, including survivors of domestic abuse; people targeted in hate crimes because of their race, sexuality or gender identity; and all the students currently at home, enjoying a temporary reprieve from the fear that they’ll be put in the crosshairs of a school shooter. All sacrificed to serve the gun industry and other special interests.
The two judges in the Duncan v. Becerra majority got it wrong. The majority’s opinion conflicts with the court’s own precedents and decisions by six other federal appeals courts that have maintained magazine limits under the 2nd Amendment. Authored by a judge appointed by President Donald Trump, the opinion is also striking in what it gets wrong about guns and self-defense. While the U.S. Supreme Court recognizes that the 2nd Amendment grants people the right to keep some firearms in their homes for self-defense, its rulings emphasize that this right is “not unlimited” and is “not a right to keep and carry any weapon whatsoever.”
California’s LCM law creates precisely the type of reasonable limitations the 2nd Amendment allows. Contrary to what the majority decided in Duncan v. Becerra, this law isn’t about self-defense at all. Experts in the Duncan case identified no instance in which any law-abiding Californian has ever needed to use an LCM in self-defense (the law lets people possess as many 10-round magazines as they want).
In brushing off the lack of connection between LCMs and self-defense, the panel majority elevated unsubstantiated fears of gun owners rather than Californians’ actual safety. While some gun owners might feel safer with unlimited access to the most lethal firepower, I think most Californians want to actually be safer from the mass shootings, hate crimes and gun violence that have become all too routine. Evidence tells us that protecting people from this type of violence is exactly what gun safety laws like those in California do.
I believe that had it correctly applied 2nd Amendment case law, the majority would have reached a different outcome. Before concluding that LCMs are essential for self-defense, the judges should have considered research showing that firearms are generally an ineffective means of self-defense and can perpetuate racial bias and police violence. As “stand your ground” laws prove, the impulse to fire rapidly at someone in “self-defense” contributes to race-motivated killings, as in the recent Ahmaud Arbery case.
On the other hand, the risks of using a gun in self-defense are also heightened for Black Americans, as they can find themselves in danger of being shot for exercising their 2nd Amendment rights. Lawful gun possession played a role in the killings of Philando Castile and Breonna Taylor. Similar risks are present for women being threatened by their intimate partners: Domestic abusers are five times more likely to kill their partners if a firearm is present in the home.
The panel majority should have acknowledged these realities, as well as the reams of evidence suggesting that gun violence would be less lethal if shooters lacked access to LCMs. Survivors of the shooting at Borderline Bar and Grill in Thousand Oaks were able to escape through a window while the shooter reloaded; he was using LCMs. How many more people would have run free if the gunman was forced to change magazines after 10 rounds?
The Duncan court ignored all this and instead approved a nearly unlimited right to use LCMs in self-defense, so long as the industry has marketed enough of them that they are “common” in the nation. No other federal appeals court has agreed with this extreme vision of the 2nd Amendment, which essentially gives the gun industry veto power over gun legislation.
I desperately want to live in a state where my physical safety is prioritized over faulty reasoning about self-defense rights, and I hope California’s attorney general will ask the full court to reconsider, and correct, the panel’s 2-1 ruling. But even if this outlier opinion is reversed, judges appointed to the federal bench in the last three years will continue to pose a threat to California’s lifesaving gun laws. The only way to stop this threat moving forward is to appoint judges who know that gun rights, like all other constitutional rights, are not unlimited. Laws protecting our safety can — and must — coexist with the 2nd Amendment.
Hannah Shearer is the litigation director at Giffords Law Center to Prevent Gun Violence.