A lot of water has poured over the dam since Judge Roger Benitez of the Southern District of California issued a preliminary injunction in 2017 against enforcement of California's ban on possession of a magazine holding over ten rounds. Since then, Duncan v. Becerra has been up and down the ladder from the district court to the Ninth Circuit for multiple panel and en banc decisions and then to the Supreme Court, which sent it back for reconsideration in light of Bruen. After Judge Benitez found that the ban is invalid under Bruen, the Ninth Circuit went directly en banc and for the third time upheld the ban.
"Third time's the charm" means you finally got something right, but here "third time isn't the charm," as the Ninth Circuit has now tripled-down in its resistance to the Second Amendment and to the Supreme Court's holdings. On March 20, the en banc court issued two opinions, one upholding the ban on the merits, and the other justifying its circumvention of en banc rehearing rules to allow five senior judges from the previous en banc court to participate again. I won't discuss that second decision here, but suffice it to say that it leaves the strong odor of the appearance of impropriety.
Authoring the majority's opinion on the merits, Senior Judge Susan Graber wrote: "Large-capacity magazines are optional accessories to firearms, and firearms operate as intended without a large-capacity magazine. A large-capacity magazine is thus an accessory or accoutrement, not an 'Arm' in itself. Possession of a large-capacity magazine therefore falls outside the text of the Second Amendment." But even if the text "encompasses the possession of [such] an optional accessory," its "especially dangerous uses" negate its protection.
