Ninth Circuit Refuses to Block Large Magazine Ban

Ninth Circuit Refuses to Block Large Magazine Ban Photo: Andrew Linnett via Wikimedia Commons The Glock 17 Gen4 handgun

A California city’s ban on large-capacity magazines in firearms went into effect on Thursday after a federal appeals court denied an emergency order brought by members of the National Rifle Association of America to halt its enforcement.

The city of Sunnyvale’s ban gave residents until Thursday to give up all magazines of more than 10-rounds capacity. Six residents, including NRA members, sued on Dec. 16 to block enforcement of that ban on Second Amendment ground. On Wednesday, U.S. District Judge Ronald Whyte, concluding that such magazines were “hardly central to self-defense,” denied their request for a preliminary injunction.

“Magazines having a capacity to accept more than ten rounds are hardly crucial for citizens to exercise their right to bear arms,” he wrote.

Late Wednesday, the plaintiffs asked the U.S. Court of Appeals for the Ninth Circuit to halt enforcement of the ban pending their appeal. Later that evening, the court denied the request without explanation.

“Because a fundamental right is implicated, we think there are grounds to stay enforcement of these ordinances while this larger constitutional issue is resolved in either the Ninth Circuit or Supreme Court,” said C.D. “Chuck” Michel, who represents plaintiffs in both Sunnyvale and San Francisco, where a similar ban that takes effect on April 7 is also under challenge. He said the NRA is financing both cases.

The bans in Sunnyvale and San Francisco represent the latest attempts to limit large-capacity magazines following the 2012 mass shooting at Sandy Hook Elementary School in Newton, Conn., which killed 26 people, mostly children.

“There is a lot of data out there showing that in mass shootings, large-capacity magazines have often been used,” said Tony Schoenberg, a partner at San Francisco’s Farella Braun + Martel who represents Sunnyvale pro bono.

Several states have passed regulations on such magazines, but none, according to Michel, “went so far as Sunnyvale and San Francisco,” which ban actual possession of the devices. Both ordinances go beyond California law, which prevents residents from buying or selling large-capacity magazines (a similar federal ban expired in 2004).

“That’s really problematic, because a lot of firearms don’t function without the magazines and, to a legal point, millions of Americans choose to have magazines for their firearms with 10 rounds because they believe, and we agree and have proven, they’re a more appropriate self-defense tool,” said Michel, of Michel & Associates in Long Beach, Calif. “Basically, you don’t want to run out of ammunition when your life is at stake.”

Michel is relying heavily on the U.S. Supreme Court’s 2008 decision in District of Columbia v. Heller, which upheld the Second Amendment right to possess a gun for self-defense in the home.

Michel, who argued in court papers that large-capacity magazines are common in pistols and rifles, said the Sunnyvale and San Francisco challenges “seek to have part of the Heller decision applied to protect the use of firearm components.”

But other courts have upheld such bans, Schoenberg said. “In each case, courts have found that there is an important objective on bans on large-capacity magazines, which is public safety,” he said.

In his order denying a preliminary injunction, Whyte noted that no court had struck down a similar ban. Although the magazines are protected under the Second Amendment, the hit to public safety outweighs the right of citizens to possess them, he wrote.

In the San Francisco case, filed on Nov. 19, U.S. District Judge William Alsup denied a preliminary injunction on Feb. 19, concluding: “On balance, more innocent lives will be saved by limiting the capacity of magazines.”

Contact Amanda Bronstad at abronstad@alm.com.

Note: This article was updated at 11:15 am Friday.

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