The Right to be Armed: The Ninth Circuit Giveth Then Taketh Away Commentary
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The Right to be Armed: The Ninth Circuit Giveth Then Taketh Away
Edited by: Austin Koltonowski

The joy and amazement Second Amendment supporters felt in July at two Ninth Circuit Appeals Court [Official website] opinions were dashed in August when, in Pena v. Lindley [PDF, text] the Ninth Circuit upheld California’s Unsafe Handgun Act banning purchase of new handguns that lack technology no current gun has and no manufacturer is contemplating. Although the two July opinions were modest and commonsensical, the Pena opinion blatantly defies the Supreme Court’s ruling in District of Columbia v. Heller [PDF, text] that there is a right to keep and bear those guns in common use for self-defense and other lawful purposes.

Before turning to the Pena decision it’s helpful to take a quick look at the two Ninth Circuit opinions that adhered to the Supreme Court’s affirmation of the right to keep and bear arms. On July 17th in Duncan v. Becerra [PDF, text] a panel of the Ninth Circuit Court of Appeals blocked California’s confiscation of “large-capacity” magazines, those holding more than ten rounds. While these magazines had been banned by the state in 2000, California had permitted the hundreds of thousands of owners in the state who already had them to keep them. But the new law criminalized possession of these legally purchased magazines and required owners to get rid of them by sending them out of the state, destroying them, altering them to hold less than ten rounds, or turning them in to the police. Refusal risked fines of $100 and up to a year in jail. In imposing the injunction the district judge pointed out that the state’s “desire to criminalize simple possession of a firearm magazine able to hold more than 10 rounds is precisely the type of policy choice that the Constitution takes off the table.” Now, a year later, the Court of Appeals has upheld that injunction finding “the right to possess firearms for protection implied a corresponding right to obtain the bullets necessary to use them” and that the new law deprived Plaintiffs “not just of the use of their property, but of possession, one of the most essential sticks in the bundle of property rights.”

Young v. State of Hawaii [PDF, text] the second victory, was less impressive than it seemed and demonstrates the lengths to which states have gone to abridge the right to bear arms. Both California and Hawaii ban [California Penal Code 26350] open carry of firearms, but also strictly limit the ability to carry a concealed weapon. Should an applicant for a concealed carry permit convince the Hawaiian police he or she has reason to fear specific injury, the license is good only within the county issuing the permit. When George Young, a Hawaiian resident, was unable to persuade the police and district court of his need to carry a concealed weapon for self-defense, he sued for the right to carry a firearm openly. In July two of the three Appellate Court judges who heard the case agreed “The right to bear arms must include, at the least, the right to carry a firearm openly for self-defense” and remanded the case adding that a state could regulate gun carriage as long as the regulations did not render the right an “illusory promise.”

But the bubble of common sense jurisprudence burst on August 13th with the panel decision in Pena upholding the constitutionality of three challenged provisions of California’s Unsafe Handgun Act. California maintains a roster of guns that can legally be purchased in the state. The Unsafe Handgun Act now mandates that new handguns must indicate when a bullet is loaded in the chamber. Second, new guns must have a detachable mechanism to prevent the gun from discharging when a magazine is not in it. Lastly, new handguns must stamp “microscopically the handgun’s make, model, and serial number onto each fired shell casing.” The judges conceded that “no handguns were available in the United States that met the microstamping requirements,” but added that “simply because no gun manufacturer is `even considering trying’ to implement the technology, it does not follow that microstamping is technologically infeasible.” In short Californians are free to buy handguns that do not exist. The roster of legal firearms which, by the way manufacturers must pay to have their weapons on, is already shrinking. In the four years from 2013 to 2017 more than 500 models vanished from the list, including some of the most popular guns. The judges do not see that as a problem arguing it is not “the number of handguns on the roster that matter, it is the impact on self-defense in the home.”

But what of the Heller opinion’s explicit right to “keep and bear those guns in common use for self-defense and other lawful purposes?” The panel responds that they did not “reach the question of whether the challenged provisions fell within the scope of the Second Amendment’s right to bear arms because, even assuming coverage, the provisions passed constitutional muster” since “the Act only regulates commercial sales, not possession, and does so in a way that does not impose a substantial burden on purchasers.” Apparently as long as there are some guns to purchase—possession is not involved– and new handguns meeting futuristic requirements might be manufactured some day the constitutional right of Californians to keep and bear arms for self defence is not infringed.

In California the Second Amendment is not only being treated as a second-class right, but with the approval of the Ninth Circuit it is being treated as no right at all. The only hope for residents is that the Supreme Court grants certiorari.   But the Court has been reluctant to hear these cases and as the late Ninth Circuit Judge Stephen Reinhardt famously responded about his circuits’ decisions being overturned, “They can’t catch `em all.” Let’s hope they catch this one.

Joyce Lee Malcolm is a historian and constitutional scholar active in the area of constitutional history. She has written many books and articles on gun control, the Second Amendment, and individual rights. Her work was cited several times in the recent U.S. Supreme Court opinion in District of Columbia v. Heller. Her essays have appeared in The Wall Street JournalThe Financial TimesUSA TodayThe Boston Globe and other newspapers.

Suggested citation: Joyce Lee Malcolm, The Right to be Armed: The Ninth Circuit Giveth Then Taketh Away, JURIST – Academic Commentary, Oct. 1, 2018,

This article was prepared for publication by Austin Koltonowski, a JURIST Staff Editor. Please direct any questions or comments to him/her at


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