Ninth Circuit Stays Decision That Invalidated California’s Assault Weapons Ban

A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit on Monday stayed a decision of a San Diego federal judge that had invalidated California's ban on assault weapons, pending appeal.

On June 4, District Judge Roger Benetiz of the U.S. District Court for the Southern District of California ruled that California's ban on assault rifles violated the Second Amendment.

In his decision, Benetiz wrote that “Like the Swiss Army Knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment.”

California Attorney General Rob Bonta promptly filed an appeal and requested the 9th Circuit to suspend the effect of Benetiz's order while the appeal was pending.

The court granted the request on June 21 in a one-page order that said Benetiz's decision was stayed pending the determination in another gun case, Rupp v Bonta, initially filed in the U.S. District Court for the Central District of California.

In Rupp, the plaintiffs challenged California's assault weapons ban, arguing that “California’s sweeping Assault Weapon Control Act prohibits the most popular rifle models in the country, which are lawfully owned and safely operated by millions of Americans in all but a few states.”

On July 22, 2019, the Rupp court granted the Attorney General's motion for summary judgement, ruling that California had appropriately considered the legitimate interests of its residents in possessing assault weapons for self-defense and had properly “weighed those interests against the weapons' propensity for being used for mass violence and concluded that the weapons’ lawful value is drastically outweighed by the danger they pose to California citizens.”

Rupp was appealed and, in turn, stayed pending the decision in a third case, Duncan v Bonta, also on appeal to the 9th Circuit.

The Duncan case, like Miller, began in San Diego and was heard initially by District Judge Benetiz.

The Duncan case was filed in 2017 by various gun owners and advocacy groups who challenged California’s ban on “Large Capacity Magazines” or LCMs. Magazines hold and feed ammunition into guns. LCMs are defined by California law as magazines that hold more than 10 rounds.

The issue in Duncan was whether magazines—not guns, after all, but holders for ammunition --were covered by the Second Amendment, and, if so, whether California was powerless to say that large magazines—LCMs—were beyond the protection of the amendment.

In an 86-page decision, Benetiz granted summary judgment to the plaintiffs.

Weaving together California crime statistics and stories of citizens relying on their own weapons to repel or eliminate home invaders, Benetiz explained at length why he thought that individuals might wisely choose to bear firearms.

Benetiz recognized that "to protect the home and hearth, citizens most often choose a handgun, while some choose rifles or shotguns."

Nevertheless, he thought that if "a law-abiding, responsible citizen in California decides that a handgun or rifle with a magazine larger than 10 rounds is the best choice for defending her hearth and home," that was perfectly appropriate.

Benetiz stayed most of his decision pending appeal.

On Aug. 14, 2020, a divided panel of the 9th Circuit agreed with Benetiz and affirmed his ruling. However, on Feb. 25, 2021, the full court voted to rehear the appeal en banc. En banc—French for “in bench”—refers to matters decided by the full court.

An article by William Yeatman in the Yale Journal on Regulation, explains that in the 9th Circuit “the full court (29 active judgeships) votes whether to grant... an en banc rehearing. If a majority (of the full court) grants the petition/request, then the rehearing is performed by a subset panel of 11 judges, composed of the Chief Judge and 10 additional judges drawn by lot.”

En banc arguments in Duncan were held June 22.

All three of the cases—Miller, Rupp and Duncan—ultimately involve balancing the Second Amendment right to bear arms against the propensity of shooters in mass shootings to use assault weapons with large magazines to inflict mayhem on crowds of innocents.

The 9th Circuit's decision on Duncan will likely control the outcome in Rupp and Miller, but there is little reason to think that it will put the issue to rest.

Appeals to the U.S. Supreme Court will almost certainly follow.



  1. Applying limitations to an essential freedom based on the abuse of that freedom by an infinitesimally small percentage of the population represents, as a formula for governance, a giant step down the road to subjugation. As an argument its use would be equally valid in shutting down the free press, which racks up a larger body count than any army of maniacs simply by exercising its bias (promoting racism, anger, fear, not to mention bogus wars & science). So too with freedom to gather and protest, freedom from unreasonable search (that one, if used effectively, could all but end gang killings), and freedom from self-incrimination (which keeps lots of murderers walking free).

    Additionally, the idea of associating one group, criminals who perpetrate mass shootings, with another group, law-abiding owners of firearms with large capacity magazines, for no reason other than their possession of firearms, is as absurd as associating drunk drivers (responsible for 10k deaths/year) with the owners of America’s 276 million cars. As there is far more than a mere propensity that drunk drivers will use cars to kill, how can America trust its citizens to possess them?

  2. No surprise that the 9th circuit would rule this way. They’ve been spanked by the Supreme Court a lot recently so I thank them for pushing this forward toward the Supreme Court. Thank you 9th circuit for your prompt, albeit incompetent and political, ruling.

  3. “the propensity of shooters in mass shootings to use assault weapons with large magazines to inflict mayhem on crowds of innocents.” Nope and disappointing that SJI has abandoned fact-checking.

    No “assault weapons” have been used in mass shootings. All have been handguns (VTA shooting) or Modern Sporting Rifles i.e., single shot – not select fire bursts, nor full auto capable. A traditional wooden stock rifle could just as easily been used although they are heavier and more expensive.

    A magazine can be replaced in under 2″. The argument that 10 round magazines gives a window of opportunity to intervene simply doesn’t hold up in practice. HiCap magazines are more prone to jam. Almost every mass shooter demonstrates poor firearms skills.

    On that basis, HiCap magazines offer a safety advantage: the shooter will likely fumble around and provides an opportunity to intervene when a failure-to-feed event occurs.

    The vast majority (over 96%) of shootings involve handguns.

  4. Bring on the retaliation laws. Time to create more unenforceable and illegal laws that will cost the state, county and city millions of dollars.

    It’s starting in San Jose. Way to go Mr. Licardo – Pick a loosing fight with the NRA and CPRA. Chuck Michele will have you for lunch and bankrupt your precious city.

    Sore looser laws.

  5. On June 30th 2022, SCOTUS granted certiorari, vacated and remanded back to circuit courts, including Duncan v Bonta from the 9th Circuit, four 2nd Amendment cases. In the GVR order are instructions to redo them in light of their Bruen decision overturning the part of New York’s CCW law that required an applicant to “show cause” for one. The upshot? California’s “assault weapon” and “high capacity magazine” laws are about to bite the dust. Too bad, so sad, but we’re glad.

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