Oral Arguments Held in Duncan v. Bonta

March 20, 2024

Today in San Francisco, oral arguments were held in Duncan v. Bonta, the next step in CRPA’s challenge to the state’s ban on buying, selling, and transferring magazines holding more than 10 rounds.

The court focused heavily on what is an “arm” and whether “arms in common use” are protected because they are not “dangerous and unusual” as described in Heller. Our CRPA attorneys noted that the Heller court, by indicating that an arm is in “common use”, quenched the argument that they are “dangerous and unusual”, which would make them not protected by the Second Amendment.

Even so, firearms are protected under Heller if they are commonly used (for any lawful purpose and not just defensive purposes) and unless the state can meet the historical analogy test under Bruen, the law is unconstitutional.

To say the case has followed a wild, and even controversial, path would be an understatement.  Last fall, Judge Roger Benitez issued a long-awaited, and quite well-argued, decision to enjoin further enforcement of the state’s standard capacity magazine ban.

Naturally, the state sought to stay that injunction and put the law back in place, which was opposed by CRPA but granted by the Ninth Circuit anyway.  No surprise there, as we’re all accustomed by now to the fact that the Ninth Circuit abhors the Second Amendment.  But that’s where things got interesting.

As it granted the stay, the Ninth Circuit also brought the appeal of case all the way up to the original en banc panel, which heard today’s oral arguments, bypassing the three-judge panel that would hear the appeal in the normal course of business, a move that touched off quite a reaction.  The reaction was so vociferous, in fact, that the judges considered today whether they were outside of their authority to hear the case because of the comments by two of their fellow judges.

CRPA remains confident about the merits of Duncan v. Bonta in light of the Bruen standard.  And the Ninth Circuit’s unusual maneuver may have only sped up the path for the case to be heard by the Supreme Court.  We’ll fight it all the way to be sure!