The Ninth Circuit on Thursday ordered that it will rehear en banc a challenge to California’s ban on possession of large-capacity magazines. Last August a divided three-judge panel of the court held that the ban violates the Second Amendment.

California Attorney General Xavier Becerra, who petitioned the court for the en banc rehearing, praised the order in a statement, calling it “the next step in the defense of our state’s commonsense gun laws.”

“Large-capacity magazines have been used in many horrific mass shootings around the country, including right here in California,” Becerra said.

Able to hold more than 10 rounds of ammunition, large-capacity magazines have been used in some of the deadliest mass shootings in the U.S. in recent years, including shootings in San Bernardino in 2015 and Thousand Oaks in 2018.

In 2016, California voters passed Proposition 63, amending Penal Code section 32310 to enact a wholesale ban on the possession of large-capacity magazines by almost everyone in the state. Before that amendment, the statute prohibited large-capacity magazines’ manufacture, import, and sale; in 2013, California amended the statute to prohibit their purchase and receipt.

A group of California large-capacity magazine owners, along with the California Rifle & Pistol Association, brought a constitutional challenge to the ban. The district court granted them summary judgment, finding that section 32310 violates the Second Amendment and the Fifth Amendment’s takings clause.

The Ninth Circuit affirmed the district court in its August decision, concluding that the ban “severely burdens the core of the constitutional right of law-abiding citizens to keep and bear arms.”

“The state of California has latitude in enacting laws to curb the scourge of gun violence, and has done so by imposing waiting periods and many other limitations,” Judge Kenneth Lee wrote for the majority of the three-judge panel. “But the Second Amendment limits the state’s ability to second-guess a citizen’s choice of arms if it imposes a substantial burden on her right to self-defense.”

Judge Barbara Lynn, sitting by designation from the U.S. District Court for the Northern District of Texas, wrote a dissent to state her view that the majority opinion conflicts with Ninth Circuit precedent in Fyock v. Sunnyvale (9th Cir. 2015) 779 F.3d 991, in which the court upheld a city ban on large-capacity magazines.

Thursday’s order granting en banc rehearing vacates the panel’s August decision. California’s ban on the sale, purchase, manufacture, importation, or acquisition remains in effect during the ongoing appeal.

Counsel for the plaintiffs could not be immediately reached for comment on the order.

The case is Duncan v. Becerra, case number 19-55376, in the U.S. Court of Appeals for the Ninth Circuit.

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