[guest post by JVW]

In a surprise move, the Ninth Circuit Court of Appeals on Wednesday refused to overturn an injunction by a San Diego district court which prevented the state of California from enforcing its ban on firearm magazines holding more than ten bullets. The law banning the “high capacity” magazines had been passed by the California Legislature and signed by Governor Jerry Brown in 2016, and officially was to be enforced starting July 1 of last year, but had been blocked by the ruling from U.S. District Judge Roger Benitez shortly before it was to go into effect. Under the law, gun owners were supposed to voluntarily surrender their now-illegal magazines to law enforcement officers.

The decision by a three-judge panel in the Ninth Circuit was two to one in support of the injunction. Judge Benitez’s original ruling had sensibly declared that “a final decision will take too long to offer relief, and because the statute will soon visit irrevocable harm on Plaintiffs and all those similarly situated a state-wide preliminary injunction is necessary and justified to maintain the status quo.” In yesterday’s ruling, Judge N. Randy Smith (appointed by G.W. Bush) and Judge Deborah A. Batts, sitting by designation from the Southern District of New York (I didn’t know they used visiting judges to cover vacancies), determined that Judge Benitez was well within judicial discretion in suggesting that plaintiffs could suffer irrevocable harm from the ban as well as in his assertion that under the Heller decision a magazine which holds more than ten bullets could be considered protected by the Second Amendment.

In dissent, Judge John Clifford Wallace, a 90-year-old Nixon appointee who puts the “senior” in Senior Circuit Judge, suggested that “the district court clearly misapplied intermediate scrutiny by refusing to credit relevant evidence that fairly supports the state’s rationale for its [large-capacity magazine] ban,” pointing to a Michael Bloomberg-funded Mayors Against Illegal Guns study from 2013 purporting to demonstrate that guns with magazines holding more than ten bullets lead to more lethal mass shootings. Judge Wallace also accused Judge Benitez of failing to reach the same conclusions that another district court had reached in a similar case. But the two-judge majority would have none of that logic, dispensing with Wallace’s arguments in a pair of footnotes in the majority ruling and accusing Wallace of substituting his own discretion for that of the district judge.

While the magazine ban remains on hold, this case goes back to the district court for further ruling on the legality of the legislation. This case may very well end up back at the Ninth Circuit, and perhaps eventually at the Supreme Court.

Thoughts from David French at National Review Online here; thoughts from David Kopel of Reason here. I’ll leave it to you lawyers and gun nuts* to carry the conversation from here.

– JVW

* Kidding! Kidding!