On 2 April, 2020, a three judge panel from the Ninth Circuit heard oral arguments in the Duncan v. Becerra case. The District court had decided the outright ban of magazines with a capacity of more than 10 rounds violated the Second Amendment. The opinion, by Judge Roger T. Benitez, was brilliant and extremely well written.

The video lasts over an hour, with strong questioning by the judges. Judge Consuelo Callahan presides and does most of the questioning. Judge Kenneth K. Lee asks some pointed questions, and Judge Barbara M. Lynn asks a few questions.

Link to the appeals court video

The appealing attorney for the State of California was John Darrow Echevveria.

The plaintiffs attorney for Duncan and the Second Amendment was  Erin E.  Murphy.

The State of California did its best at attempting to reduce Second Amendment right to the minimum possible under the Heller ruling. The argument made was essentially, if California residents had access to some effective means of self defense in the home, then Heller was satisfied, and the State could ban and regulate almost anything they wished to do.

When asked if the ban could be extended from a 10 round ban to a 1 round ban, Echevveria thought that might be unconstitutional.


This argument was specifically rejected in Heller as being off the table, but the Ninth Circuit has worked hard to forward it.

The attorney representing Duncan and Second Amendment supporters, generally, simply reiterated the Heller and McDonald decisions. Weapons in common use which are used for lawful purposes are protected by the Second Amendment. In particular, a complete ban is off the table.

When asked if the ban violated the “takings clause” of the Constitution, Murphy said it was primarily an issue of compensation.

The State made the claim that limiting magazine capacity was merely reasonable regulation which did not impact the Second Amendment.  It relied on several court cases from other circuits.

This is what happens when the Supreme Court refuses to enforce its previous rulings. Several appellate courts are adamantly hostile to the exercise of Second Amendment rights. They have relegated the Second Amendment to a second class right, as noted by Justice Thomas.

The oral arguments are interesting. They probably make little difference. The finding of the three judge panel will not be final.

The Ninth Circuit has shown, again and again, Second Amendment rulings will go to an En Banc court.


The make up of the Ninth Circuit has changed considerably under President Trump. Once a bastion of leftist ideology, which was the most reversed Circuit in the United States, it now has nine judges appointed by President Trump. The Circuit has 29 judges. The Circuit now has a three judge majority appointed by Democrats.

Not all judges appointed by Republicans are originalist and textualists. They tend in that direction. The Ninth Circuit now has some balance, instead of being overwhelmingly leftist.

One of the judges on the three judge panel, Judge Lee, was appointed by President Trump.

©2020 by Dean Weingarten: Permission to share is granted when this notice and link are included.

https://gunwatch.blogspot.com/2020/04/oral-arguments-heard-by-3-judge-panel.html

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