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“I’m more anti-China than you!” 

That’s a new theme of this election.

Joe Biden says, “We will never again be at the mercy of China!” Donald Trump replies, “China would own our country if Joe Biden got elected!”

It’s strange to hear competition, because just a few administrations ago, presidents were eager to celebrate China. “A future of greater trade and growth and human dignity is possible!” said George W. Bush. Bill Clinton praised China’s “positive change” and “great progress.” 

What changed? That’s the subject of my new video.

Presidents Clinton and Bush were excited about China because its dictators had finally opened up China’s economy. They got rid of price controls, broke up collective farms, allowed foreign investment and privatized state-run business. China, suddenly, prospered.

“People were so happy to finally see China being set on this path,” says Melissa Chen, who reports on China for the Spectator. The reforms “lifted hundreds of millions of people out of poverty for the very first time.”

Then, three years ago, Xi Jinping got himself named president for life. 

He cracked down on speech, even jokes. After someone noted his resemblance to Winnie the Pooh, all mentions of the character were deleted from China’s internet.

I had thought the internet couldn’t be censored. Bill Clinton said it would be like “trying to nail Jell-O to the wall.”

“The Chinese figured out how to nail Jell-O to the wall,” says Chen. “They built an almost perfectly walled-in internet.”

China does this by employing a million censors. They block Google, Facebook, Twitter and most Western news media. A few computer-savvy Chinese citizens use forbidden apps to get around the censorship, but most don’t get to see the same internet that we see.

People caught accessing banned sites are punished. Police may barge into your home, threaten your family or just restrict your choices. 

“You can’t make doctor’s appointments,” explains Chen. “You can’t travel… they’ll block you from buying a train ticket or a plane ticket.”

Life is far worse for religious minorities such as the Muslim Uighurs. The government is waging cultural genocide against them. 

About a million Uighurs are locked up in “reeducation” camps, “sometimes for years,” says Chen. “Their family never hears back from them.”

China won’t allow reporters near the camps, but drone footage shows rows of blindfolded people with their heads shaved and their hands tied behind their backs. 

Radio Free Asia adds that China’s “reeducation” methods even include having Chinese men replace the Uighur men in families. They “come in and live with a family (and) sleep in the same bed as the wife,” says Chen.

In short, today’s China is, once again, a vicious communist dictatorship.

So, I’m amazed to watch American protesters and hear them say, “America is the world’s biggest problem.”

Even a recent New York Times editorial board member wrote that it was difficult to know whether the United States is “better, worse, or the same” as China.

That equivalence is “bonkers,” replies Chen. “There should be no doubt about the moral equivalence between the two countries.”

For one thing, we Americans are free to criticize our government.

“You can hold up a sign at a protest, saying, ‘Screw Donald Trump; the United States sucks!'” explains Chen. “You cannot do anything remotely similar in China.”

People in Hong Kong tried. Millions attended protests, often waving American flags. Chen says it shows they “have a hankering for American values. They crave this freedom that we take for granted.”

Now they, too, have been silenced by China’s government.

The American protesters who carry “democratic socialism” banners and wave Communist flags (Soviet Communists used to call people like them “useful idiots”) should know what people in Hong Kong know: Socialism leads to real government oppression.

“Why would Americans want this?” asks Chen. “Why would they be waving these Communist flags, wanting socialism?”

COPYRIGHT 2020 BY JFS PRODUCTIONS INC.

DISTRIBUTED BY CREATORS.COM

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Casinos and video arcades, both of which feature rows of electronic games that people use in close proximity to each other, pose similar risks of COVID-19 transmission. Yet in Massachusetts, casinos have been open for two months, while video arcades remain closed under an order that Gov. Charlie Baker originally issued in March.

Like many of the distinctions drawn by the COVID-19 lockdowns that all but a few governors imposed last spring, this one makes no medical sense. A federal lawsuit filed last week argues that Baker’s discrimination against video arcades is unconstitutional because it is scientifically indefensible.

Baker originally included video arcades in Phase III of his reopening plan, which took effect on July 6, but changed course without explanation on July 2. In response to a state legislator’s inquiry, the governor offered nothing but boilerplate about “the latest science” and “input from public health experts.”

You might wonder what sort of science tells us that video games played for fun are inherently more dangerous as disease vectors than video games played for the chance to win money. So does Gideon Coltof, the owner of Bit Bar, a restaurant-arcade in Salem.

Coltof notes that businesses like his can take the same precautions casinos are taking. They can erect barriers or maintain physical distance between customers, and they can wipe machines down between users.

Yet while Baker is allowing Coltof to operate his restaurant during Phase III, the governor has decreed that Coltof may not turn on his video games. For a business whose main attraction is the opportunity to play classic arcade games while eating, that restriction could be a death sentence.

If Baker’s order stands, says Coltof’s motion for a preliminary injunction, “Bit Bar likely will go out of business and will not be able to open again even after all COVID-19 orders are lifted.” Ordinary arcades are even more vulnerable to that fate, all because of Baker’s pseudoscientific whim.

The absurdity of Baker’s policy is illustrated by its implications for the Ms. Pac Man machines that Coltof uses as dining tables, which the governor says he may continue to do as long as the machines are turned off. According to Baker’s logic, Coltof’s motion notes, “this table turns into a deadly disease vector” if you “flip the switch” and turn it on.

What recourse does a business owner have when confronted by such livelihood-killing capriciousness? Coltof’s lawyer, Marc Randazza, argues that Baker’s distinction between casinos and video arcades is a content-based restriction on speech, which makes it presumptively unconstitutional.

The Supreme Court has recognized that video games are a form of constitutionally protected speech. “There is no meaningful distinction between the permitted and forbidden games other than their content,” Coltof’s motion says.

Content-based speech restrictions are subject to “strict scrutiny,” which means they must be “narrowly tailored” to further a compelling government interest. It is hard to see how Baker’s arbitrary policy can satisfy that test.

In fact, Randazza argues, the governor’s edict would fail even the highly deferential “rational basis” test, which requires only that a challenged rule be “rationally related” to a legitimate government purpose. “There are no facts that would support the assertion that a casino with electronic gambling machine kiosks is a safer environment than a restaurant-arcade that uses similar video game machine kiosks in a similar layout,” the motion says.

For the same reason, Randazza claims, Baker’s policy violates the 14th Amendment’s guarantee of equal protection. That provision, which requires that similarly situated people be treated alike, has extra force when the government interferes with a fundamental right such as freedom of speech.

If you’re not a fan of Ms. Pac Man, Galaga, or Q*bert, this case might not strike a chord with you. But Coltof’s complaint poses the same question that Americans across the country have been asking for months: Are there any limits to what the government can get away with by invoking public health?

© Copyright 2020 by Creators Syndicate Inc.

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Last fall, the Honorable Amy Coney Barrett delivered the 2019 Sumner Canary Memorial Lecture at the Case Western Reserve University School of Law: “Assorted Canards of Contemporary Legal Analysis: Redux.” The lecture has now been published in the Case Western Reserve Law Review. 

Here is how Judge Barrett’s lecture begins:

It would be an honor for me to speak to you at any time, but I’m particularly honored to be doing so now, on the thirtieth anniversary of the Sumner Canary Lecture delivered by Justice Antonin Scalia, my former boss and mentor. His lecture, titled Assorted Canards of Contemporary Legal Analysis, described his “most hated legal canards”—baseless but frequently repeated statements that lawyers are “condemned to read, again and again, in the reported cases.” He took aim, for example, at the hoary canon that “remedial statutes are to be broadly construed.” He asked, “How are we to know what is a remedial statute?” “Are not all statutes intended to remedy some social problem?” “And why should we construe any statute broadly?” Statutes should be construed neither broadly nor narrowly, but at the level of generality at which they are written. And he bemoaned the well-worn phrase, “A foolish consistency is the hobgoblin of little minds.” Why is consistency in the law a bad thing?

Tonight, in the spirit of Justice Scalia’s Canary Lecture, I’m going to share my own list of canards.

A PDF of the lecture may be downloaded here.

Video of Judge Barrett’s lecture is available here.

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The Ninth Circuit handed down a new decision last week, United States v. Moalin, on the telephony metadata program that Edward Snowden revealed in 2013.  The opinion, by Judge Marsha Berzon, has drawn some attention for its rulings on the lawfulness of the now-expired program. But there’s a part of the opinion that has been mostly overlooked that strikes me as much more important.  Starting around page 36 of the opinion, the court appears to articulate a new Fourth Amendment notice requirement.  It suggests that that defendants charged with crimes must be notified about surveillance practices that led to evidence that may be used in their case.

This holding was easy to miss if you weren’t looking for it, in part because the court doesn’t even apply its own test. Because the defendants learned of the surveillance anyway, the court rules, there was no prejudice and the court doesn’t need to reach whether the notice requirement applied to the facts of Moalin.  But although this passage ends up having no bearing on this one case, it strikes me as potentially a pretty big deal going forward for the field of surveillance law.

I thought I would blog about the passage, and its potential significance, to alert practitioners and interested readers.

I. The Traditional Fourth Amendment Notice Requirement

Here’s the context. The Fourth Amendment traditionally has only one notice requirement.  When the government executes a search warrant, the government has to give notice—even if delayed notice—that the warrant was executed.  See, e.g., Dalia v. United States, 441 US 238, 247-48 (1979).  Normally the search itself will give notice, as it’s hard to miss when the police knock down your door and take away your stuff.  But even if the search itself doesn’t provide notice, the government has to give post-search notice that the search occurred. See id.

In the past, at least, this notice requirement has been understood to be pretty modest.  For example, say the government gets a warrant to seize all of your e-mails held by your e-mail provider.  The provider shares all of your e-mails, and the government looks through them.  Do you get notice?  No, the courts say.  The Fourth Amendment notice requirement is satisfied by notice to the e-mail provider rather than to you. The search occurred there, and what matters is that notice was provided where the search occurred. See, e.g., United States v. Scully, 108 F. Supp.3d 59, 83-84 (E.D.N.Y. 2015).

II. The Ninth Circuit’s Notice Requirement

Enter the new Ninth Circuit decision.  As I read it, it has a very different concept of the Fourth Amendment’s notice requirement.

In Moalin, the question was whether defendants had to be notified about a warrantless national security program involving collection of telephone metadata that had been collected about them as part of the investigation.  I would have thought the answer is “no.”  Most obviously, there was no search warrant about which to give notice.  And beyond that, the program under then-existing precedent would have thought to not be a search at all.

The Ninth Circuit imagines a different kind of notice requirement, though.  Instead of a notice requirement that a warrant was executed, flowing from the warrant itself, this is a notice requirement that appears to be triggered only if and when criminal charges are filed providing notice that evidence about a person was collected using a surveillance practice that may or may not be a search.  In effect, it’s a notice to criminal defendants to consider filing a motion to suppress to challenge the investigation and vindicate any Fourth Amendment rights that may or may not have been at stake.

Here’s the passage from the opinion reproduced in full:

The Fourth Amendment requires that a person subject to a government search receive notice of the search, absent “exigent circumstances.” Berger v. State of New York, 388 U.S. 41, 60 (1967); see United States v. Freitas, 800 F.2d 1451, 1456 (9th Cir. 1986). Courts have excused advance notice in the wiretapping context for a practical reason: if the subject of a wiretap were “told in advance that federal officers intended to record his conversations, the point of making such recordings would obviously [be] lost.” Katz, 389 U.S. at 355 n.16. In such circumstances, the government must provide a “constitutionally adequate substitute for advance notice.” Dalia v. United States, 441 U.S. 238, 248 (1979). Dalia explained that the Wiretap Act, which governs the use of electronic surveillance in criminal investigations, meets this requirement by instructing that “once the surveillance operation is completed the authorizing judge must cause notice to be served on those subjected to surveillance.” Id. (citing 18 U.S.C. § 2518(8)(d)); see United States v. Donovan, 429 U.S. 413, 429 n.19 (1977).

The government argues that Berger and Dalia are inapposite here because they dealt with ordinary criminal investigations, and the Fourth Amendment requirements are different in the foreign intelligence context. The government points to United States v. Cavanagh, which quoted United States v. United States District Court (Keith), 407 U.S. 297, 322–23 (1972), for the proposition that a different standard may be compatible with the Fourth Amendment in the intelligence-gathering context if it is “reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens.” 807 F.2d 787, 790 (9th Cir. 1987). Cavanagh held that “FISA satisfies the constraints the Fourth Amendment places on foreign intelligence surveillance conducted by the government.” Id.

For our purposes, the essential insight of Cavanagh is that even if the Fourth Amendment applies differently in the foreign intelligence context, it still applies, at least if U.S. persons are involved.

Cavanagh did not address the Fourth Amendment’s notice requirement, but the insight we glean from it bears on our analysis here: because the Fourth Amendment applies to foreign intelligence investigations, U.S. criminal defendants against whom the government uses evidence obtained or derived from foreign intelligence surveillance may have Fourth Amendment rights to protect. The principal remedy for a Fourth Amendment violation is the exclusionary rule: a criminal defendant may seek suppression of evidence obtained from an unlawful search or seizure, as well as of the “fruits” of that evidence—additional evidence to which it led. See Wong Sun, 371 U.S. at 488. But criminal defendants who have no knowledge that a potentially unconstitutional search has played a part in the government’s case against them have no opportunity to vindicate any Fourth Amendment-protected rights through suppression.

Notice is therefore a critical component of the Fourth Amendment in the context of a criminal prosecution. And although the Fourth Amendment may apply differently to foreign intelligence surveillance than to searches undertaken in ordinary criminal investigations, notice of a search plays the same role in the criminal proceeding: it allows the defendant to assess whether the surveillance complied with the Fourth Amendment’s requirements, whatever the parameters of those requirements are. Indeed, the Supreme Court has recognized that the notice provisions in FISA and the FAA serve precisely that function. See Amnesty Int’l USA, 568 U.S. at 421 & n.8.

At the same time, the need for secrecy inherent in foreign intelligence investigations justifies a more circumscribed notice requirement than in the ordinary criminal context. See Kris & Wilson, supra note 5, § 29:2 (discussing the need for secrecy). Whereas the Wiretap Act requires notice at the end of an investigation regardless of whether an indictment is filed, 18 U.S.C. § 2518(8)(d), the FISA and FAA notice provisions are more limited, requiring notice only when the “Government intends to enter into evidence or otherwise use or disclose in any trial . . . or other proceeding in or before any court . . . or other authority of the United States, against an aggrieved person, any information obtained or derived from an electronic surveillance of that aggrieved person pursuant to the authority of this subchapter,” 50 U.S.C. § 1806(c); see id. §§ 1825(d) (physical search), 1845(c) (pen register and trap-and-trace surveillance); 1881e(a)(1) (FAA).16 According to the Senate Judiciary Committee Report accompanying FISA, Congress was aware that it was “depart[ing] from traditional Fourth Amendment criminal procedures,” but it concluded that the “need to preserve secrecy for sensitive counterintelligence sources and methods justifies elimination” of the “requirement of subsequent notice to the surveillance target . . . unless the fruits are to be used against him in legal proceedings.” S. Rep. No. 95-701, at 11–12 (1978) (emphasis added).

At a minimum, then, the Fourth Amendment requires notice to a criminal defendant when the prosecution intends to enter into evidence or otherwise use or disclose information obtained or derived from surveillance of that defendant conducted pursuant to the government’s foreign intelligence authorities. See Dalia, 441 U.S. at 248; Berger, 388 U.S. at 60.

This constitutional notice requirement applies to surveillance conducted under FISA and the FAA, which codify the requirement with respect to several types of surveillance. 50 U.S.C. §§ 1806(c), 1825(d), 1845(c), 1881e(a)(1). It also applies to surveillance conducted under other foreign intelligence authorities, including Executive Order 12,333 and the FAA’s predecessor programs. Indeed, the notice requirement is of particular importance with regard to these latter, non-statutory programs precisely because these programs lack the statutory protections included in FISA. Where statutory protections are lacking, the Fourth Amendment’s reasonableness requirement takes on importance as a limit on executive power, and notice is necessary so that criminal defendants may challenge surveillance as inconsistent with that requirement.

We emphasize that notice is distinct from disclosure. Given the need for secrecy in the foreign intelligence context, the government is required only to inform the defendant that surveillance occurred and that the government intends to use information obtained or derived from it. Knowledge of surveillance will enable the defendant to file a motion with the district court challenging its legality. If the government avers that disclosure of information relating to the surveillance would harm national security,  then the court can review the materials bearing on its legality in camera and ex parte. See, e.g., 50 U.S.C. § 1806(f) (allowing in camera, ex parte review of the legality of electronic surveillance under FISA Subchapter I if “the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States”).

Continue reading “Did the Ninth Circuit Create a New Fourth Amendment Notice Requirement for Surveillance Practices?”

California and New Jersey have enacted laws to confiscate firearms magazines holding more than 10 rounds. On Aug. 14, a 2-1 panel of the Ninth Circuit ruled California’s confiscation unconstitutional, in Duncan v. Becerra. The Third Circuit, Sept. 1, upheld by 2-1 confiscation in New Jersey in Association of New Jersey Rifle and Pistol Clubs Inc v. Attorney General New Jersey (NJ Rifle II). In combination, Duncan and NJ Rifle II cases provide a good view of the state of the Second Amendment argument today.

Below is a summary and analysis of the opinions, and what might happen next. Because the history of magazines was important in both cases, this post also provides background on magazine history, including photos of historic guns holding at least 16 rounds. Such guns have been around since at least 1580. The Lewis & Clark expedition, 1803-06, carried one. Multishot guns were expensive when the Second Amendment was ratified, in 1791. By 1868, when the Fourteenth Amendment was ratified, they had become broadly affordable.

En banc? On August 28, California Attorney General Xavier Becerra filed a petition for rehearing en banc. All filings in the case are available at the excellent case page of Michel & Associates, the firm that won the case in district court and then before the three-judge panel.

In the past, every Ninth Circuit panel ruling in favor of the Second Amendment was later overturned en banc. That could still happen, but it’s no longer certain, thank to President Trump’s many judicial appointments. The Ninth Circuit has 27 judges on active status. (Senior status judges do not vote on or participate in en bancs.) A majority vote is needed to take up a case en banc. Here is a flow chart for the procedural steps towards a decision to take a case en banc; and here is a written description of procedures, by Michel & Associates.

Because the Ninth Circuit is so large, an en banc does not include all active judges. According to Ninth Circuit Rule 35-3, an en banc panel always includes the Chief Judge. The present Chief Judge, Sidney Thomas (Clinton, 1996), has been active in effectuating en banc reversals.  For the rest of the en banc panel, ten additional active judges are chosen at random, to create a panel of 11.  Active judges on the Ninth Circuit include 10 appointed by Donald Trump, 7 by Barack Obama, 3 by George W. Bush, and 9 by Bill Clinton. That’s a total of 16 appointed by Democrats versus 13 by Republicans.

At present, no announcement has been made about whether the New Jersey plaintiffs will file a petition for en banc review by the Third Circuit. The active judges on the court currently consist of two Clinton appointees, four Obama, four George W. Bush, and four Trump.

Supreme Court: If the panel decision in Duncan survives, or if an en banc Third Circuit reverses the panel, there would be a circuit split. Magazine bans have been upheld by the First, Second, Fourth, Seventh, and D.C. Circuits. In the latter three circuits there were strong dissents. The D.C. dissent, in the Heller II case, was written by then-Judge Kavanaugh.

A circuit split is, in itself, not necessarily sufficient to get the Supreme Court’s attention. Even a well-established circuit split may just be left as is. For example: If an adult passes a fingerprint-based background check and safety training, should the person be allowed to carry a concealed handgun, for lawful self-defense? The D.C. and Seventh Circuits have answered “yes.” Five other circuits have said that the right to bear arms may be denied unless the applicant shows a special need. (1st, 2d, 3d, 4th, 9th Cirs.) In some states, such as Hawaii, special need is construed to be non-existent.

In May 2020, the Supreme Court denied cert. in ten cases involving the Second Amendment—including a New Jersey case, Rogers v. Grewal, that would have been perfect to examine the right to bear arms.

According to CNN journalist Joan Biskupic, “sources have told CNN that the justices on the right did not believe they could depend on a fifth vote from Roberts.” Joan Biskupic, Behind closed doors during one of John Roberts’ most surprising years on the Supreme Court, CNN.com, July 27, 2020.

Magazine bans in the Pacific: Hawaii bans handgun magazines over 10 rounds. A proposal to extend the ban to rifles was defeated in the 2020 legislature. If the Duncan panel decision remains good law, the Hawaii handgun magazine ban would have to fall.

Like Hawaii, the Commonwealth of the Northern Mariana Islands is part of the Ninth Circuit. The Commonwealth bans magazines over 10 rounds. That ban too would be invalid under Duncan.

The Third Circuit covers New Jersey, Pennsylvania, Delaware, and the U.S. Virgin Islands. None of the other jurisdictions in the Circuit have magazine bans. (Virgin Islands laws are here.)

Case histories. California in 2000 prohibited the manufacture, import, and sale of so-called “large capacity magazines,” defined as magazines holding more than 10 rounds. A 2013 revision forbade purchase or receipt of such magazines. In 2016, the California legislature outlawed mere possession. Magazine owners must remove the magazines from  the  state,  sell  them  to  a  firearms  dealer,  or  surrender  them to law enforcement for destruction. There are exemptions for police, retired police, government use, and film-making. Cal. Penal Code sect. 32310.

In Duncan, the federal district court issued a preliminary injunction against confiscation. That decision was upheld by a 2-1 panel in the Ninth Circuit, which emphasized district judges’ broad discretion to issue a preliminary injunction, or not. The panel discussed some of the pro/con evidence that had been introduced thus far; in the majority view, the district judge’s weighing and interpretation of the evidence was not an abuse of discretion. 742 F. Appx. 218 (9th Cir. 2018). I filed an Amicus brief in support of upholding the preliminary injunction. I wrote about the Ninth Circuit decision here.

While the preliminary injunction appeal was proceeding, the district court moved the case forward. In March 2019, U.S. District Judge Roger T. Benitez ruled in favor of plaintiffs’ motion for summary judgment, and held the confiscation statute unconstitutional. My analysis of the 86 page opinion is here.  Shortly after the district court decision, the California Attorney General sought and a Ninth Circuit motions panel granted a temporary stay. Under the stay, confiscation did not take place, but Californians were not allowed to acquire magazines over 10 rounds.  That status quo remains today, as explained in a FAQ from the California Rifle & Pistol Association.

New Jersey in 1990 enacted a 15 round limit, with a limited form of grandfathering for larger magazines. In 2018, the legislature reduced the limit to 10 rounds, and ordered the confiscation of magazines larger than 10 rounds.

The day the law went into effect, plaintiffs filed the case Association of New Jersey Rifle & Pistol Clubs (NJ Rifle I). The district court denied plaintiffs’ motion for a preliminary injunction. On expedited appeal in 2018, the Third Circuit affirmed the denial of the injunction by 2-1. 910 F.3d 106. When the case returned to the district court, the court declared that the Third Circuit panel opinion on the preliminary injunction had conclusively resolved all the legal merits in the case, and so the district court was bound to uphold the confiscation statute.

The district court’s decision in NJ Rifle II was appealed. I filed an amicus brief in the case, and wrote about the case here, along with a detailed history of magazines holding more than 10 rounds.

By 2-1, the Third Circuit in agreed that the prior panel decision, on the preliminary injunction, had conclusively resolved all the legal issues, and was binding. Accordingly, the majority did not address constitutional merits.

The dissent in NJ Rifle II disagreed that the preliminary injunction panel had been binding on the merits; the dissent presented arguments why the confiscation violates the Second Amendment under various standards of review.

The Duncan and Association opinions. The Duncan panel decision was written by Judge Kenneth K. Lee (Trump 2019, replacing Stephen Reinhardt), joined by Consuelo M. Callahan (G.W. Bush 2003). Barbara M. G. Lynn, Chief Judge of the Northern District of Texas (Clinton 1999) sat on the panel by designation, and dissented.

The NJ Rifle II panel decision was written by Kent A. Jordan (G.W. Bush 2006) and joined by Jane R. Roth (G.H.W. Bush 2001, senior status 2006).  Judge Paul B. Matey (Trump 2018) dissented.

Here are some key differences and agreements among the judges in the two circuits–with the caveat that the NJ Rifle II majority did not address the merits.

Structure of Review. All circuits except the Eighth employ a two-part test for Second Amendment cases: “(1) whether the law burdens conduct protected by  the  Second  Amendment;  and  (2)  if  so,  what  level  of  scrutiny to apply to the regulation.”

The first part of the test asks whether the case involves a Second Amendment issue. In Heller, the Supreme Court said that “dangerous and unusual weapons” are not protected by the Second Amendment. So if someone brought a Second Amendment challenge against a statute the prohibited possession of sarin gas, a court would reject the challenge at part one, because sarin gas is not protected by the Second Amendment.

All the judges in Duncan and NJ Rifle I used the two-part test. Dissenting in NJ Rifle II, Judge Matey wrote that text, history, and tradition was the proper test under Heller, and the that confiscation law plainly failed the test. (For reasons discussed below.) Then-Judge Kavanaugh had used text, history, and tradition in his Heller II dissent. As Judge Matey explained, the two-part test has often devolved into judicial interest-balancing—which is precisely what the Heller majority had rejected, and which Justice Breyer had advocated in his Heller dissent. Like the NJ Rifle II dissent, the district court in Duncan did use the two part-test as one mode of analysis, but criticized it as excessively complicated compared to Heller‘s “simple test” of text, history, tradition. The Ninth Circuit panel in Duncan briefly noted the criticism, did not disagree with it, but stated that the panel was bound by Ninth Circuit precedent to use the test.

How common are the banned magazines, and how much does that matter? Magazines holding over 10 rounds number in the many tens of millions. They are nearly half of all magazines currently possessed in the United States. Magazines are integral to the operation of a firearm. All judges were in agreement on these facts.

According to some judges, the confiscation of property that is widely owned to exercise constitutional rights should be reviewed under strict scrutiny. According to other judges, magazines over 10 rounds aren’t important for lawful defense of self or others. So intermediate scrutiny is the appropriate standard of review.

In terms of objective standards for what is useful for the lawful defense of self and others, it might be noted United States Marshals, who guard the federal courts, often carry .40 caliber Glock pistols. Their standard magazine is 15 rounds.  The standard arm of the New Jersey State Police is a handgun with a 15 round magazine. (NJ Rifle II, at 7).

Pursuant to Heller (which had brushed aside D.C.’s argument that long guns are adequate substitutes for handguns for defensive purposes), the Duncan majority wrote: “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.” “Simply  put,  any  law  that  comes  close to categorically banning the possession of arms that are commonly   used   for   self-defense   imposes   a   substantial   burden on the Second Amendment.” Moreover:

We would be looking through the wrong end  of  a  sight-glass  if  we  asked  whether  the  government  permits  the  people  to  retain  some  of  the  core  fundamental  and enumerated right. Instead, Heller counsels us to look at whether   the   government   regulation   restricts   the   core   fundamental right from the outset. In other words, we look to  what  a  restriction  takes  away  rather  than  what  it  leaves  behind. …Here,  the  state  effectively  intrudes  into  the  homes  of  law-abiding citizens to forcibly confiscate arms that they rely on for  self-defense…..When  the  government  bans  tens  of  millions  of  protected arms that are staples of self-defense and threatens to confiscate them from the homes of law-abiding citizens, that   imposes   a   substantial   burden   on   core   Second   Amendment rights.

As the Duncan dissent pointed out, magazines over 10 rounds might be common in the United States as a whole, but they are presumably not so common in California, thanks to the 2000 ban on sales. The Duncan majority retorted that a prohibition cannot be its own justification. In the Supreme Court’s District of Columbia v. Heller, the District had banned handguns, so lawful handguns were uncommon in the District. The Heller decision looked at how common handguns were in the United States, not just in a single jurisdiction.

Legal History. Heller had stated that certain “longstanding” laws were “presumptively” (but not conclusively) constitutional. As examples, the opinion listed bans on firearms possession by felons and the mentally ill; prohibitions against carrying firearms in schools and government buildings; and regulations on the commercial sale of firearms. The California magazine ban did not fit any of the presumptively constitutional categories.

Magazine bans have been the exception, not the norm, in American history. The current set of magazine bans in some states dates back only to 1990, with a New Jersey statute that banned the acquisition of magazines over 15 rounds.

During alcohol prohibition in the 1920s, a few states enacted firearms capacity laws, but none of those were was sweeping as the current California and New Jersey statutes. Nor was the capacity as low as 10. All of the alcohol prohibition state laws were later repealed, so they are not “longstanding.”

The above legal history was presented by the judges who found confiscation unconstitutional, and was not disputed by the other judges.

Not “dangerous and unusual.” According to Heller, arms that are “dangerous and unusual” are not protected by the Second Amendment. Magazines over 10 rounds are common, and therefore not unusual. Therefore, they cannot be dangerous and unusual. The Duncan majority cited evidence that there are 115 million such magazines in circulation. Whatever the exact numbers, such magazines number in the many tens of millions in the United States. Like handguns in Heller, magazines over 10 rounds are “commonly  owned  and  typically  possessed  for  lawful  purposes.” (Duncan, slightly paraphrasing Heller.) No judge in the United States has ever accepted the claim that magazines over 10 rounds are “dangerous and unusual.”

Applying strict scrutiny. The three judges who used strict scrutiny did so straightforwardly. Under strict scrutiny, the government’s restriction on a right must be “narrowly  tailored.” It must be “the least restrictive means of achieving” the government’s interests. Confiscation was just the opposite: “a statewide   blanket ban on possession everywhere and for nearly everyone.” (Duncan). As Judge Matey pointed out in NJ Rifle II, the state had produced no evidence that magazine bans save lives, and no justification why a 15 round limit was alright in 1990 but confiscation of everything over 10 was necessary in 2020.

Applying intermediate scrutiny. All judges who addressed the merits examined the statute under intermediate scrutiny, at least as an alternative approach.

Intermediate scrutiny looks for “a  reasonable  fit  between  the  challenged  regulation and the asserted objective.”

According to the Duncan majority, a blanket ban for everyone “is excessive and sloppy.”

It applies  to  rural  and  urban  areas,  in  places  with  low  crime  rates  and  high  crime  rates,  areas  where  law  enforcement  response  times  may  be  significant,  to  those  who  may  have  high degrees of proficiency in their use for self-defense, and to  vulnerable  groups  who  are  in  the  greatest  need  of  self-defense. The law also prohibits possession outright. And it applies  to  all  firearms,  including  handguns  that  are  the  “quintessential   self-defense   weapon.” (citing Heller)…. The  state  could  ban  virtually  anything  if  the  test  is  merely  whether  something  causes  social  ills  when  someone  other  than its  lawful  owner  misuses  it.  Adopting  such  a  radical  position would give the government carte blanche to restrict the people’s liberties under the guise of protecting them.

Under either intermediate scrutiny or strict scrutiny, the government bears the burden of proof. Yet the California Attorney General’s evidence was “thin.” A survey of mass shootings in California found that only 3 of 17 involved a magazine over 10 rounds. None of these magazines were legally obtained in California. So the rationale for confiscating all such magazines from legal owners in California was unsupported.

Dissenting in Duncan, Judge Lynn was agnostic about whether magazine confiscation burdened Second Amendment conduct at all (Part 1 of the two-part test.) But she was sure that the confiscation passed intermediate scrutiny. The Attorney General had presented some evidence that magazine bans were effective, and that was sufficient; at least, the case should not have been decided at the summary judgment stage.

In NJ Rifle II, the state had argued that that that time needed to replace an empty magazine (2-4 seconds) allowed some victims of a mass shooting to escape or to counter-attack the shooter. But this was just speculation, replied dissenting Judge Matey. The evidence showed that that large majority of mass shooters use more than one gun. Moreover, the average interval between shots in a mass shooting is more than 2-4 seconds, so a magazine could be switched without missing a beat. The N.J. Attorney General had not met the intermediate scrutiny standard of “reasonable inferences based   on substantial evidence.”

Material history: Heller stated that the Second Amendment, like the First Amendment, is not limited to the technology that existed in 1791.

However, as the Ninth Circuit and Judge Matey detailed, firearms holding more than ten rounds predate the Second Amendment by two centuries. No judge in the United States has disputed the accuracy of the history detailed by the Duncan majority and the N.J. Rifle II dissent.

The Duncan opinion provided three pages of gun technology history, from the sixteenth century to the present. Judge Matey’s NJ Rifle II dissent also surveyed material history.

Below is a photo of a 16-shot wheel-lock firearm, built sometime before the 1600. (Photo by Michael Ives, for an article in America’s 1st Freedom.)

When the user pulled the trigger, all sixteen shots would fire in sequence. By the 1700s, gun designers had figured out how to let the user fire one shot at a time.

At the time the Second Amendment was ratified, the state of the art was the 22 shot Girandoni air rifle. Carried on the Lewis & Clark expedition, it was ballistically equal to a powder gun. (This photo and ones below are used courtesy of NRA Museums.)

Although the Lewis and Clark expedition, consisting of a few dozen people, was often outnumbered, they made a point of demonstrating the Girandoni when encountering a new group. As a result, they were rarely molested. (For details, see the video by NRA Museum Senior Curator Phil Schrier, at the bottom of the NRA Museum page on the Girandoni.)

That is one of the purposes of magazines with adequate ammunition capacity: to allow self-defense by someone who is outnumbered. The Duncan opinion addressed anti-mob utility in detail, explaining how repeating rifles were used to deter lynch mobs during Jim Crow.

Such guns were expensive in the eighteenth, seventeenth, and sixteenth centuries. By 1866, when Congress sent the Fourteenth Amendment to the States for ratification, improved manufacturing techniques (such as interchangeable parts) had made such guns broadly affordable. Examples include the Winchester Model 66, below. The Winchester’s  capacity was up to 18 rounds, depending on caliber.

Before the turn of the 20th century, semi-automatic handguns with detachable magazines were being produced. The picture below is a Luger pistol with its optional 32-round snail drum magazine. (Picture of a 1914 exemplar.)

Since then, handguns haven’t changed all that much, other than in better quality. Improvements in machine tools mean that parts are better made these days. Plastic polymers were introduced to firearms manufacturing in the 1950s, so many guns today use plastic for some of the parts. (While adhering to federal law, 18 U.S.C. 922(r), that a firearm must have at least 4 1/2 ounces of metal, in the silhouette of a gun.) The invention of double-stack magazines made magazines more compact, so in the Glock 17 pistol below (invented early 1980s), the 17 round magazine fits entirely inside the grip.

For more on magazine history, see my article The History of Firearm Magazines and Magazine Prohibitions, 78 Albany Law Review 849 (2015), and see also Clayton E. Cramer & Joseph Edward Olson, Pistols, Crime, and Public: Safety In Early America, 44 Willamette L. Rev. 699 (2008). Both articles were cited in Duncan, and the first article was cited by the dissent in NJ Rifle II.

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