Liberal 9th Circuit surprises with pro-2nd Amendment decision blocking California ammo ban

Second Amendment activists were given a surprise boost this week by the Ninth Circuit Court of Appeals. (Reuters)

Second Amendment activists were given a surprise boost this week when the liberal Ninth Circuit Court of Appeals backed a lower court’s decision to suspend California’s ban on the possession of large magazines.

Activists, supported by the National Rifle Association, have argued that the state's ban on ownership of magazines holding 10 bullets or more is unconstitutional. They won a preliminary injunction by a San Diego district court last year, and a three-judge panel on the Ninth Circuit backed that injunction Tuesday.

The court found that the district court did not abuse its discretion in granting the injunction or by concluding that magazines fall within the scope of the Second Amendment.

"The district court did not abuse its discretion by applying the incorrect level of scrutiny," the judges also found. "The district court concluded that a ban on ammunition magazines is not a presumptively lawful regulation and that the prohibition did not have a 'historical pedigree.'"

“This is a significant win for law-abiding gun owners in California,” Chris Cox, executive director of the National Rifle Association’s Institute for Legislative Action, said in a statement. “This unconstitutional law criminalizes mere possession of many standard capacity magazines and would instantly turn many law-abiding gun owners into criminals.”

Dissenting from the ruling, Judge John Clifford Wallace said that evidence provided by the state, including studies and surveys showing the use of large-capacity magazines increase the lethality of gun violence, “was more than sufficient to satisfy intermediate scrutiny.”

National Review’s David French, who opposes the ban, noted that the Ninth Circuit ruling was limited but also linked constitutional protection of firearms to potential militia use -- a development he described as “encouraging.”

The NRA noted that a ruling in the lower courts is expected soon, and that the case therefore will likely be before the 9th Circuit again. 

But President Trump has nominated Judge Brett Kavanaugh, who has a strong record of defending gun rights, to the Supreme Court. The NRA reflected that in its statement, expressing hope that if the the case is appealed, “the Supreme Court will likely have a new justice who respects the right to keep and bear arms as protected by the Second Amendment.”

The California Department of Justice told The San Diego Union-Tribune that it will “continue to vigorously defend the challenged law.”

Based in San Francisco, the Ninth Circuit has a reputation for being one of the nation's most liberal courts. Critics have branded the court the “Nutty 9th” or the “9th Circus,” in part because many of its rulings have been overturned by the U.S. Supreme Court. This includes an infamous 2002 ruling that the Pledge of Allegiance is unconstitutional because of its use of the phrase “under God.”

Republicans have been working to fill vacancies with conservatives, but suffered a setback this week when the White House withdrew the nomination of Ryan Bounds for the Ninth Circuit after realizing it did not have the necessary support in the Senate. He faced criticism over past college writings.

Fox News' Barnini Chakraborty contributed to this report.