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Issue
Whether a city ordinance outlawing the possession of firearm magazines having capacities of more than ten rounds violates the Second Amendment right to keep and bear arms.
Facts
The federal Assault Weapons Ban of 1994 criminalized the possession of firearm magazines with capacities of more than ten rounds albeit with a grandfather clause. In 2000, California partially echoed that federal law by criminalizing the manufacture, sale, purchase, transfer, and receipt of those same magazines within the state. But it failed to criminalize their possession. Thus when the federal law expired in 2004, California residents could legally possess newly acquired so-called “high-capacity” magazines, despite the state’s attempt to limit their proliferation. Residents, for example, could purchase the magazines out-of-state and then bring them into California despite the state law.
In November 2013, voters in the City of Sunnyvale, California, passed an ordinance banning the possession of the magazines, but without a grandfather clause. Indeed, under Measure C, no such magazines were allowed within the city limits. Residents of Sunnyvale had 90 days to surrender or dispose of their magazines through approved channels.
Leonard Fyock and five other Sunnyvale residents sued the city, requesting a preliminary injunction to prevent the law’s enforcement until the courts could decide the case. They argued that the ban violated their Second Amendment right to keep and bear arms,
Court Below
The District Court for the Northern District of California first heard the case. The court held that although the ordinance was a burden on Second Amendment rights, the burden was not excessive because the law applied only to a subset of preferred magazines. Under “intermediate scrutiny,” the law was a constitutionally acceptable restriction, and the court denied the preliminary injunction against the law. See the opinion here:
Fyock v. City of Sunnyvale, 25 F.Supp.3d 1267 N.D., Cal. 2014
The plaintiffs appealed to the Ninth Circuit Court of Appeals, which affirmed the lower court’s ruling. See the opinion here:
Fyock v. City of Sunnyvale, 779 F. 3d 991 9th Cir. 2015
Fyock then submitted an application for an injunction against the ordinance to Justice Kennedy on the Supreme Court, but Kennedy denied it. Fyock did not formally appeal to the Supreme Court.
Question examined by the Ninth Circuit
“[W]hether Sunnyvale’s ordinance outlawing the possession of firearm magazines having a capacity to accept more than ten rounds should be preliminarily enjoined for infringing individuals’ Second Amendment rights.”
CCJ filed an amicus curiae brief in support of Fyock in the Ninth Circuit.
Summary
The history and modern use of magazines is central to determining the constitutionality of laws restricting Second Amendment rights. Indeed, the federal judiciary determines fundamental rights based primarily on their historical foundations and whether there is a longstanding tradition of their protection. Further, the Supreme Court has repeatedly emphasized the “common use” of certain firearms as a determinative element in the constitutionality of legal restrictions. The Supreme Court determined that the Second Amendment protects a fundamental right, it is undoubted that magazines are required for the operation of commonly used firearms, and law-abiding citizens commonly use magazines capable of holding more than ten rounds.
There are three primary considerations. Firearms with internal magazines having capacities of more than ten rounds have been manufactured and sold for centuries, and detachable magazines with such capacities gained commercial success by the mid-19th century; Sunnyvale’s draconian restriction on magazine capacity has no support in American legal history; and citizens have long possessed the magazines for lawful purposes. The district court correctly noted the importance of historical precedent in determining whether large-capacity magazines can be banned, but it made a critical error when it asserted that “magazines did not even exist when the Second Amendment was ratified.” The court believed that magazines are a new development in firearms production; that assumption is wrong. Although magazines have undergone improvements over the years and are now more common, they are not a new invention. Indeed, magazines of more than ten rounds existed before the creation of the United States.
For hundreds of years, firearms manufacturers have sought to increase the number of rounds that can be fired without reloading. The first known firearm able to fire more than ten rounds without reloading was a 16-shooter, created in 1580. It used “superposed” loads rounds were stacked above one another. One of the most successful and early multi-shot firearms was the Puckle Gun of 1718, which used pre-loaded, 11-shot revolving cylinders. The cylinders could be removed and replaced, allowing for continual rapid fire. Lewis and Clark carried with them a repeating Girardoni air rifle, designed around 1780, which had a 20-round capacity. European armies used the gun, which was powerful enough to take down elk.
Developments continued into the 19th century. The Jennings rifle of 1821 could fire 12 shots before reloading. “Pepperbox” pistols of the 1830s sometimes had as many as 18 or 24 independently firing barrels. The first handgun to use a detachable box magazine was the ten-round harmonica pistol, originally developed in the 1830s and patented in 1862. From the Volcanic repeater of 1855 to the series of Winchester lever-action rifles, to the Josselyn belt-fed chain pistol to the Luger semi-automatic pistol with detachable magazines of up to 32 rounds, repeating firearms with ten-round capacities or more were common by the end of the century. For some 400 years, firearm designers have had this same purpose in mind: allowing for repeated firing without reloading.
Sunnyvale’s draconian restriction on magazine capacity has no support in American legal history. When the United States ratified the Second Amendment, there were no laws restricting magazine size, even though internal magazines holding more than ten rounds existed at the time. As the Court noted in Heller v. District of Colombia, “Law prohibiting magazines are not ‘longstanding and thereby deserving of a presumption of validity.’” The first laws to restrict magazine size were state laws enacted in the Prohibition Era, and those handful of laws simply banned the sales of guns with such capacities—not magazines, and not their mere possession. Some were later repealed. The only widespread restriction on magazine size came in 1994 when Congress enacted a ban on magazines holding more than ten rounds. This law was then allowed to expire ten years later, in part because of its ineffectiveness in crime prevention. Although today some states have restrictions on the sale and manufacture of certain magazines, typically they have grandfather clauses for possession. Sunnyvale is extreme in requiring otherwise law-abiding citizens to remove their magazines from the city or to hand them over to the local government for destruction.
It is common for law-abiding citizens to possess magazines with capacities of more than ten rounds. In the United States, the magazines number in the tens of millions, and they are commonly used for recreational target shooting, competition shooting, collecting, hunting, and self-defense inside and outside of the home. The district court erroneously sought a determination of common usage for self-defense based on how many times justifiable homicides were carried out using more than ten rounds. This methodology is severely flawed.
The use of firearms includes merely presenting the firearm in a hostile situation, without firing a shot. This alone has been shown to deter violent crime. Further, limiting the number of rounds—most of which are statistically unlikely to strike the vital areas of a determined assailant—may significantly hinder one’s ability to defend himself. Multiple assailants may be present. Defenders become relatively weak and exposed if they must detach a spent magazine, retrieve another, load it, and then chamber a new round during times of crisis and emergency. This is especially true for those with disabilities or who otherwise have difficulty changing magazines. Far from providing for public safety, Sunnyvale’s law may disadvantage the law-abiding citizen while helping violent criminals.
Final Outcome
The Ninth Circuit rejected CCJ’s argument, instead ruling in favor of the City of Sunnyvale. Despite CCJ’s clear evidence that the common use of such magazines has a long history of protection in American legal history, and although CCJ’s argument reinforced the Supreme Court’s previous determination that the Second Amendment protects a fundamental right based on history and tradition, the lower courts nonetheless applied the less-stringent standard of intermediate scrutiny to the ordinance. Laws infringing on fundamental rights are supposed to face strict scrutiny according to the federal judiciary. Fyock did not appeal to the Supreme Court.
