Ever since the U.S. Supreme Court ruled in McDonald v. Chicago (2010) that the Second Amendment restricts the actions of the states as well as the federal government, the constitutionality of state laws related to firearms has been less than certain.

It was only two years earlier that the Supreme Court had declared, with its ruling in District of Columbia v. Heller, that the right to keep and bear arms is an individual right that does not depend on participation in a state militia. The McDonald case established that this is a fundamental right that applies to the states through the Fourteenth Amendment, which bars the states from denying liberty to any person without due process of law.

Beyond that, the details are still to be worked out.

One such detail is the constitutionality of Californias ban on the possession of large capacity magazines (LCMs), those capable of holding more than ten rounds. In 2000, California banned the manufacture, importation and sale of LCMs, but state residents who acquired LCMs prior to 2000 were grandfathered and allowed to keep them.

That is, until voters approved Proposition 63 in 2016. That measure made it unlawful to possess an LCM after July 2017. The law was immediately challenged.

In mid-August, the Ninth Circuit Court of Appeals agreed with the plaintiffs and struck down the ban. Judge Kenneth Lee wrote in the majority opinion, Even well-intentioned laws must pass constitutional muster. The ruling said Californias ban on possession of LCMs strikes at the core of the Second Amendmentthe right to armed self-defense.

Or does it?

One member of the three-judge panel dissented, writing that the majority opinion conflicted with an earlier case decided in the Ninth Circuit that upheld a similar law. And on Tuesday, a New Jersey law banning LCMs was upheld by the Third Circuit Court of Appeals.

California Attorney General Xavier Becerra has filed an appeal with the Ninth Circuit asking for a rehearing by an 11-judge panel. But by fighting for Californias ban on the possession of LCMs, Becerra may be risking that the U.S. Supreme Court will eventually hear the case and use it to strike down a broader range of state gun restrictions.

The dispute between the circuits, and between the judges, centers on the entirely subjective judgment of whether a law is a reasonable regulation or a severe burden on core Second Amendment rights. Since the McDonald case, the U.S. Supreme Court has passed up opportunities to hear cases that could more specifically define the boundaries of state regulation of firearms.

In 2017, justices declined the opportunity to hear Peruta v. California, in which the issue was the right of ordinary, law-abiding citizens to carry handguns outside the home for self-defense. Edward Peruta had been denied a concealed carry permit by the San Diego County sheriff on the grounds that self-defense was not sufficient good cause for the issuance of a permit.

If the current California case, Duncan v. Becerra, eventually reaches the justices, it could lead to a narrow ruling limited to the constitutionality of Californias 2016 ban on possession of property that was legally acquired years before. However, if the justices agree to hear the case, it could ultimately strengthen Second Amendment rights more generally, appropriately narrowing the scope of state power to limit a fundamental right.

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California and the Second Amendment - LA Daily News