Maine’s Attorney General Signs Onto Amicus Brief Supporting California’s Large-Capacity Magazine Ban

Maine Attorney General Aaron Frey has signed onto an amicus brief in favor of upholding California’s long-controversial ban on large-capacity magazines.

As part of the most recent development in a legal saga dating back to 2017, Attorney General Frey has joined a cohort of nineteen states, plus the District of Columbia, in advocating for the Ninth Circuit Court of Appeals in support of California’s ban.

California’s Large-Capacity Magazine Ban

The California state law at the heart of this legal controversy creates a “criminal liability” for “any person…who manufacturers or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives, lends, buys, or receives” a large-capacity magazine.

According to the law, a large-capacity magazine is defined as “any ammunition feeding device with the capacity to accept more than 10 rounds.”

How We Got Here: A Breakdown of the Legal Battle

As soon as this law passed in 2017, California residents challenged the ban in court. After a two-year legal battle, the district court declared the ban unconstitutional. This decision was affirmed by a three-judge panel from the Ninth Circuit on appeal.

The Ninth Circuit then took the case en banc — meaning that it was heard by all eleven judges from the court heard the case.

At that point, a majority of the judges decided to reverse the previous rulings on the ban, arguing that it did not violate any rights set forth in the Constitution.

In response, the plaintiffs in the case filed a petition for a writ of certiorari with the Supreme Court at the beginning of 2022.

While their petition was pending, the Supreme Court issued its opinion in the case of New York State Rifle & Pistol Ass’n v. Bruen — in which the Justices outlined a framework for the evaluation of Second Amendment claims that is “centered on constitutional text and history.”

“Historical analysis can sometimes be difficult and nuanced, but reliance on history to inform the meaning of constitutional text is more legitimate, and more administrable, than asking judges to ‘make difficult empirical judgments’ about ‘the costs and benefits of firearms restrictions,’ especially given their ‘lack [of] expertise’ in the field,” the majority opinion read.

“To determine whether a firearm regulation is consistent with the Second Amendment, [relevant Supreme Court decisions] point toward at least two relevant metrics: first, whether modern and historical regulations impose a comparable burden on the right of armed self-defense, and second, whether that regulatory burden is comparably justified,” the Justices explained in their opinion.

In light of this ruling, the Supreme Court granted the plaintiff’s petition in the case in order to vacate — or legally void — the Ninth Circuit’s en banc reversal and remanded the case for “further proceedings consistent with Bruen.”

The Ninth Circuit’s en banc panel then sent the case back down to the district court level for reconsideration under the guidelines laid out in Bruen.

The United States District Court for the Southern District of California then ruled — based on the Bruen framework — that the state’s large-capacity magazine ban was, in fact, unconstitutional.

“There is no American tradition of limiting ammunition capacity and the 10-round limit has no historical pedigree and it is arbitrary and capricious,” the decision read. “It is extreme.”

“Based on this hypothetical statistically average case scenario, the State permits its citizen to have a gun, but the State decides the number of rounds in the gun that it finds suitable,” the ruling continued.

As part of this ruling, enforcement of the ban was permanently enjoined — or prohibited.

California’s attorney general then appealed the District Court’s decision and requested a stay pending appeal in the Ninth Circuit.

A majority of the panel’s judges granted the motion to stay, arguing that:

• The California Attorney General is “likely to succeed” in defending the ban;
• California would be “irreparably harmed” due to the “significant threats to public safety” posed by large-capacity magazines;
• Staying the district court’s order would not “substantially injure other parties” because they would still be able to “purchase and possess a wide range of firearms, as much ammunition as they want, and an unlimited number of magazines containing ten rounds or fewer;”
• “The public interests tips in favor of a stay” because there is “a compelling interest in promoting public safety, as mass shootings nearly always involve large-capacity magazines, and, although the public has an interest in possessing firearms and ammunition for self-defense, that interest is hardly affected by this stay.”

Since then, the Ninth Circuit has been in the process of accepting and processing a variety of documents related to the case — including amicus briefs, such as the one filed by Aaron Frey and nineteen other attorneys general.

The November Amicus Brief Signed by Aaron Frey

The amicus brief — signed onto by Frey — argues that the District Court misapplied the framework outlined in Bruen when it concluded the ban was unconstitutional.

Firstly, the attorneys general contend that “large-capacity magazines are not ‘Arms’ under the Second Amendment’s plain text because they are neither commonly used nor useful for self-defense.”

Secondly, they suggest that “historical understandings of the term ‘Arms’ did not encompass container accessories such as large-capacity magazines.”

Thirdly and finally, they claim that California’s ban is “consistent with this Nation’s historical tradition of firearm regulation,” quoting the language used in Bruen to describe the Supreme Court’s new Second Amendment interpretation protocol.

“The Court has recognized the constitutionality of laws banning categories of weapons…because certain ‘type[s] of weapon[s]’ are simply ‘not eligible for Second Amendment protection,'” the brief says.

“Laws like California’s, which restrict accessories that cannot by themselves be used for offensive or defensive purposes but nevertheless enhance the lethality of weapons, dot the national landscape,” the attorneys general argue.

Later in the briefing, it is suggested that the Second Amendment does not protect large-capacity magazines on account of the fact that they are “not ‘arms’ in ‘common use’ for self-defense today'” which they explain is “a prerequisite for Second Amendment protection,” arguing that they are “much more like machineguns and military-grade weaponry than they are like the many different types of firearms that are used for individual self-defense.”

The last major portion of the amicus brief is dedicated to outlining and illustrating the attorneys general’s belief that “California’s magazine capacity restriction is analogous to the historical practices of regulating the storage of ammunition and imposing restrictions on new, and distinctly dangerous, forms of weaponry.”

“In choosing to restrict the capacity of magazines within its borders,” the amicus brief concludes, “California acted to prevent these harms, without correspondingly burdening the right to self-defense. Its choice is consistent with a long tradition of relevantly similar historical antecedents, and it comports fully with the Second Amendment.”

Click Here to Read the Full Amicus Brief Signed Onto By Attorney General Frey

As of now, the ultimate fate of California’s large-capacity magazine ban remains unclear as this years-long legal battle continues.