Virginia Duncan v. Rob Bonta, in his official capacity as Attorney General of the State of California

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VIRGINIA DUNCAN; PATRICK
LOVETTE; DAVID MARGUGLIO;
CHRISTOPHER WADDELL;
CALIFORNIA RIFLE & PISTOL
ASSOCIATION, INC., a California
corporation,
Plaintiffs-Appellees,
v.
ROB BONTA, in his official capacity
as Attorney General of the State of
California,
Defendant-Appellant.
No. 23-55805
D.C. No.
3:17-cv-01017-
BEN-JLB
ORDER
Filed October 10, 2023
Before: MURGUIA, Chief Judge, and S.R. THOMAS,
GRABER, WARDLAW, PAEZ, BERZON, IKUTA,
HURWITZ, R. NELSON, BUMATAY and VANDYKE,
Circuit Judges.
Order;
Dissent by Judge R. Nelson;
Dissent by Judge Bumatay

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2 DUNCAN V. BONTA
SUMMARY*
Second Amendment
The en banc court granted the California Attorney
General’s emergency motion for a partial stay pending
appeal of the district court’s order declaring as
unconstitutional and enjoining enforcement of California
Penal Code section 32310(a), which bans large capacity
magazines, defined as “any ammunition feeding device with
the capacity to accept more than 10 rounds.”
Plaintiffs challenged the constitutionality of Section
32310 under the Second Amendment. The en banc court,
citing Ninth Cir. Gen. Order 3.6(b), accepted this appeal and
the motion for an emergency stay as a comeback case.
The en banc court first held that the Attorney General
was likely succeed on the merits. The Attorney General
made strong arguments that Section 32310 comports with
the Second Amendment under New York State Rifle & Pistol
Ass’n v. Bruen, 142 S. Ct. 2111 (2022). Notably, of the ten
other federal district courts that have considered a Second
Amendment challenge to large-capacity magazine
restrictions since Bruen was decided, only one of those
courts—the Southern District of Illinois—granted a
preliminary injunction, finding that the challenge was likely
to succeed on the merits. In that case, the Seventh Circuit
subsequently stayed the district court’s order pending
appeal—the very relief the Attorney General sought here.
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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DUNCAN V. BONTA 3
Second, the en banc court determined that the Attorney
General had shown that California will be irreparably
harmed absent a stay pending appeal by presenting evidence
that large-capacity magazines pose significant threats to
public safety.
Third, the en banc court determined that it did not appear
that staying portions of the district court’s order while the
merits of this appeal were pending would substantially injure
other parties interested in the proceedings.
Finally, the en banc court concluded that the public
interest tipped in favor of a stay.
Dissenting, Judge R. Nelson joined Judge Bumatay’s
dissent because the decision to stay the district court’s order
pending appeal could not be squared with
Bruen. Additionally, serious questions about the en banc
court’s statutory authority under 28 U.S.C. § 46(c) were
raised by the majority’s decision to proceed with this new
appeal en banc in the first instance rather than sending it to
a three-judge panel or requesting a new en banc vote from
all circuit judges in regular active service. These statutory
concerns were determinative, as five of the seven judges in
the majority were senior judges.
Dissenting Judge Bumatay, joined by Judges Ikuta, R.
Nelson and VanDyke, stated that California is not entitled to
an emergency stay of the district court’s
injunction. Reviewing this country’s historical tradition
consistent with Bruen demonstrated that the Second
Amendment does not countenance California’s ban on large-
capacity magazines. Possessing magazines holding more
than ten rounds of ammunition by law-abiding citizens is
protected conduct under the Second Amendment, and

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4 DUNCAN V. BONTA
neither California’s asserted irreparable injury nor the
balance of interests favored a stay.
ORDER
California Penal Code section 32310(a) creates criminal
liability for “any person . . . who manufactures 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 (“LCM”), which is
defined as “any ammunition feeding device with the capacity
to accept more than 10 rounds”. Cal. Penal Code § 16740.
Plaintiffs—five individuals and the California Rifle & Pistol
Association, Inc.—filed this action in the Southern District
of California challenging the constitutionality of Section
32310 under the Second Amendment. On September 22,
2023, the district court issued an order declaring Section
32310 “unconstitutional in its entirety” and enjoining
California officials from enforcing the law. Duncan v.
Bonta, No. 17-CV-1017-BEN (JLB), 2023 WL 6180472, at
*35–36 (S.D. Cal. Sept. 22, 2023). On September 26,
Defendant Rob Bonta, the Attorney General of California,
filed an emergency motion for a partial stay pending appeal.
The Attorney General seeks to stay “all portions of the order
except those regarding Sections 32310(c) and (d), which
relate to large-capacity magazines that were acquired and
possessed lawfully prior to the district court’s order granting
a permanent injunction.” Mot. at 2. We grant the motion.
When deciding whether to grant a stay pending appeal,
“a court considers four factors: ‘(1) whether the stay
applicant has made a strong showing that he is likely to

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DUNCAN V. BONTA 5
succeed on the merits; (2) whether the applicant will be
irreparably injured absent a stay; (3) whether issuance of the
stay will substantially injure the other parties interested in
the proceeding; and (4) where the public interest lies.’”
Nken v. Holder, 556 U.S. 418, 425–26 (2009) (quoting
Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). Here, a stay
is appropriate.
First, we conclude that the Attorney General is likely to
succeed on the merits.1 In New York State Rifle & Pistol
Ass’n v. Bruen, the Supreme Court reiterated that “[l]ike
most rights, the right secured by the Second Amendment is
not unlimited.” 142 S. Ct. 2111, 2128 (2022) (quoting Dist.
of Columbia v. Heller, 554 U.S. 570, 626 (2008)). The
Attorney General makes strong arguments that Section
1 Importantly, this order granting a partial stay pending appeal, neither
decides nor prejudges the merits of the appeal, which will be decided
after full briefing and oral argument. Cf. Doe v. San Diego Unified Sch.
Dist., 19 F.4th 1173, 1177 n.4 (9th Cir. 2021) (explaining that
“predicting the likelihood of success of the appeal” is a “step removed
from the underlying merits” (quoting E. Bay Sanctuary Covenant v.
Biden, 993 F.3d 640, 660–61 (9th Cir. 2021))); Doe #1 v. Trump, 957
F.3d 1050, 1062 (9th Cir. 2020) (noting that when adjudicating a motion
before considering the merits of the underlying appeal, “we must take
care not to prejudge the merits of the appeal, but rather to assess the
posture of the case in the context of the necessity of a stay pending
presentation to a merits panel”). Our dissenting colleagues fault us for
granting a stay pending appeal in a summary order. A summary order is
not unusual in these circumstances, given the time constraints and
limited briefing. Indeed, earlier this year, the Seventh Circuit granted a
similar stay in a single sentence: “based on our review of the parties’
submissions, the breadth of the litigation, and the differing conclusions
reached by different district judges, we conclude that the stay of the
district court’s order already entered will remain in effect until these
appeals have been resolved and the court’s mandate has issued.”
Herrera v. Raoul, No. 23-1793 (7th Cir. May 12, 2023) (order).

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6 DUNCAN V. BONTA
32310 comports with the Second Amendment under Bruen.
Notably, ten other federal district courts have considered a
Second Amendment challenge to large-capacity magazine
restrictions since Bruen was decided. Yet only one of those
courts—the Southern District of Illinois—granted a
preliminary injunction, finding that the challenge was likely
to succeed on the merits. See Barnett v. Raoul, 2023 WL
3160285 (S.D. Ill. Apr. 28, 2023) (granting plaintiffs’
preliminary injunction); Or. Firearms Fed’n v. Kotek, 2023
WL 4541027 (D. Or. July 14, 2023) (holding that the state’s
restriction on large-capacity magazines did not violate the
Second Amendment); Brumback v. Ferguson, 2023 WL
6221425 (E.D. Wash. Sept. 25, 2023) (denying plaintiffs’
motion for a preliminary injunction); Nat’l Ass’n for Gun
Rights v. Lamont, 2023 WL 4975979 (D. Conn. Aug. 3,
2023) (same); Herrera v. Raoul, 2023 WL 3074799 (N.D. Ill.
Apr. 25, 2023) (same); Hanson v. Dist. of Columbia, 2023
WL 3019777 (D.D.C. Apr. 20, 2023) (same); Del. State
Sportsmen’s Ass’n v. Del. Dep’t of Safety & Homeland Sec.,
2023 WL 2655150 (D. Del. Mar. 27, 2023) (same); Bevis v.
City of Naperville, Ill., 2023 WL 2077392 (N.D. Ill. Feb. 17,
2023) (same); Ocean State Tactical, LLC v. Rhode Island,
646 F. Supp. 3d 368 (D.R.I. 2022) (same); Or. Firearms
Fed’n, Inc. v. Brown, 644 F. Supp. 3d 782 (D. Or. 2022)
(same). In that case, the Seventh Circuit subsequently stayed
the district court’s order pending appeal—the very relief the
Attorney General seeks here. Herrera v. Raoul, No. 23-1793
(7th Cir. May 12, 2023) (order).
Second, the Attorney General has shown that California
will be irreparably harmed absent a stay pending appeal by
presenting evidence that large-capacity magazines pose
significant threats to public safety. If a stay is denied,
California indisputably will face an influx of large-capacity

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DUNCAN V. BONTA 7
magazines like those used in mass shootings in California
and elsewhere. As Plaintiffs concede, “[i]n 2019, when the
district court first enjoined section 32310, decades of pent-
up demand unleashed and Californians bought millions of
magazines over ten rounds, essentially buying the nation’s
entire stock of them in less than one week.” Resp. at 10–11.
Third, it does not appear that staying portions of the
district court’s order while the merits of this appeal are
pending will substantially injure other parties interested in
the proceedings. This stay does not interfere with the
public’s ability “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.” Mot. at 12. Section 32310 has no effect on these
activities.
Finally, we conclude that the public interest tips in favor
of a stay. The public has 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.
In sum, we conclude that a stay pending appeal is
warranted. We emphasize that at this stage of the litigation,
we decide only whether to stay, in part, the district court’s
order while this appeal is pending.
Some of our colleagues have raised procedural questions
regarding the propriety, under circuit rules and practices, of
the en banc panel’s decision to accept this appeal as a
comeback case. These contentions are without merit. The
Supreme Court has held that the governing statute leaves it
to each Court of Appeals “to establish the procedure for
exercise of the [en banc] power.” Western Pac. R.R. Corp.

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8 DUNCAN V. BONTA
v. Western Pac. R.R. Co., 345 U.S. 247, 257 (1953). In this
circuit, “matters arising after remand” are directed to the en
banc court, which “will decide whether to keep the case or
to refer it to the three judge panel.” Ninth Cir. Gen. Order
3.6(b). Here, the en banc panel has exercised its discretion
to keep the comeback appeal, as our rules contemplate.
“[W]hen a case is heard or reheard en banc, the en banc
panel assumes jurisdiction over the entire case, see 28 U.S.C.
§ 46(c) . . . .” Summerlin v. Stewart, 309 F.3d 1193, 1193
(9th Cir. 2002) (Mem.). General Order 6.4, moreover,
provides that emergency motions in potential comeback
cases are directed to the previous panel that heard the case,
which in this case, is the en banc court. Ninth Cir. Gen.
Order 6.4(a). Thus, both this appeal and the motion for an
emergency stay are properly before the en banc panel.
One of our colleagues raises novel questions about
whether our rules are consistent with 28 U.S.C. § 46(c). We
have asked the parties to brief these issues and will address
them in due course.
The Attorney General’s emergency motion for a partial
stay pending appeal (Doc. 2) is GRANTED.

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DUNCAN V. BONTA 9
R. NELSON, Circuit Judge, dissenting:
I join Judge Bumatay’s dissent, as the majority’s
decision to stay the district court’s order pending appeal
cannot be squared with New York State Rifle & Pistol
Association, Inc. v. Bruen, 142 S. Ct. 2111 (2022).
But I have a more fundamental concern with the
majority’s decision to proceed with this new appeal en banc
in the first instance. No other circuit court would allow a
prior en banc panel to hear a comeback case without an
intervening majority vote of the active judges.
In 2022, this panel remanded the prior appeal to the
district court and the mandate issued. When this new appeal
was filed, the appeal could have been sent to a three-judge
panel; or a new en banc vote could have been requested from
“all circuit judges in regular active service,” 28 U.S.C.
§ 46(c). Both those options are firmly rooted in § 46’s
statutory text and consistent with our General Orders.
Moreover, either option would avoid disenfranchising seven
new active judges (a full quarter of the court’s active judges)
from participating in this new appeal. Our General Orders
do not require this. And we have never followed this process
in such circumstances.
The majority, however, chose a third option—one that
raises serious questions about this panel’s statutory authority
under § 46(c) that we must now address. And these statutory
concerns are determinative, as five of the seven judges in the
majority (more than 70 percent) are senior judges.
Complying with statutory requirements is not voluntary.
See, e.g., Am.-Foreign S.S. Corp., 363 U.S. 685, 685–86
(1960), superseded by statute § 46(c) (1963) (holding that
prior version of § 46 did not permit senior judges ever to

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10 DUNCAN V. BONTA
serve on an en banc panel); United States v. Hudspeth, 42
F.2d 1015 (7th Cir. 1994) (holding that as amended § 46(c)
did not allow a judge who took senior status between the
argument and the decision to serve on the en banc panel),
superseded by statute § 46(c) (1996).
Just four years ago, we were chastened by the Supreme
Court for ignoring § 46 in an en banc case. See, e.g., Yovino
v. Rizo, 139 S. Ct. 706, 708 (2019) (vacating our en banc
decision for counting a judge’s determinative vote who
passed away before the decision). We should not proceed
down such an uncertain statutory path, particularly when
viable alternatives are available. Our decision to proceed
with this process undermines public confidence in the
process and our ultimate decision. I respectfully dissent.
BUMATAY, Circuit Judge, joined by IKUTA, R.
NELSON, and VANDYKE, Circuit Judges, dissenting:
If the protection of the people’s fundamental rights
wasn’t such a serious matter, our court’s attitude toward the
Second Amendment would be laughably absurd. For years,
this court has shot down every Second Amendment
challenge to a state regulation of firearms—effectively
granting a blank check for governments to restrict firearms
in any way they pleased. We got here by concocting a two-
part tiers-of-scrutiny test, which permitted judges to interest-
balance away the Second Amendment guarantee. But this
approach was “nothing more than a judicial sleight-of-hand,
. . .feign[ing] respect to the right to keep and bear arms” but
never enforcing its protection. Duncan v. Bonta, 19 F.4th

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DUNCAN V. BONTA 11
1087, 1147 (9th Cir. 2021) (en banc) (Bumatay, J.,
dissenting).
Several of us warned that our precedent contradicted the
commands of both the Constitution and the Supreme Court.
See id. (Bumatay, J., dissenting, joined by Ikuta & R.
Nelson, JJ.); id. at 1159 (VanDyke, J., dissenting). We
cautioned this very panel of the need to jettison our circuit’s
ahistorical balancing regime and adhere to an analysis more
faithful to the constitutional text and its historical
understanding. But our warnings went unheard.
Last year, the Supreme Court had enough of lower
courts’ disregard for the Second Amendment. It decisively
commanded that we must no longer interest-balance a
fundamental right and that we must look to the Second
Amendment’s text, history, and tradition to assess modern
firearm regulations. N.Y. State Rifle & Pistol Ass’n v. Bruen,
142 S. Ct. 2111, 2129–31 (2022). Now, firearm regulations
may stand only after “the government . . . affirmatively
prove[s] that [they are] part of the historical tradition that
delimits the outer bounds of the right to keep and bear arms.”
Id. at 2127.
Despite this clear direction, our court once again swats
down another Second Amendment challenge. On what
grounds? Well, the majority largely doesn’t think it worthy
of explanation. Rather than justify California’s law by
looking to our historical tradition as Bruen commands, the
majority resorts to simply citing various non-binding district
court decisions. There’s no serious engagement with the
Second Amendment’s text. No grappling with historical
analogues. No putting California to its burden of proving the
constitutionality of its law. All we get is a summary order,
even after the Supreme Court directly ordered us to apply

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12 DUNCAN V. BONTA
Bruen to this very case. The Constitution and Californians
deserve better.
* * *
At issue here is California’s ban on so-called large-
capacity magazines.1 See Cal. Penal Code § 32310. These
magazines refer to “any ammunition feeding device with the
capacity to accept more than 10 rounds.” Cal. Penal Code §
16740. California law prohibits manufacturing, importing,
selling, receiving, or purchasing these magazines. See Cal.
Penal Code § 32310(a). The law also punishes possessing
large-capacity magazines with up to one year of
imprisonment. § 32310(c). The law requires persons who
possessed this type of magazine before July 1, 2017, to
remove, sell, or surrender the magazine. § 32310(d).
California’s ban on large-capacity magazines has moved
up and down the federal courts since 2017. That year,
several California citizens challenged the law’s
constitutionality. Two years later, the district court ruled
that the ban was unconstitutional. Duncan v. Becerra, 366
F. Supp. 3d 1131, 1147 (S.D. Cal. 2019). On appeal, a three-
judge panel affirmed that decision. Duncan v. Becerra, 970
F.3d 1133, 1141 (9th Cir. 2020). Our court took the case en
banc. Duncan v. Becerra, 988 F.3d 1209, 1210 (9th Cir.
2021). A majority of that eleven-judge panel reversed,
holding that interest-balancing favored the constitutionality
of the law—just as we have done for every firearm
regulation that our court has encountered. Duncan v. Bonta,
1 We use the term “large-capacity magazine” for consistency with the
majority but note that magazines with the capacity to accept more than
ten rounds of ammunition are standard issue for many firearms. Thus,
we would be more correct to refer to California’s ban on “standard-
capacity magazines.”

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DUNCAN V. BONTA 13
19 F.4th 1087 (9th Cir. 2021) (en banc). All four of us
dissented from that decision. Id. at 1140 (Bumatay, J.,
dissenting, joined by Ikuta & R. Nelson, JJ.); id. at 1159
(VanDyke, J., dissenting). The Supreme Court vacated our
en banc interest-balancing and remanded for further
consideration in light of Bruen. Duncan v. Bonta, 142 S. Ct.
2895 (2022). Our en banc panel then remanded the case to
the district court. Duncan v. Bonta, 49 F.4th 1228, 1231 (9th
Cir. 2022).
The district court again ruled that California’s large-
capacity magazine ban violated the Constitution—this time
using the clear instructions from Bruen. Duncan v. Bonta,
No. 17-cv-1017-BEN (JLB), 2023 WL 6180472, at *35
(S.D. Cal. Sept. 22, 2023). In a thorough 71-page opinion,
the district court held that magazines were protected arms
under the Second Amendment and that California failed to
meet its burden of showing a historical analogue for the
prohibition. Id. The district court enjoined California
officials from enforcing § 32310. Id. at *36. At California’s
request, the district court stayed its order for ten days. Id.
California then appealed to our court. It now seeks an
emergency stay of the injunction pending appeal, except as
to enforcing § 32310(d).
In an unusual move, our en banc panel retained the
emergency stay motion as a comeback case in the first
instance—bypassing our traditional three-judge
consideration of motions. Indeed, it’s perhaps the first time
our court has ever done so. The majority then granted an
administrative stay, with four judges dissenting. Now a
majority of the en banc court grants the stay pending
appeal—with little analysis or explanation of Bruen’s
requirements—saving California’s ban on large-capacity
magazines yet again.

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14 DUNCAN V. BONTA
Three times now, the Supreme Court has warned courts
not to treat the Second Amendment as a disfavored right.
See District of Columbia v. Heller, 554 U.S. 570, 594
(2008); McDonald v. City of Chicago, 561 U.S. 742, 780
(2010); Bruen, 142 S. Ct. at 2156. We should follow the
Supreme Court’s direction. Reviewing our historical
tradition consistent with Bruen demonstrates that the Second
Amendment does not countenance California’s ban on large-
capacity magazines.
Because the majority once again deprives Californians
of a fundamental right, we respectfully dissent.
I.
The Second Amendment’s Text and Historical
Understanding
The operative clause of the Second Amendment
commands that the “right of the people to keep and bear
Arms, shall not be infringed.” U.S. Const. Amend. II. It
codifies a preexisting, fundamental right—one rooted in the
“natural right of resistance and self-preservation.” Heller,
554 U.S. at 594 (quoting 1 Blackstone, Commentaries on the
Laws of England 140). Thus, central to the Second
Amendment right is the “inherent right of self-defense.” Id.
at 628. And the right is so “deeply rooted in this Nation’s
history and tradition” that it is “fully applicable to the
States.” McDonald, 561 U.S. at 750, 767 (simplified).
Despite lower courts’ treatment of the constitutional
provision for many years, the right to bear arms is not a
“second-class right, subject to an entirely different body of
rules than the other Bill of Rights guarantees.” Bruen, 142
S. Ct. at 2156 (simplified). The Second Amendment is not
subject to “any judge-empowering interest-balancing

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DUNCAN V. BONTA 15
inquiry.” Id. at 2129 (simplified). That’s because ‘[t]he very
enumeration of the right takes out of the hands of
government—even the Third Branch of Government—the
power to decide on a case-by-case basis whether the right is
really worth insisting upon.” Id. (quoting Heller, 554 U.S.
at 634). The Court thus rejected the two-part “means-end
scrutiny” test adopted by our court. Id. at 2127.
In its place, the Supreme Court directed lower courts to
follow a “fairly straightforward” methodology “centered on
constitutional text and history.” Id. at 2128–29, 2131.
Under this framework, courts are guided by “the plain text
of the Second Amendment.” Id. at 2134. And “when the
Second Amendment’s plain text covers an individual’s
conduct, the Constitution presumptively protects that
conduct.” Id. at 2126. Of course, this does not mean the
Second Amendment’s “textual elements” give people the
“right to keep and carry any weapon whatsoever in any
manner whatsoever and for whatever purpose.” Id. at 2128
(quoting Heller, 554 U.S. at 626).
So what do the Second Amendment’s “textual elements”
convey?
First, when considering the “people” protected by the
Second Amendment, “ordinary, law-abiding, adult citizens”
are easily encompassed within the term. Id. at 2134.
Second, “Arms” refers to “weapons ‘in common use’
today for self-defense.” Id. Such a definition excludes
“dangerous and unusual weapons.” Id. at 2128. And
“Arms” does not mean “only . . . those arms in existence in
the 18th century.” Id. at 2132 (quoting Heller, 554 U.S. at
554). Instead, it “covers modern instruments that facilitate
armed self-defense.” Id.

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16 DUNCAN V. BONTA
Third, “keep” and “bear” denote the “course of conduct”
protected by the Second Amendment. Id. at 2134–35. In
Bruen, the ordinary definition of “bear” “naturally
encompasses” “carrying handguns publicly for self-
defense.” Id. And at a minimum, “keep” encompasses the
possession of “firearms in the[] home, at the ready for self-
defense.” Id. at 2134.
If the “course of conduct” at issue falls within the
“textual elements” of the Second Amendment, then the
Constitution “presumptively protects that conduct.” Id. at
2130, 2134. The burden then falls on the government to
prove that the firearm regulation is “consistent with this
Nation’s historical tradition of firearm regulation.” Id. at
2126.
To answer this question, we must engage in “reasoning
by analogy—a commonplace task for any lawyer or judge.”
Id. at 2132. Thus, courts must determine whether a historical
regulation serves as a “proper analogue” to modern firearm
regulations. Id. And whether a historical regulation is a
good fit as a historical analogue depends on whether they are
“relevantly similar.” Id. (simplified). In turn, we judge
similarity based on the “how and why” of the two
regulations. Id. at 2132–33. That is, “whether modern and
historical regulations impose a comparable burden on the
right of armed self-defense and whether that burden is
comparably justified are central considerations when
engaging in an analogical inquiry.” Id. at 2133 (simplified).
In conducting our inquiry, the Court left us with a
warning: “[T]he Second Amendment is neither a regulatory
straightjacket nor a regulatory blank check.” Id. While we
are under no duty to “uphold every modern law that remotely
resembles a historical analogue,” this inquiry “requires only

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DUNCAN V. BONTA 17
that the government identify a well-established and
representative historical analogue, not a historical twin.” Id.
(simplified). So while the government doesn’t need a “dead
ringer for historical precursors,” it also cannot satisfy its
burden by resorting to historical “outliers.” Id. (simplified).
To illustrate how this methodology works, we can look
to the Court’s analysis of New York’s public-carry law in
Bruen. New York sought to justify its restricted public-carry
licensure scheme by referencing: (1) colonial and founding
era common-law offenses prohibiting unpeaceable, public
carry, id. at 2145–46; (2) mid-18th century proscriptions on
concealed carrying of pistols and other small weapons, id. at
2146–47; and (3) mid-18th century surety statutes that
required certain individuals to post bond before carrying
weapons publicly, id. at 2148–50. The Court understood
these historical regulations to raise the kinds of public-safety
concerns raised by a strict public-carry requirement. But
“because none operated to prevent law-abiding citizens with
ordinary self-defense needs from carrying arms in public for
that purpose,” they could not suffice to establish a
“relevantly similar” analogue. Id. at 2132, 2150.
Finally, before turning to the application of this law to
this case, we address a criticism often lodged at the Court’s
so-called “text, history, and tradition” approach—the
confusion between “history” and “tradition.” What do
“history” and “tradition” mean in this context? Do they
mean something different? Well, when assessing analogous
regulations under the Second Amendment, it is relatively
straightforward.
History means that analogous laws must be sufficiently
“longstanding” and from the relevant “timeframe.” Id. at
2131, 2133 (citing Heller, 554 U.S. at 626). That’s because

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18 DUNCAN V. BONTA
“not all history is created equal.” Id. at 2136. History’s role
in this inquiry is to help establish the public meaning of the
Constitution as “understood . . . when the people adopted”
it. Id. (citing Heller, 554 U.S. at 634–35). Thus,
“[h]istorical evidence that long predates [ratification] may
not illuminate the scope of [a constitutional] right if
linguistic or legal conventions changed [or became obsolete]
in the intervening years.” Id. at 2136. Likewise, “we must
also guard against giving postenactment history more weight
than it can rightly bear.” Id. The further we depart from
ratification, the greater the chance we stray from the
“original meaning of the constitutional text.” Id. at 2137
(simplified). Thus, the Court tells us that the public
understanding of the Second Amendment from only two
historical timeframes is relevant—from the adoption of the
Second Amendment in 1789 and from the ratification of the
Fourteenth Amendment in 1868. Id. Thus, laws enacted
after the “end of the 19th century” must be given little
weight. Id. at 2136–37 (simplified).
Tradition, on the other hand, connotes that the
comparison must be to laws with wide acceptance in
American society. Id. at 2136. Take territorial restrictions.
The Court considered them unhelpful for historical analysis
because they were “transitory” and “short lived.” Id. at
2155. Such “passing regulatory efforts by not-yet-mature
jurisdictions” do little to show what is “part of an enduring
[and broad] American tradition of state regulation.” Id. This
is all the more true because territorial laws governed less
than 1% of the American population at the time. Id.
Tradition thus demands that we don’t justify modern
regulations with reference to “outliers,” such as a law from
a “single State, or a single city, that contradicts the
overwhelming weight of other evidence” on the meaning of

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DUNCAN V. BONTA 19
the Second Amendment right. Id. at 2154 (simplified). On
the other hand, laws that enjoyed “widespread” and
“unchallenged” support form part of our tradition. Id. at
2137 (simplified).
With this understanding of the Second Amendment, we
now turn to the emergency motion.
II.
California Is Not Entitled to a Stay
The State of California moves for an emergency stay of
the injunction against enforcement of the State’s large-
capacity magazine ban pending appeal.
On review of a stay pending appeal, we must determine
whether (1) California has made “a strong showing that [it]
is likely to succeed on the merits;” (2) California will be
“irreparably injured absent a stay;” (3) issuance of the stay
will “substantially injure the other parties interested in the
proceeding;” and (4) the “public interest lies” with a stay.
Nken v. Holder, 556 U.S. 426, 426 (2009) (simplified). The
first two factors are “the most critical”; the last two factors
become relevant only if California establishes the first two
and they merge into one inquiry assessing the balance of the
public and State’s interests. Id. at 434; see also Doe #1 v.
Trump, 984 F.3d 848, 861 (9th Cir. 2020) (“When the
Government is a party to the case, the balance of the equities
and public interest factors merge.”) (simplified). Ultimately,
the issuance of a stay is a matter of discretion and California
“bears the burden of showing that the circumstances justify
an exercise of that discretion.” Nken, 556 U.S. at 433–34.
None of these factors support California’s request for a
stay. Taking seriously that “[a] stay is not a matter of right,”
id. at 433, we thus should have denied the State relief.

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20 DUNCAN V. BONTA
A.
California’s Magazine Ban Has No Likelihood of
Success
California cannot succeed on the merits of this appeal.
As a recap, to determine whether a modern regulation
survives a Second Amendment challenge, we first determine
whether California’s regulation burdens conduct within the
Amendment’s textual elements. Bruen, 142 S. Ct. at 2126.
If so, “the Constitution presumptively protects that conduct”
and the burden shifts to California to establish that the
regulation is “consistent with this Nation’s historical
tradition of firearm regulation.” Id. To meet this burden,
California must provide sufficient historical analogues to
show that the regulation may escape the Second
Amendment’s “unqualified command.” Id. (simplified).
California’s large-capacity magazine ban fails under this
framework because possessing magazines holding more
than ten rounds of ammunition by law-abiding citizens is
protected conduct under the Second Amendment,2 and
California has failed to show that the ban aligns with our
historical tradition of firearm regulation.
2 California does not dispute that Plaintiffs-Appellees are law-abiding
citizens and, thus, part of the “people” protected by the Second
Amendment. Likewise, possession of a firearm falls within the “keep
and bear” textual element and so it is conduct protected by the Second
Amendment. We thus focus on the disputed elements of this challenge.

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DUNCAN V. BONTA 21
1. Large-Capacity Magazines Are Protected
“Arms” Under the Second Amendment
To start, California halfheartedly suggests that large-
capacity magazines are not “Arms” under the Second
Amendment. We can easily dispense with this argument.
The term “bearable arms” includes any “[w]eapons of
offence” or “thing that a man wears for his defence, or takes
into his hands,” that is “carr[ied] . . . for the purpose of
offensive or defensive action.” Heller, 554 U.S. at 581, 584
(simplified).
Magazines are included within that definition. Without
protection of the components that render a firearm operable,
like magazines, the Second Amendment right would be
meaningless. After all, constitutional rights “implicitly
protect those closely related acts necessary to their exercise.”
Luis v. United States, 578 U.S. 5, 26 (2016) (Thomas, J.,
concurring). If not, then States could make an easy end-run
around the Second Amendment by simply banning firearm
components, such as magazines and ammunition. Our court
has thus recognized a “right to possess the magazines
necessary to render . . . firearms operable.” Fyock v.
Sunnyvale, 779 F.3d 991, 998 (9th Cir. 2015), abrogated on
other grounds by Bruen, 142 S. Ct. 2111. Firearm
magazines, including those holding more than ten rounds,
fall into that category.
And it makes no difference that large-capacity
magazines did not exist at the time of the Founding. While
the Second Amendment’s “meaning is fixed according to the
understandings of those who ratified it, the Constitution can,
and must, apply to circumstances beyond those the Founders
specifically anticipated.” Bruen, 142 S. Ct. at 2132
(simplified). Thus, “the Second Amendment extends, prima

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22 DUNCAN V. BONTA
facie, to all instruments that constitute bearable arms, even
those that were not in existence at the time of the founding.”
Heller, 554 U.S. at 582. So it is the common possession of
large-capacity magazines that governs our analysis, not their
specific historical pedigree.
2. Large-Capacity Magazines Are Commonly
Possessed for Self-Defense
California mainly argues that large-capacity magazines
are not in “common use” for lawful purposes like self-
defense. We take this question in two parts: First, whether
large-capacity magazines are in “common use.” Second,
whether they are used for self-defense.
a. Common Use
Both as a matter of modern statistics and historical
analogy, large-capacity magazines and their analogues are in
common use today and were at the time of the Second
Amendment’s incorporation.
While estimates vary, it is undisputed that more than 100
million large-capacity magazines circulate in the United
States. One recent study cited by the district court found that
Americans own 542 million magazines that hold more than
10 rounds today. Duncan, 2023 WL 6180472, at *4.3 And
this fact isn’t surprising given that those magazines are a
standard component on many of the Nation’s most popular
firearms, such as the Glock pistol, which commonly comes
with a magazine that can hold 17 rounds. They are lawful in
3 The district court also noted that Plaintiffs-Appellees’ expert estimates
there are between 500 million and one billion magazines able to hold
more than 10 rounds. Duncan, 2023 WL 6180472, at *4 n.30.

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DUNCAN V. BONTA 23
at least 41 States and under federal law. They account for
half of all magazines owned in the United States today.
And as a historical matter, the initial three-judge panel in
this case rightfully concluded that “[f]irearms or magazines
holding more than ten rounds have been in existence—and
owned by American citizens—for centuries. Firearms with
greater than ten round capacities existed even before our
nation’s founding, and the common use of [large-capacity
magazines] for self-defense is apparent in our shared
national history.” Duncan, 970 F.3d at 1147; see also David
B. Kopel, The History of Firearm Magazines and Magazine
Prohibitions, 78 Alb. L. Rev. 849, 851 (2015) (“In terms of
large-scale commercial success, rifle magazines of more
than ten rounds had become popular by the time the
Fourteenth Amendment was being ratified.”).
We briefly chronicled the history of firearms firing more
than ten rounds in the United States in our previous en banc
dissent. See Duncan, 19 F.4th at 1154–55 (Bumatay, J.,
dissenting). From this history, the clear picture emerges that
firearms able to fire more than ten rounds were widely
possessed by law-abiding citizens by the Second
Amendment’s incorporation. In that way, today’s large-
capacity magazines are “modern-day equivalents” of these
historical arms.
b. Lawful Purpose
While acknowledging that large-capacity magazines are
commonly owned in this country, California argues that
these magazines are not in common use for lawful purposes
like self-defense. California’s argument goes like this:
Because an average of only 2.2 shots are fired in self-defense
situations, magazines carrying more than ten shots are not

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24 DUNCAN V. BONTA
used for self-defense. There are two main problems with this
argument.
First, as an empirical and factual matter, the district
court’s findings undercut the State’s argument. After
examining the record, the district court concluded that
California’s 2.2 average-shot statistic was “suspect.”
Duncan, 2023 WL 6180472, at *12. Such a statistic, the
district court said, “lacks classic indicia of reliability” and is
based on “studies [that] cannot be reproduced and are not
peer-reviewed.” Id. at *13. Instead, the studies used by
California’s expert relied on “anecdotal statements, often
from bystanders, reported in news media, and selectively
studied” without any aid of investigatory reports. Id. (noting
that California has not provided a single police report to the
court or to the State’s own expert, no national or state
government data report on shots fired in self-defense events
exists, and no public government database corroborates the
State expert’s conclusions). The district court also noted that
the State’s expert found that though it is “exceedingly rare”
for a person to fire more than 10 rounds in self-defense, that
is not “never,” and California’s 2.2 statistic is only an
average in those rare situations. Id. at *20, 27. In this
emergency appeal, California doesn’t contend that the
district court’s factual determinations are clearly erroneous
and we are bound by them. Index Newspapers LLC v. U.S.
Marshals Serv., 977 F.3d 817, 824 (9th Cir. 2020) (“To
decide whether the [movants] have demonstrated a
likelihood that they will succeed on the merits of their claim,
we review the district court’s findings of fact for clear
error.”).
Second, and more importantly, California
misunderstands the “lawful purposes” inquiry. As discussed
below, the Supreme Court has never looked at the average

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DUNCAN V. BONTA 25
number of times that a handgun had been fired in self-
defense to determine whether it is commonly used for that
purpose. See Heller, 554 U.S. at 628–36. Likewise, it is
unnecessary to look at how often a law-abiding citizen fired
a firearm more than ten times to fend off an attacker for our
inquiry. Indeed, it would be troubling if our constitutional
rights hung on such thin evidence.
And California’s conception of a firearm’s “use” is
overly cramped. While “use” will encompass the number of
times the firearm is discharged, it is not limited to that.
“Use” will also cover the possession of a firearm for a
purpose even if not actually fired. Our criminal laws don’t
require the discharge of the firearm for it to be “used.” See,
e.g., Smith v. United States, 508 U.S. 223 (1993). That’s like
saying we don’t “use” our seatbelts whenever our cars don’t
crash. Cf. Bailey v. United States, 516 U.S. 137, 143 (1996)
(acknowledging that “use draws meaning from its context,”
such that someone can “use a gun to protect [his] house”
while “never ha[ving] to use it” (simplified)). And that a
citizen did not expend a full magazine does not mean that the
magazine was not “used” for self-defense purposes, further
undermining California’s focus on the 2.2 statistic.
It is also immaterial that large-capacity magazines are
not strictly “necessary” to ward off attackers. Lawful
purpose, not necessity, is the test. And so it is not dispositive
that a firearm or its component is not used to the full extent
of its capabilities or that it is not absolutely necessary to
accomplish its purpose. See Heller, 554 U.S. at 629 (holding
it irrelevant to the constitutionality of D.C.’s “handgun” ban
that the law allowed citizens the possession of substitutes,
like “long guns”). Indeed, we are glad that most law-abiding
citizens never have to discharge their firearms in self-
defense.

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26 DUNCAN V. BONTA
Rather than going down this statistical rabbit hole, the
Supreme Court looked to Americans’ overall choice to use a
firearm for self-defense. Take Heller and the District of
Columbia’s handgun ban. The Court didn’t dissect statistics
on self-defense situations or look at anecdotes of a
handgun’s use in self-defense. Instead, “[i]t is enough to
note,” the Court observed, “that the American people have
considered the handgun to be the quintessential self-defense
weapon.” Heller, 554 U.S. at 629. To the Court, it was
sufficient that the handgun was “overwhelmingly chosen by
American society for th[e] lawful purpose” of self-defense.
Id. at 628. Thus, “banning from the home the most preferred
firearm in the nation to keep and use for protection of one’s
home and family would fail constitutional muster” under any
standard of review. Id. at 628–29 (simplified). So
“[w]hatever the reason” for its “popular[ity],” we look to
Americans’ choice to use a firearm for self-defense to find
its purpose—not finely cut statistics of shots fired or news
clippings. Id. at 629. And unless it can be proven that a
certain firearm is unsuitable for self-defense, we must
respect the people’s choice.
Here, large-capacity magazines are the most common
magazine chosen by Americans for self-defense. Indeed,
millions of semiautomatic pistols, the “quintessential self-
defense weapon” for the American people, id., come
standard with magazines carrying over ten rounds. That
many citizens rely on large-capacity magazines to respond
to an unexpected attack is enough for our inquiry. See Ass’n
of New Jersey Rifle & Pistol Clubs, Inc. v. Att’y Gen. New
Jersey, 910 F.3d 106, 116 (3d Cir. 2018) (“The record shows
that millions of magazines are owned, often come factory
standard with semi-automatic weapons, are typically
possessed by law-abiding citizens for hunting, pest-control,

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DUNCAN V. BONTA 27
and occasionally self-defense[.]” (simplified)), abrogated by
Bruen, 142 S. Ct. at 2111. Even our court has begrudgingly
admitted as much. See Fyock, 779 F.3d at 998 (“[W]e cannot
say that the district court abused its discretion by inferring
from the evidence of record that, at a minimum, [large-
capacity] magazines are in common use. And, to the extent
that certain firearms capable of use with a magazine—e.g.,
certain semiautomatic handguns—are commonly possessed
by law-abiding citizens for lawful purposes, our caselaw
supports the conclusion that there must also be some
corollary, albeit not unfettered, right to possess the
magazines necessary to render those firearms operable”
(simplified)).4
In sum, firearms with magazines capable of firing more
than ten rounds are commonplace in America today. And
they are widely possessed for the purpose of self-defense,
the very core of the Second Amendment. Accordingly, an
overwhelming majority of citizens who own and use large-
capacity magazines do so for lawful purposes. “Under our
precedents, that is all that is needed for citizens to have a
right under the Second Amendment to keep such weapons.”
Friedman v. City of Highland Park, 136 S. Ct. 447, 449
4 California argues that our inquiry here must be objective rather than
“subjective.” We addressed this question in our en banc dissent. See
Duncan, 19 F.4th at 1153–54 (Bumatay, J., dissenting) (observing that
courts have relied on both an “objective and largely statistical inquiry”
on common usage as well as “broad patterns of use and the subjective
motives of gun owners”) (quoting N.Y. State Rifle & Pistol Ass’n v.
Cuomo, 804 F.3d 242, 256 (2d Cir. 2015)). Because large-capacity
magazines represent half of all magazines in the country, we need not
settle this question here. Given their overwhelming numbers, they are
necessarily used for lawful purposes.

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28 DUNCAN V. BONTA
(2015) (Thomas, J., joined by Scalia, J., dissenting from
denial of certiorari) (emphasis added).
3. The Large-Capacity Magazine Ban Is Not
Consistent with the Nation’s Historical Tradition
of Firearm Regulation
Once it is established that large-capacity magazines are
protected arms used for lawful purposes, California has the
burden of showing that its ban on large-capacity magazines
is “consistent with this Nation’s historical tradition of
firearm regulation.” Bruen, 142 S. Ct. at 2135. To meet this
burden, California must show historical regulations that are
analogues to its modern magazine ban. We recently
explored how this comparison works—
In determining whether the modern
regulation and the historical analogue are
“relevantly similar,” we must look to the
“how and why” of the two regulations; that
is, “whether modern and historical
regulations impose a comparable burden on
the right of armed self-defense and whether
that burden is comparably justified are
central considerations when engaging in an
analogical inquiry.”
Teter v. Lopez, 76 F.4th 938, 951 (9th Cir. 2023) (quoting
Bruen, 142 S. Ct. at 2132–33).
California points to four historical analogues to defend
its absolute ban on large-capacity magazines: (1) regulations
on “trap gun” contraptions; (2) regulations on the carry of
fighting knives and certain blunt objects and on the
concealed carry of pistols and revolvers; (3) regulations on

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DUNCAN V. BONTA 29
the use and possession of fully automatic and semi-
automatic firearms and ammunition feeding devices; and (4)
regulations on the storage of gunpowder.
But these historical analogues do not even come close to
the “relevantly similar” laws required by the Supreme Court.
a. Laws Regulating Trap-Gun Mechanisms
California first points to regulations on “trap gun”
mechanisms as a historical analogue for the banning of
large-capacity magazines. These devices refer to string or
wire contraptions that allowed a firearm to be discharged
remotely when triggered—without a user present.
According to California, 16 States had laws against trap-gun
devices, with the laws being enacted after the 1870s except
for a New Jersey ordinance dating to 1771.5 The New Jersey
law, for example, proscribed “a most dangerous Method of
setting Guns” when the gun is rigged “in such Manner” as to
“discharge itself, or be discharged by any String, Rope, or
other Contrivance.” 1763–1775 N.J. Laws 346, An Act for
the Preservation of Deer and Other Game, and to Prevent
Trespassing with Guns, ch. 539, §10.
Even if these laws are temporally relevant and could be
considered part of our tradition, there’s an obvious problem
with California’s comparison of trap-gun devices to large-
capacity magazines—trap-gun devices are not a firearm or
even part of a firearm. According to California’s expert, the
devices are made from string or wire hooked up to firearms.
So it’s doubtful that trap-gun devices themselves fall with
5 Several of the States that California cites for anti-trap laws seemingly
only banned the use of trap devices for hunting. We count Maryland,
Rhode Island, South Carolina (in 1869), South Dakota, and Wisconsin
as having only hunting—not absolute—bans.

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30 DUNCAN V. BONTA
the “Arms” protected by the Second Amendment. See
Bruen, 142 S. Ct. at 2132; Heller, 554 U.S. at 581–84
(concluding that to “bear arms” includes any “[w]eapons of
offence” or “thing that a man wears for his defence, or takes
into his hands,” that is “carr[ied] . . . for the purpose of
offensive or defensive action”).
But even if we viewed trap-gun contraptions as subject
to the Second Amendment’s protection, the burdens of
regulating trap-gun mechanisms are not at all analogous to
the burdens of banning large-capacity magazines. These
anti-trap laws only proscribed the method of discharging of
a firearm remotely. None worked to punish the possession
of any firearm or necessary firearm component. Nor did
they restrict a person’s direct use of a firearm for self-
defense or limit the number of bullets a person may
discharge from the firearm. So these laws are not “relevantly
similar” to California’s ban on the most common magazine
used in the Nation.
b. Laws Regulating the Carry of Fighting Knives
and Blunt Objects and the Concealed Carry of
Pistols
California next justifies its ban by looking at laws
regulating the carrying of bowie knives, long-bladed knives,
clubs, and blunt weapons and the concealed carry of pistols.
According to California, in the 1830s, four States enacted
laws barring the carrying of bowie knives, which later
expanded to most States by the 20th century. California’s
expert also asserts that several States enacted “anti-carry
laws” for clubs and other blunt weapons. Finally, California
claims that, by 1868, about a dozen States had laws
prohibiting carrying concealed pistols. These historical
analogues also fail to meet California’s burden.

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DUNCAN V. BONTA 31
Again, assuming the laws are historically relevant and
part of our tradition, most of these statutes suffer from a
similar flaw: They did not ban the possession of a weapon.
Instead, they mostly regulated the open or concealed
carrying of certain knives, clubs, or firearms. As for laws on
knives and clubs, they dealt mostly with carrying, concealed
carry, or taxes.6 In its emergency motion, California
identifies no specific historical law banning the possession
of a knife or club.7 As for the concealed-pistol laws, the
district court concluded that none prohibited keeping pistols
for all lawful purposes or carrying the guns openly. Duncan,
2023 WL 6180472, at *62. Nor has California identified
laws banning the possession of a pistol at home.
On the other hand, we agree with the district court that it
is “remarkable” that no law categorically banning all law-
abiding citizens from keeping or possessing a firearm existed
6 See, e.g., 1837 Miss. Laws 294 (prohibiting the use of bowie knives,
dirks, and some pistols in any fight in which a combatant was killed, as
well as prohibited their exposition in a rude or threatening manner
unnecessary for self-defense); 1871 Miss. Laws 819–20 (taxing bowie
knives, dirks, sword canes, and pistols); 1839 Ala. Laws 67 (banning
concealed carry of “any species of fire arms, or any bowie knife,” dirk,
or “any other deadly weapon”); 1887 Va. Acts 897 (banning concealed
carry of certain weapons, including dirks and bowie knives); 1927 R.I.
Pub. Laws 256 (allowing one-year concealed carry permits). See also
David B. Kopel et al., Knives and the Second Amendment, 47 U. Mich.
J.L. Reform 167, 180 (2013).
7 On appeal in a separate case, the State of Hawaii identified one statute
banning the possession of bowie knives: an 1837 Georgia statute that
said that no one shall “keep, or have about or on their person or elsewhere
. . . Bowie, or any other kind of knives.” Teter, 76 F.4th at 951 (quoting
1837 Ga. Laws 90, An Act to Guard and Protect the Citizens of this State,
Against the Unwarrantable and too Prevalent Use of Deadly Weapons,
§1). Our court held that this “one solitary statute is not enough to
demonstrate a tradition of an arms regulation.” Id. at 952.

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32 DUNCAN V. BONTA
during the relevant time periods. Id. at *49. According to
one scholar cited by the district court, the first regulation
prohibiting all law-abiding citizens from simple ownership
of a gun came in 1911—too late for our purposes. Id. (citing
Robert H. Churchill, Forum: Rethinking the Second
Amendment, 25 L. & Hist. Rev. 139, 161 (2007)).
California argues that this distinction makes no
difference—that we should treat anti-carry and anti-
possession laws as equivalent. But that ignores both Heller
and Bruen. In Bruen, we are told that the “central”
consideration in assessing historical analogues is “whether
modern and historical regulations impose a comparable
burden on the right of armed self-defense and whether that
burden is comparably justified.” Bruen, 142 S. Ct. at 2133.
In fact, the Court in Bruen rejected surety laws that required
certain persons to post bond before carrying weapons in
public as being insufficiently analogous to restrictions on
public carry for law abiding citizens. It did so because the
surety laws did not amount to a “ban[] on public carry” and
their “burden” on public carry was “likely too insignificant.”
Id. at 2148–49.
And in Heller, the Supreme Court made clear that the
need for “defense of self, family, and property is most acute”
at “the home.” 554 U.S. at 628. The Second Amendment
then “surely elevates above all other interests the right of
law-abiding, responsible citizens to use arms in defense of
hearth and home.” Id. at 635 (emphasis added). Thus,
prohibitions “banning from the home” the “most preferred
firearm in the nation to ‘keep’ and use for protection” does
not pass “constitutional muster.” Id. at 628–29.
Contrary to the State’s contention, the distinction
between anti-carry and anti-possession laws is critical. The

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DUNCAN V. BONTA 33
former limits only the way a person may use a firearm in
public. The latter categorically denies all possession of a
firearm for any purpose—even at home. While restrictions
on carrying a firearm—whether open or concealed—are a
significant burden, the burden of prohibiting a large-capacity
magazine anywhere, including in the home for self-defense,
is greater in kind and magnitude.
Indeed, we recently rejected a similar argument when
Hawaii made it illegal to possess “butterfly knives.” See
Teter, 76 F.4th at 951. We noted that laws banning carrying
a weapon are “different” than laws banning possession
because “they regulate different conduct.” Id. Thus, when
confronted with statutes that regulated only the carry of
knives, we considered it more important that Hawaii had not
identified a statute “categorically bann[ing] the possession
of any type of pocketknife.” Id.
c. Laws Regulating Fully Automatic and Semi-
Automatic Firearms and Ammunition
Feeding Devices.
California next argues that 20th-century restrictions on
automatic and semi-automatic firearms and ammunition
feeding devices act as historical analogues. California
groups a wide range of laws in this category. Some focused
solely on semi-automatic weapons capable of firing a set
number of rounds. Others on only fully automatic firearms.
Id. More still covered firearms of both types. Id. The one
commonality for all these laws is that they were all enacted
after 1917, with most passed after 1932. Thus, they cannot
serve as historical analogues justifying a large-capacity
magazine ban.
Given their recent vintage, these regulations offer little
support for the original public meaning of the Second

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34 DUNCAN V. BONTA
Amendment. To be clear, post-ratification history can be
relevant to show how meaning has been “liquidate[d] &
settle[d].” Bruen, 142 S. Ct. at 2136. But we must be careful
not to “giv[e] postenactment history more weight than it can
rightly bear.” Id. at 2136. Immediate post-ratification
history is the strongest at illuminating the understanding of
those steeped in the contemporary understanding of a
constitutional provision. But evidence from later in time
diminishes in relevance—otherwise, we risk “adoption or
acceptance of laws that are inconsistent with the original
meaning of the constitutional text [to] overcome or alter that
text.” Id. at 2137 (quoting Heller v. District of Columbia,
670 F.3d 1244, 1274 n.6 (D.C. Cir. 2011) (Kavanaugh, J.,
dissenting)). Thus, the Supreme Court has largely cabined
our inquiry to the period “through the end of the 19th
century.” Id. at 2136 (quoting Heller, 554 U.S. at 605).
Here, the restrictions on automatic and semi-automatic
firearms and ammunition feeding devices are far too late to
shed meaningful light on the original meaning of the Second
Amendment. Laws passed nearly half a century after the
ratification of the Fourteenth Amendment do little to clarify
what was understood when the constitutional text was
adopted.
Plus, to the extent that these laws ban automatic weapons
or features of automatic weapons, like machine guns, such
weapons are not analogous to large-capacity magazines.
Those weapons function differently, have a different
historical lineage and record of use, and offer a different type
of hazard than large-capacity magazines. Accordingly,
automatic weapons would warrant a separate consideration
of history and tradition under the Second Amendment.
These laws thus offer no relevance for large-capacity
magazines, which are in “common use” today and analogous

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DUNCAN V. BONTA 35
to arms in “common use” at the time of the ratification of the
Fourteenth Amendment.
d. Laws Regulating Gunpowder Storage
California lastly relies on 18th- and 19th-century
gunpowder-storage laws. Concerned with the dangers of
massive fires and explosions, the laws prohibited the
stockpiling of large quantities of gunpowder in one place.
Take the 1784 New York City law. It made it unlawful “to
have or keep any quantity of gun powder exceeding twenty-
eight pounds weight, in any one place, less than one mile to
the northward of the city hall . . . except in the public
magazine at the Fresh-water.” 1784 N.Y. Laws 627, An Act
to Prevent the Danger Arising from the Pernicious Practice
of Lodging Gun Powder in Dwelling Houses, Stores, or
Other Places, ch. 28. Another 1821 Maine law did the same
“for the prevention of damage by Fire.” 1821 Me. Laws 98–
99, An Act for the Prevention of Damage by Fire, and the
Safe Keeping of Gun Powder, ch. 25, §5.
These gunpowder-storage restrictions fail to establish a
historical tradition supporting a large-capacity magazine
ban. First, these laws do not offer a comparable burden on
the possession of a firearm or the way it is discharged. While
California’s ban on large-capacity magazines is directed at
prohibiting a firearm from firing more than ten rounds at
once, the gunpowder laws were only directed at preventing
the accumulation of explosive material. Foreclosing gun
owners from using the most common magazine is a starkly
greater burden than limiting the storage of gunpowder for
fire safety. In other words, gunpowder storage laws would
have a minimal effect on law-abiding citizens’ use of
firearms for self-defense. The same cannot be said for limits
on firing more than ten rounds at once.

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Indeed, the Supreme Court was well acquainted with
these gunpowder laws at the time of Heller. Justice Breyer,
in dissent, referred extensively to these laws as an analogue
to the District of Columbia’s handgun ban. Heller, 554 U.S.
at 685–87 (Breyer, J., dissenting). But the Court rejected
that comparison: “Justice BREYER cites . . . gunpowder-
storage laws that he concedes did not clearly prohibit loaded
weapons, but required only that excess gunpowder be kept
in a special container or on the top floor of the home.
Nothing about those fire-safety laws undermines our
analysis; they do not remotely burden the right of self-
defense as much as an absolute ban on handguns.” Id. at 632
(majority opinion). Likewise, those fire-safety laws do not
create a comparable burden to the absolute ban on the most
owned magazines.
*
Based on this analysis, no historical analogue justifies
California’s ban. It thus will not succeed on the merits.
B.
California’s Asserted Irreparable Injury Does Not
Justify a Stay
Beyond likelihood of success on the merits, California
also fails to establish a sufficient irreparable injury to
warrant a stay. “[A]t this juncture, the government has the
burden of showing that irreparable injury is likely to occur
during the period before the appeal is decided.” Doe #1 v.
Trump, 957 F.3d 1050, 1059 (9th Cir. 2020).
Often, a State may “suffer a form of irreparable injury”
when it is “enjoined by a court from effectuating statutes
enacted by representatives of its people.” Maryland v. King,
567 U.S. 1301, 1303 (2012) (simplified) (Roberts, C.J., in

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DUNCAN V. BONTA 37
chambers); see also Coalition for Econ. Equity v. Wilson,
122 F.3d 718, 719 (9th Cir. 1997). But that doesn’t always
settle the question. We’ve long said that the government
“cannot reasonably assert that it is harmed in any legally
cognizable sense by being enjoined from constitutional
violations.” Zepeda v. INS, 753 F.2d 719, 727 (9th Cir.
1983); Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir.
2013) (holding that the government “cannot suffer harm
from an injunction that merely ends an unlawful practice”).
With this background, California cannot make a strong
showing of irreparable harm sufficient to tip this factor in
favor of a stay. California argues that without a stay, large-
capacity magazines would immediately flood the State. But,
as we’ve said, California does not suffer any harm by being
prevented from infringing Second Amendment rights.
Even still, nothing in the district court’s injunction
prevents California’s enforcement of its rigorous
background, registration, and prohibited-person laws. See,
e.g., Cal. Penal Code § 30370 (setting out the background
check procedure for approving purchase or transfer of
ammunition); Cal. Penal Code § 29810 (restricting certain
felons from possessing magazines); Cal. Code Regs. Tit. 11,
§ 5483 (requiring maintenance of transaction records for
large-capacity magazines); Cal. Penal Code § 16150(b)
(defining ammunition as “any bullet, cartridge, magazine,
clip, speed loader, autoloader, ammunition feeding device,
or projectile capable of being fired from a firearm with a
deadly consequence”).
Moreover, we cannot ignore large-capacity magazines’
ubiquity elsewhere in the country. As stated earlier, it is
undisputed that over 100 million large-capacity magazines
exist nationwide—with some estimates being five times that

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38 DUNCAN V. BONTA
number. They account for half of all magazines nationwide.
Likely tens of millions of these magazines already exist in
other parts of the Ninth Circuit. Indeed, the majority even
concedes that Californians purchased millions of large-
capacity magazines in 2019. Given the widespread
popularity and common usage of large-capacity magazines,
we need not defer to California’s speculative prediction of
catastrophic harm.
Given these considerations, California has not made a
sufficient showing of irreparable harm.
C.
The Balance of Interests Favors No Stay
For the balance-of-interests factor, we generally
“explore the relative harms to [an] applicant and respondent,
as well as the interests of the public at large.” Trump v. Int’l
Refugee Assistance Project, 582 U.S. 571, 580 (2017) (per
curiam) (simplified). Given California’s failure to satisfy
the first two stay factors, we don’t need to address this factor.
See Al Otro Lado v. Wolf, 952 F.3d 999, 1007 (9th Cir.
2020). But even if California could meet the first two stay
factors, it still cannot prevail on the last.
We acknowledge that California has a legitimate interest
in promoting public safety and preventing gun violence.
And, in general, the State may enact laws to further these
aspirations. We also don’t doubt California’s sincere belief
that large-capacity magazines may pose “particular threats
to public safety.” For example, California points to statistics
showing the use of large-capacity magazines in mass
shootings. While California’s concerns are serious, they are
not enough to tip this factor in favor of a stay.
We reach this conclusion for three reasons:

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DUNCAN V. BONTA 39
First, “[i]t is always in the public interest to prevent the
violation of a party’s constitutional rights.” Index
Newspapers, 977 F.3d at 838 (simplified); see also Gordon
v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013)
(“[E]nforcement of an unconstitutional law is always
contrary to the public interest.”). California’s ban deprives
its citizens of the ability to fire a gun more than ten times in
self-defense. Contrary to the majority’s claim, the existence
of a “wide range of firearms”—which cannot fire more than
ten rounds without reloading—does not mitigate that
deprivation. So the public interest favors denying a stay
here.
Second, as stated above, California can have “no
legitimate interest in enforcing an unconstitutional
ordinance.” KH Outdoor, LLC v. City of Trussville, 458 F.3d
1261, 1272 (11th Cir. 2006). So any conversation about the
importance of the State’s interests in public safety and the
prevention of gun violence ends when the means used to
further them violate the Constitution. Thus, California
cannot point to a strong interest on its side.
Finally, we cannot forget that the Supreme Court has
very clearly ended interest balancing when it comes to the
Second Amendment. The Second Amendment, the Court
said, “is the very product of an interest balancing by the
people and it surely elevates above all other interests the
right of law-abiding, responsible citizens to use arms for
self-defense.” Bruen, 142 S. Ct. at 2131 (simplified). It is
“this balance—struck by the traditions of the American
people—that demands our unqualified deference.” Id. And
we cannot backdoor interest-balancing through the stay
factors. Thus, while we understand the right to bear arms’
“controversial public safety implications,” McDonald, 561
U.S. at 783, that does not give us license to ignore its

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40 DUNCAN V. BONTA
“unqualified command,” Bruen, 142 S. Ct. at 2126
(simplified).
The balance of public and State interests is clear. It
weighs against granting a stay.
III.
Over and over, our circuit has enjoined government
actions that would lead to “the deprivation of constitutional
rights,” much like the district court did here. Melendres v.
Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (simplified). We
have done this for the First Amendment, Riley’s Am.
Heritage Farms v. Elsasser, 32 F.4th 707, 731 (9th Cir.
2022), the Fourth Amendment, Melendres, 695 F.3d at 1002,
and the Fifth Amendment, Rodriguez, 715 F.3d at 1144–45.
Today, the majority proves yet again that our court treats the
Second Amendment as somehow inferior to the others. But
the right of the people to keep and bear arms cannot be
dismissed as “second-class.” McDonald, 561 U.S. at 780;
Bruen, 142 S. Ct. at 2156.
This court has repeatedly acquiesced to the violation of
Californians’ right to bear arms. Now it does so again,
without even analyzing the merits of this case. Enough
should be enough.
We respectfully dissent.

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