On Tuesday, August 23, 2022, America’s Future joined 12 other nonprofit organizations to submit a Motion to Leave to File an Amicus brief along with the Amicus Brief to the Ninth Circuit Court of Appeals in Duncan, et al. v. Rob Bonta, in His Official Capacity as Attorney General of California, No. 19-55376 (2021). Should the Ninth Circuit grant our Motion, our Amicus brief is filed in support of Appellant Virginia Duncan’s, et al. position that California Penal Code § 32310, as amended by Ca. Senate Bill 1446 together with Proposition 63 (2016 referendum) is an unconstitutional infringement of Appellants’ Second and Fourteenth Amendment right to bear arms.

This is our second brief filing in this case. On April 1, 2022, America’s Future filed a brief to the Supreme Court of the United States (SCOTUS). Following the SCOTUS’s landmark Second Amendment decision in New York State Rifle & Pistol Association v. Bruen 597 U.S (2022) on June 23, 2022, the SCOTUS vacated the Ninth Circuit’s en banc decision, sending it back to the Circuit for further consideration based on new law.

As Justice Clarence Thomas stated in writing for the majority in the landmark decision, clarifying earlier Second Amendment SCOTUS decisions [i.e., Heller (2008) and McDonald (1985)], lower courts must now refrain from employing a “two-step” test, but instead shall rule on Second Amendment cases based solely upon the text of, believe it or not, the Second Amendment. In his typical straightforward and astute fashion, Justice Thomas declares, “Today, we decline to adopt that two-part approach…. Despite the popularity of this two-step approach, it is one step too many….”

Justice Thomas explained that in the Second Amendment context, there is only one question a court must tackle, “the test that the Court sets forth…requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding [and nothing more].” He further wrote, lower courts should apply the law from Bruen to matters at issue before them using two 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. Because individual self-defense is the central component of the Second Amendment right these two metrics are central considerations when engaging in an analogical inquiry.” [internal citations omitted]

Turning to the case at bar, i.e., Duncan v Bonta, No. 19-55376 (2021), the Ninth Circuit should cast-off judicial activism, embrace judicial restraint and reconsider the constitutional challenge in this case clear-eyed. The SCOTUS in Bruen laid out the appropriate way to analyze whether California’s statutory scheme prohibiting law-abiding citizens from possessing large-capacity magazines infringes the Second Amendment as applied to the states through the Fourteenth Amendment. To us it is clear – California regulations contravene the fundamental right to bear arms for self-defense enjoyed by law-abiding citizens.

Citing Bruen, our Amicus brief explains the task before the Ninth Circuit is simple, stating, “The only issue to decide is whether California has ‘demonstrated that the regulation is consistent with this Nation’s historical tradition of firearm regulation.’ There is to be no means-end scrutiny, no need for recitations of the dangers and risks of firearms. There is no deference to the legislative branch whatsoever, because ‘while that judicial deference to legislative interest balancing is understandable — and, elsewhere, appropriate — it is not deference that the Constitution demands here. The Second Amendment ‘is the very product of an interest balancing by the people….’.”

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